Karnataka High Court
Mallangouda S/O Late Jagadevappa ... vs Dileep Kumar S/O Rajaram Bhosale ... on 17 March, 2022
Bench: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
M. F. A. NO.200461 OF 2021 (MV)
BETWEEN:
MALLANGOUDA,
S/O LATE JAGADEVAPPA PATIL,
AGED ABOUT 43 YEARS,
OCC: LEGAL PRACTITIONER,
R/O. BANASHANKARI NAGAR,
OLD JEWARGI ROAD, KALABURAGI.
... APPELLANT
(BY SMT.GEETHA SAJJANSHETTY, ADVOCATE)
AND:
1. DILEEP KUMAR,
S/O RAJARAM BHOSALE,
AGED ABOUT 60 YEARS,
OCC: DRIVER,
R/O. PLOT NO.52, CIB COLONY,
BEHIND CENTRAL BUS STAND,
KALABURAGI - 585 103.
(OWNER-CUM-DRIVER).
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.,
DR. JAWALI COMPLEX,
2
SUPER MARKET,
KALABURAGI - 585 103.
...RESPONDENTS
(BY SRI. SANJAY M JOSHI, ADVOCATE FOR R-2
NOTICE TO R-1 D/W V/O DTD:17.08.2021)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT BY THE ADVOCATE FOR APPELLANT, PRAYING THAT
THIS HONOURABLE COURT MAY BE PLEASED TO CALL FOR
THE RECORDS AND MODIFY THE JUDGMENT AND AWARD
DATED 25.07.2019 PASSED BY THE COURT OF III ADDL.
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, KALABURAGI IN FILE BEARING MVC
NO.621/2017 AND BE PLEASED TO ALLOW THE CLAIM
PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY
THE APPELLANT.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the petitioner being
aggrieved by the judgment and award dated
25.07.2019 passed in MVC No.621/2017 by the III
Additional Senior Civil Judge and Motor Accident
Claims Tribunal, Kalaburagi.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellant is the petitioner and respondents
are the respondents before the Tribunal.
3. Facts giving rise to the filing of the appeal
briefly stated are that on 31.01.2017 at about 2.30
p.m., the petitioner after completion of his legal
profession work proceeding to his house on his
motorcycle bearing registration No.KA-32/U-9301,
when he reached near Kalaburagi Kadai Hotel, on old
jewargi road, at that time, one Auto Rickshaw bearing
registration No.KA-32/B-4323 came from back side at
a high speed in a rash and negligent manner, dashed
to the vehicle of the petitioner. As a result of the
aforesaid accident, the petitioner sustained grievous
injuries and was hospitalized. The petitioner was
doing legal profession and was earning more than
Rs.45,000/- to Rs.50,000/- per month and the
petitioner is paying the income tax on very year.
After the accident, petitioner is unable to do day to
day work in his legal profession. Hence, the petitioner
filed a petition under Section 166 of the M.V.Act,
seeking for enhancement of compensation on the
account of injuries sustained in the road traffic
accident.
4. The respondent No.1 appeared through his
counsel and filed written statement denying the
averments made in the claim petition and also
contended that as on the date of accident the policy
and the driving license are valid. Respondent No.2
appeared through its counsel and filed written
statement denying the averments made in the claim
petition and also denied the involvement of Auto
Rickshaw in the accident and contended that the
accident was occurred due to rash and negligent riding
of the rider of motorcycle - petitioner and there is no
negligence on the part of respondent No.1. Hence,
prayed to dismiss the petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues. The petitioner
examined himself as PW-1 and Doctor was examined
as PW-2 and got marked the documents as Ex.P1 to
Ex.P15. On behalf of the respondents, respondents
have not adduced any oral or documentary evidence.
Respondent No.2 - Insurance Company has got
marked Insurance Policy as Ex.R1 with consent. The
Tribunal after recording the evidence and considering
the material on record held that petitioner has proved
that on 31.01.2017 he met with an accident and
sustained grievous injuries due rash and negligent
driving of the driver of Auto Rickshaw bearing
registration No.KA-32/B-4323 and further, held that
petitioner is entitled for compensation and
consequently allowed the petition in part and awarded
a compensation of Rs.3,93,943/- with with interest at
the rate of 6% p.a. and directed the respondent No.2
to deposit the compensation amount along with
interest. Being dissatisfied with the compensation
awarded by the Tribunal, the petitioner has filed the
present appeal seeking for enhancement of
compensation amount.
