Karnataka High Court
Sadashiv S/O Chandrayya @ ... vs Laxman S/O Ganapathi Mohale And ... on 21 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.31867/2013 (MV)
Between:
Sadashiva S/o Chandrayya @
Chandrashekhar Gadagimath @ Hiremath,
Age: 22 years, Occ: Private work,
R/o Gadagimath House, Biddapur Colony,
Gulbarga-585 102.
... Appellant
(By Sri S.M.Bidari, Advocate)
And:
1. Laxman S/o Ganapathi Mohale,
Age: 37 years, Occ: Driver,
R/o Balsur, Omerga Taluk,
Osmanabad District.
2. Mohamad Usman Ali
S/o Shaikh Adam Soudagar,
Aged: Major, Owner of the vehicle,
R/o Auti Plotting Omerga,
Osmanabad District,
Maharashtra State.
3. Royal Sundaram Alliance
Insurance Co. Ltd.,
Sundaram Towers, 45 & 46,
2
white Road,
Chennai (Tamil Nadu).
... Respondents
(By Sri C.S.Kalburgi, Advocate for R3;
Notice to R1 served; V/o dated 11.02.2019
notice to R2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V.Act praying to call for records and
modify the judgment and award dated 26.09.2012, passed
by the learned II-Additional Senior Civil Judge and
M.A.C.T., Gulbarga, in MVC No.692/2010, by enhancing
the compensation amount from Rs.1,49,537/- to
Rs.8,00,000/- and also enhance the interest payable by
the respondents on the compensation amount and further
be pleased to allow this appeal filed by the appellant
herein.
This appeal coming on for Hearing, this day, the
Court delivered the following:-
JUDGMENT
This appeal is filed by the petitioner under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the judgment and award dated 26.09.2012
passed by II-Additional Senior Civil Judge and Motor
Accident Claims Tribunal, Gulbarga, (for short hereinafter
referred to as 'the Tribunal') in MVC No.692/2010.
2. Parties are referred to as per their ranking
before the Tribunal. Appellant is the petitioner and
respondents are the respondents before the Tribunal.
3. Facts giving rise to filing of this appeal are as
under:
On 21.01.2010 at about 7.00 a.m., when the
petitioner was going on his Hero Honda Motorcycle bearing
registration No.KA-22-U-2282 in front of Priyadarshini
Hotel, near Sindagi Cross on Shahapur-Jewargi main road,
the driver of the lorry bearing registration No.MH-25-B-
9559 came from Shahapur side in a rash and negligent
manner and dashed against the motorcycle and caused the
accident. On account of the said accident, petitioner
sustained grievous injuries and took treatment in the
hospital for which he has spent huge amount. Hence,
petitioner filed claim petition under Section 166 of the Act
seeking compensation of Rs.8,00,000/-.
4. Inspite of service of notice, respondent No.1
remained absent and he was placed exparte. Respondent
No.2 filed written statement denying the averments made
in the claim petition. It is contended that the driver of the
offending vehicle was holding valid and effective driving
licence as on the date of the accident and the offending
vehicle was insured with respondent No.3. Therefore,
respondent No.3 is liable to pay compensation to the
petitioner. Respondent No.3 filed written statement
denying the averments made in the claim petition and
denied the age, avocation and income of the petitioner. It
is contended that the driver of the offending vehicle was
not holding valid and effective driving licence as on the
date of the accident to drive the said class of vehicle and
prayed to dismiss the claim petition as against respondent
No.3.
5. The Tribunal on the basis of the pleadings of
the parties framed the following issues:
i. Whether the Petitioner proves that on
21-01-2010 at about 7-00 a.m., when he
was going on his Hero Honda Motorcycle
bearing Regn.No.KA-22-U-2282 on the
road in front of Priyadarshini Hotel, near
Sindagi Cross on Shahapur-Jewargi main
road, the driver of the lorry bearing
Reg.No.MH-25-B-9599 came driving the
same from Shahapur side in a rash and
negligent manner and dashed against the
said motor cycle and caused accident
and that on account of the said accident,
he sustained grievous injuries?
ii. Whether the respondent No.3 proves
that the accident has occurred due to the
rash and negligent riding of the said
motor cycle by the Petitioner?
iii. Whether the Respondent No.3 proves
that the driver of the said lorry was not
holding valid and effective Driving
Licence as on the date of the accident to
driver the said class of vehicle?
iv. Whether the Petitioner is entitled for
compensation? If so, what is the
Quantum of compensation to which the
Petitioner is entitled and from whom the
compensation is recoverable?
v. What Order or Award?
6. In order to prove the case, the petitioner
examined himself as PW.1 and examined two witnesses as
PWs.2 and 3 and got marked the documents as Exs.P1 to
P19. The respondents have not adduced either oral or
documentary evidence.
