Smt. Putalabai W/O Daulatraya vs Gurunath S/O Saibanna Kamalapur ...
2022 Latest Caselaw 5169 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.32565/2013 (MV)

Between:

Smt. Putalabai W/o Daulatraya,
Age: 59 years,
Occ: Coolie & Household,
R/o Nandikur Village,
Tq. & Dist. Gulbarga-585 101.
                                              ... Appellant

(By Sri Khadme Umesh &
 Sri U.L.Sutar, Advocates)

And:

1.     Gurunath S/o Saibanna Kamalapur,
       Age: Major, Occ: Driver Jeep
       Bearing Regn.No.KA-32/M-2717
       R/o KNNL Division,
       Ghandori Nala Project,
       Mahagaon Cross,
       Gulbarga District-585 101.

2.     The Executive Engineer,
       KNNL Ghandori Nala Project Division,
       Mahagaon Cross,
       Tq. & Dist. Gulbarga-585 101.
                              2




3.    Karnataka Government
      Insurance Department
      (KGID), Bangalore through
      KGID, Nehru Gunj,
      Bambu Bazar, Gulbarga-585 101.
                                          ... Respondents

(By Sri Gourish S. Khashampur, Advocate for R2;
 Smt. Maya T.R, HCGP for R3;
Notice to R1 is served)


      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for the records in
MVC No.661/2012 on the file of III-Additional Senior Civil
Judge and MACT Gulbarga dated 14.02.2013.         Set aside
the judgment and award dated 14.02.2013 in MVC
No.661/2012 passed by III-Additional Senior Civil Judge
and MACT Gulbarga, by allowing the above appeal, by
enhancing the award amount.


      This appeal coming on for Hearing, this day, the
Court delivered the following:-


                       JUDGMENT

The learned High Court Government Pleader

accepts notice for respondent No.3.

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 14.02.2013

passed by III-Additional Senior Civil Judge and Motor

Accident Claims Tribunal, Gulbarga, (for short

hereinafter referred to as 'the Tribunal') in MVC

No.661/2012.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is the petitioner and the

respondents are the respondents before the Tribunal.

3. Facts giving rise to filing of this appeal are as

under:

On 10.03.2012 at about 12.00 noon the petitioner

was travelling in the Auto Rickshaw bearing registration

No.KA.32/9852 towards Ram Mandir side and the said

auto was driven by its driver very slowly and cautiously.

When the said Auto Rickshaw was near Reddy Petrol

Pump, at that time, a Jeep bearing registration

No.KA.32/M-2717 came in a high speed and in a rash

and negligent manner and dashed to the said Auto

Rickshaw. Due to which, the said Auto Rickshaw turned

turtle, the petitioner fell down and sustained grievous

injuries and took treatment for the injuries sustained in

the accident for which he spent huge amount.

Therefore, the petitioner filed claim petition under

Section 166 of the Act seeking compensation for the

injuries sustained in the road traffic accident.

4. Respondent Nos.1 and 2 filed common

written statement denying the averments made in the

claim petition. It is contended that the vehicle was

insured with respondent No.3 as on the date of the

accident. Respondent No.3 filed written statement

denying the averments made in the claim petition and

prayed to dismiss the claim petition.

5. The Tribunal on the basis of the pleadings of

the parties framed the following issues:

i. Whether the Petitioner proves that, the accident dated 10-3-2012 at about

12.00 noon has taken place due to rash and negligent driving of Jeep bearing No.KA.32/M-2717 by its driver and due to impact she sustained injuries?

ii. Whether the Petitioner is entitled for compensation? If so, how much and from whom?

iii. What order or award?

6. In order to prove the case, petitioner

examined herself as PW.1 and in order to prove the

disability, examined the doctor as PW.2 and got marked

the documents as Exs.P1 to P13. The respondents have

not adduced any evidence either oral or documentary.

