Smt. Hamida W/O Dawal Shaikh @ ... vs Gajanan S/O Bhanudas Khulpe And ...
2022 Latest Caselaw 5246 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.32841/2013 (MV)


Between:
Smt. Hamida W/o Dawal Shaikh @ Mulla,
Age: 21 years, Occ: Household & Agriculture,
R/o Tale - Hipparga, Tq. North Solapur,
Dist: Solapur-413 001.
                                               ... Appellant
(By Sri.Basavaraj R.Math, Advocate)

And:

1.     Gajanan S/o Bhanudas Khulpe,
       Age about 46 years, Occ: Business,
       R/o Gherdi, Tq. Sangola,
       Dist. Solapur-413 001.

2.     The Divisional Manager,
       The New India Assurance Company Ltd.,
       Hanamashetti Building, Gurukul Road,
       Bijapur-586 101.
                                           ... Respondents

(Notice to R1 is dispensed with;
By Sri.S.S.Aspalli, Advocate for R2)
                              2




     This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to call for records and modify
the impugned judgment and award dated 18.04.2013
passed by the MACT No.V, Bijapur in MVC No.1/2012.

      This appeal coming on for hearing, 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

18.04.2013 passed in MVC No.1/2012 by the Motor

Accident Claims Tribunal.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is petitioner and respondents are

respondents before the Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 06.09.2011 at about 6.00

p.m., the petitioner and others were returning from

Osmanabad towards their native place Tale-Hipparaga

on motor cycle bearing registration No.MH-09/M-

4677, Bandenawaz was the rider and petitioner and

one Hussain were pillion riders, while they were

proceeding on Solapur to Tulajapur road, at that time

one Indica Car bearing registration No.MH-12/AF-3088

came from opposite direction from Solapur side in

high speed rash and negligent manner being driven by

its driver and dashed to the said motorcycle. As a

result of the aforesaid accident, the petitioner

sustained bodily injuries. The Petitioner has spent

huge amount towards the medical treatment.

3.1. The petitioner filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

3.2. The respondent No.1 filed written

statement denying the averments made in the petition

and also denied the manner of accident. It is

contended that the rider of the motorcycle is

responsible for the alleged accident. Hence, prayed to

dismiss the claim petition against respondent No.1.

3.3. Respondent No.2 filed written statement in

which the averments made in the petition were denied

and contended that rider of the motorcycle as well as

driver of the car were not holding valid and effective

driving license as on the date of the accident and

there is violation of terms of policy. Therefore,

respondent No2 is not liable to pay compensation.

Hence, sought for dismissal of the petition.

3.4. There are totally three petitions filed. The

tribunal clubbed all the three petitions and common

evidence was recorded. On the basis of the pleadings

of the parties, the Claims Tribunal framed the issues

and thereafter recorded the evidence. The petitioner

in the present case is examined herself as PW-1 and

got exhibited documents namely Ex.P1 to Ex.P24. On

behalf of the respondents, on oral evidence is adduced

only got exhibited document namely Ex.R1. The

Tribunal, after recording the evidence and considering

the material on record, allowed the petition in part

and awarded compensation of Rs.8,34,000/- along

with interest at the rate of 6% p.a. from the date of

petition till realization 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.

4. Heard the learned counsel for petitioner

and learned counsel for respondent No.2-Insurance

Company.

5. Learned counsel for the petitioner submits

that the tribunal was not justified in assessing the

income of the petitioner as Rs.3,000/- per month. He

further submits that the compensation awarded by the

Tribunal is on the lower side and that the Tribunal has

not awarded any amount under the head loss of laid

up period during treatment. On these grounds, he

prays to allow the appeal.

6. Per contra, the learned counsel for the

respondent No.2/Insurance Company supports the

impugned judgment and award passed by the Tribunal

and prays to dismiss the appeal.

7. Heard the learned counsel for the parties

and perused the records.

8. The point that arise for consideration is

with regard to quantum of compensation.