7. The Tribunal, after recording the evidence and
considering the material on record, held that the petitioner
met with accident and sustained injuries in the accident
which occurred due to rash and negligent driving of the
driver of the offending vehicle and further recorded finding
that respondent No.3 has failed to prove that the accident
occurred due to rash and negligent riding of the
motorcycle by the petitioner and further recorded finding
that respondent No.3 has failed to prove that the driver of
the offending vehicle was not holding valid and effective
driving licence as on the date of the accident to drive the
said class of vehicle and further held that the petitioner is
entitled for compensation and consequently allowed the
claim petition in part and awarded compensation of
Rs.1,49,537/- along with interest at the rate of 6% per
annum from the date of petition till the date of deposit.
8. Being dissatisfied with the compensation
awarded by the Tribunal, the petitioner/appellant has filed
this appeal seeking enhancement of compensation.
9. Heard the learned counsel for the
petitioner/appellant and the learned counsel for the
respondent No.3-Insurance company.
10. The learned counsel for the
petitioner/appellant submits that the compensation
awarded by the Tribunal is on the lower side. He submits
that in order to prove the monthly income, the petitioner
has produced documents marked as Exs.P11 and 12. In
order to prove the contents of Ex.P11-salary certificate,
the petitioner examined the author of the document as
P.W.2. He further submits that in order to prove the
disability examined the doctor as P.W.3 who has opined
that the petitioner has suffered disability at 40% to the
whole body wherein the Tribunal has taken disability at 8%
which is on the lower side. On these grounds, he prays to
allow the appeal.
11. Per contra, the learned counsel for respondent
No.3-Insurance company submits that the compensation
awarded by the Tribunal is just and reasonable and does
not call for any interference of this Court and prays for
dismissal of the appeal.
12. I have perused the records and considered the
submissions made by the learned counsel for the parties.
The point that arises for consideration is with regard to
quantum of compensation.
13. The occurrence of the accident and the injuries
sustained by the claimant in the said accident is not in
dispute. In order to prove that the accident has occurred
due to rash and negligent driving of the driver of the
offending vehicle, the petitioner has produced copy of the
charge sheet and the same is marked as Ex.P3 which
discloses that the accident occurred due to rash and
negligent driving of the driver of the offending vehicle.
14. Perusal of the impugned judgment would
indicate that the petitioner/appellant has contended that
he was earning a sum of Rs.6,000/- per month from
private work. He has produced salary certificate as per
Ex.P11 issued by Shakuntala W/o Shankaragouda in which
it is stated that the petitioner was engaged by her to
distribute newspaper to the houses and she was paying
Rs.2,000/- per month. It is further case of the petitioner
that he was working as Peon in TVS Showroom and the
official of the Showroom issued salary certificate marked
as Ex.P12. In order to prove Ex.P12, petitioner has not
examined the author of the said document. In the
absence of proof of income, notional income of the
petitioner has to be taken as per the chart provided by the
Karnataka State Legal Services Authority. In terms of the
chart, for the accident of the year 2010, the notional
income of the petitioner will have to be taken at
Rs.5,500/- as against Rs.4,000/- per month taken by the
Tribunal. PW.3-Doctor has issued disability certificate as
per Ex.P8 assessing the disability at 40% to the whole
body. Considering that P.W.3 is not the treated doctor
and he has only issued disability certificate, the Tribunal
has assessed the disability at 8% to the whole body and
the same is on the lower side. Hence, the same is
required to be enhanced to 10%. Taking into account the
age of the petitioner who was 22 years at the time of
accident, multiplier of "18" has to be adopted. Therefore,
the petitioner would be entitled to compensation towards
loss of future income at Rs.1,18,800/- (Rs.5,500/- X 12 X
18 X 10/100).
15. Considering the nature of the injuries
sustained by the petitioner, the compensation awarded by
the Tribunal is on the lower side and the same is re-
assessed in the following manner:
Compensation awarded in
Rs.
Particulars
By the By this
Tribunal Court
Pain, shock and sufferings 20,000/- 30,000/-
Loss of amenities of life 15,000/- 25,000/-
Loss of income during the
4,000/- 16,500/-
laid-up period (5,500 x 3)
Attendant charges, extra
nourishment and 8,250/- 15,000/-
conveyance
Medical expenses 33,167/- 33,167/-
Loss of future income 69,120/- 1,18,800/-
Total 1,49,537/- 2,38,467/
Enhanced by this Court 88,930/-
16. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified. The
petitioner is entitled to an enhanced
compensation of Rs.88,930/- along with
interest at the rate of 6% per annum
from the date of petition till the date of
realization.
iii. Respondent No.3-Insurance company is
directed to deposit the enhanced
compensation amount within a period of
eight weeks from date of the receipt of
certified copy of this judgment.
Sd/-
JUDGE
NB*