7. The Tribunal, after recording the evidence

and considering the material on record, held that the

petitioner has proved that he met with accident which

occurred on 10.03.2012 due to rash and negligent

driving of the driver of the offending vehicle and held

that the petitioner is entitled for compensation and

consequently, allowed the claim petition in part and

awarded compensation of Rs.1,47,000/- with interest at

the rate of 6% per annum from the date of petition till

deposit and held that respondent No.3 is liable to pay

compensation.

8. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioner/appellant has

filed this appeal seeking enhancement of compensation.

9. Inspite of service of notice, none appears for

respondent No.1.

10. Heard the learned counsel for the

petitioner/appellant, learned counsel for respondent

No.2 and learned High Court Government Pleader

appearing for respondent No.3.

11. The learned counsel for the petitioner

submits that the compensation awarded by the Tribunal

is on the lower side and that the Tribunal has taken the

income of the petitioner at Rs.3,000/- per month which

is on the lower side. He further submits that though the

doctor has opined that the petitioner has suffered

permanent disability to an extent of 35% to 40% to the

whole body, the Tribunal has taken the disability at

25%. On these grounds, he prays to allow the appeal.

12. Per contra, the learned High Court

Government Pleader appearing for respondent No.3

supports the impugned judgment and award passed by

the Tribunal and she further submits that the

compensation awarded by the Tribunal is just and

reasonable and does not call for interference and prayed

to dismiss the appeal.

13. 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.

14. The occurrence of the accident and the

injuries sustained by the petitioner 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 charge sheet which is marked as Ex.P4. From

perusal of Ex.P4, it is clear that the accident occurred

due to rash and negligent driving of the driver of the

offending vehicle.

15. Perusal of the impugned judgment would

indicate that the petitioner did not produce any evidence

with regard to her income before the Tribunal.

Therefore, as per the chart provided by the Karnataka

State Legal Services Authority, the notional income will

have to be taken into consideration. In terms of the

chart, for the accident of the year 2012, the notional

income of the petitioner will have to be taken at

Rs.6,500/- as against Rs.3,000/- per month taken by

the Tribunal. In order to establish that the petitioner has

suffered functional disability, petitioner examined the

doctor as PW.2 who has opined that the petitioner has

suffered 70% disability to the right lower limb and 35%

to 40% to the whole body. Considering the medical

records produced by the petitioner and the evidence of

PW.2, the Tribunal has taken the disability at 25% to the

whole body and the same is just and proper. Taking

into account the age of the petitioner who was 58 years

at the time of accident, multiplier of "9" has to be

adopted. Therefore, the petitioner would be entitled to

compensation towards loss of future income at

Rs.1,75,500/- (Rs.6,500/- X 12 X 9 X 25/100).

16. Considering evidence of P.W.2 and 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 and sufferings                10,000/-    20,000/-
Medical expenses                   40,000/-    40,000/-
Attendant,    nourishment
                                      3,000/-      10,000/-
and conveyance charges
Loss of earning during
treatment           period            3,000/-      19,500/-
(6,500x3)
Loss of future earning             81,000/-      1,75,500/-
Loss of amenities                  10,000/-        25,000/-
Total                           1,47,000/-       2,90,000/
Enhanced by this Court                          1,43,000/-


         17.   The   appeal    was     dismissed   for   non-

prosecution on 25.09.2014. However, there was delay

of 893 days in filing the recalling application by the

petitioner/appellant. Hence, the petitioner/appellant is

not entitled to interest for delayed period of 893 days in

filing the recalling application.

18. 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.

      iii.   The       petitioner    is    entitled     to     an
             enhanced               compensation               of

Rs.1,43,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization. However, the petitioner/appellant is not entitled to interest for the delay period of 893 days in filing the recalling application.

      iv.    Respondent No.3 is directed to deposit
             the   compensation           amount      within    a

period of eight weeks from date of the receipt of certified copy of this judgment.

SD/-

JUDGE NB*