9. It is not in dispute that the accident has

occurred due to rash and negligent driving of the

offending vehicle by its driver. In order to prove the

negligence on the part of the driver of the offending

vehicle, the petitioner has produced copy of FIR which

is marked as Ex.P1 and final report as per Ex.P5.

Ex.P5, discloses that the accident was occurred due to

rash and negligent driving of the driver of the

offending vehicle.

10. Insofar as quantum of compensation is

concerned, the petitioner examined herself as PW.1

and stated that prior to the accident she was hale and

healthy and she was aged about 20 years and she was

doing agriculture coolie and earning Rs.7,500/- per

month. In order to substantiate the same, the

petitioner has not tendered any evidence with regard

to her income. In the absence of income proof the

tribunal has taken the income of the deceased @

Rs.3,000/- per month.

11. In the absence of any evidence or proof of

income, the notional income has to be assessed as per

the guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2011, the notional income has to be taken

at Rs.6,000/- p.m.

12. In order to prove the disability, the

petitioner examined the doctor as PW.3, wherein he

has stated that he has examined the petitioner on

06.09.2011 for the purpose of treatment and there is

disability. Further he has deposed that the petitioner

was admitted in his hospital for treatment from

06.09.2011 to 12.11.2011, undergone surgeries.

Again she was admitted on 26.12.2011, she was

operated on 27.12.2011, 02.01.2012, 10.01.2012 and

for further treatment till 11.07.2012. He has opined

that the petitioner has suffered disability at 80% to

the whole body. Nothing has been elicited from the

mouth of his evidence. Considering the evidence of

PW.2 the tribunal has assessed the disability at 50%,

which is just and proper and does not call for any

interference.

13. As the accident is of the year 2011, this

Court has assessed notional income of the petitioner

at Rs.6,000/- per month. The petitioner is aged about

20 years as on the date of the accident, as per the

decision of Hon'ble Apex Court in the case of SARLA

VERMA (SMT) & OTHERS VS. DELHI TRANSPORT

CORPORATION & ANOTHER, reported in (2009)

6 SCC 121, the multiplier applicable to the age group

of the petitioner is 18. Therefore, the petitioner is

entitled to a sum of Rs.6,48,000/-(6,000/- x 12 x 18

x5/100) on account of loss of future income.

14. Though the petitioner has produced

medical records and spent more than Rs.4,50,000/-,

the tribunal has awarded Rs.3,00,000/- which is on

the lower side. Hence, this Court award the

compensation of Rs.4,50,000/- towards medical

expenses.

15. Considering the evidence of PW.2 and

medical records produced by the petitioner, this Court

re-assesses the compensation on the following heads;

Sl.No. Heads By Tribunal By this Court

1. Injury, pain & Rs.50,000/- Rs.1,00,000/-

sufferings

2. Medical expenses Rs.3,00,000/- Rs.4,50,000/-

3. Loss of future earning Rs.3,24,000/- Rs.6,48,000/-

4. Attendant charges, Rs.30,000/- Rs.50,000/-

conveyance charges, food & nourishment,

5. Loss of amenities of Rs.80,000/- Rs.1,00,000/-

life, happiness, frustration and expectation of life

6. Towards artificial leg Rs.50,000/- Rs.1,00,000/-

7.        Laid up period                  ---            Rs.36,000/-
                 Total              Rs.8,34,000/-        Rs.14,84,000/-

16. The petitioner is entitled for the total

compensation of Rs.14,84,000/- as against

Rs.8,34,000/- awarded by the tribunal.

17. In view of the above discussion, I proceed

to pass the following:

ORDER

(a) The appeal is allowed in part.

(b) The impugned judgment and award passed by the Tribunal is modified. The petitioner is entitled to an enhanced compensation of Rs.6,50,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

(c) The respondent-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.

(d) The tribunal is directed to release the enhanced compensation amount in favour of the petitioner.

Sd/-

JUDGE

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