6. Heard learned counsel for the petitioner
and learned counsel for respondent No.2.
7. The learned counsel for the petitioner has
contended that petitioner is an Advocate and earning
monthly income of Rs.45,000/- to Rs.50,000/-. In
support of his income, petitioner has produced the
copy of I.T. returns marked as Ex.P14 and Ex.P15. He
further submits that the Tribunal did not consider
Ex.P14 and Ex.P15 and taken income of the petitioner
at Rs.10,000/- per month, which is contrary to Ex.P14
and Ex.P15. He further submits that the Tribunal has
also considered the annual income on the lower side.
Hence, on these grounds, he prays to allow the
appeal.
8. Per contra, learned counsel for respondent
No.2 -Insurance Company supports the impugned
judgment and award passed by the Tribunal. He
further submits that the compensation awarded by the
Tribunal is just and proper and does not call for
interference. Hence, sought for dismissal of the
appeal.
9. Perused the records and considered the
submissions made by learned counsel for the parties.
10. The point that arise for consideration is
with regard to quantum of compensation.
11. It is not in dispute that the petitioner met
with an accident and sustained permanent disability.
In order to prove that the accident was occurred due
to rash and negligent driving of the driver of the Auto
Rickshaw, the petitioner has produced copy of FIR and
charge-sheet marked as Ex.P1 and Ex.P3. Ex.P3
discloses that the accident occurred due to rash and
negligent driving of the driver of the offending vehicle.
Insofar as quantum of compensation is concerned,
petitioner has taken a contention in the claim petition
that the petitioner was legal practitioner and was
getting income of Rs.45,000/- to Rs.50,000/- per
month. In support of his income, he has produced
Ex.P14 and Ex.P15 copy of I.T returns which was filed
on 31.12.2015 prior to the accident. As per Ex.P14
the annual total income of the petitioner is show as
Rs.3,63,540/. In view of the admission of the
petitioner that he has continued in his profession, it is
just and proper to hold the income of the petitioner at
Rs.20,000/- per month. So annual income will be
Rs.2,40,000/-. In Ex.P6 wound certificate age of the
petitioner is shown as 35 years and in order to
establish that the petitioner has suffered permanent
disability the petitioner has got examined the Doctor
as PW-2 on examination of petitioner has issued
disability certificate, which is marked as Ex.P9.
Further, PW-2 has stated that petitioner has suffered
permanent disability of 40% to the whole body,
wherein the Tribunal has taken disability of the
petitioner at 14% to the whole body and permanent
disability assessed by the Tribunal is on the lower
side. Thus, this Court reassess the physically
disabilities at 15% to the whole body. The petitioner
was aged about 35 years as on the date of accident,
the multiplier apply to his age group is 15.
Considering the injuries and evidence of PW-2, this
Court, reassess the compensation by the following
course.
i. Towards pain and suffering
Rs.50,000/- as awarded by the
Tribunal is maintained.
ii. Towards loss of future income will be
20,000/- X 12 X 15 X 15/100 =
Rs.5,40,000/-.
iii. Towards attendant, food and
conveyance charges Rs.20,000/- as
awarded by the Tribunal is
maintained.
iv. Towards medical expenses
Rs.46,943/- as awarded by the
Tribunal is maintained.
v. Towards loss of income during
treatment period Rs.15,000/- as
awarded by the Tribunal is
maintained.
vi. Towards loss of amenities
Rs.10,000/- as awarded by the
Tribunal is maintained.
Thus, the petitioner is entitled for total
compensation of Rs.6,81,943/- as against
Rs.3,93,943. The petitioner is entitled for enhanced
compensation of Rs.2,88,000/-.
12. In view of the above discussion, the appeal
is allowed in part. Judgment and award passed by the
Tribunal dated 25.07.2019, is modified. The
petitioner is entitled for enhanced compensation of
Rs.2,88,000/- along with interest at the rate of 6%
p.a. from the date of filing of the petition till the date
of realization. Respondent No.2 - Insurance Company
is directed to deposit the enhanced compensation
amount along with interest, within a period of eight
weeks from the date of receipt of copy of this
judgment.
SD/-
JUDGE
GRD
