Raghavendra S/O Heeralal Jadahv vs Laxmikanth S/O Dattappa And Anr
2022 Latest Caselaw 5418 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA No.200338/2021 (MV)

Between:

Raghavendra S/o Heeralal Jadhav,
Age: 30 years, Occ: Staff Nurse,
H.No.11/1513, Bhagatsingh Chowk,
Vaddar Galli, Brahampur, Kalaburagi.
                                               ... Appellant

(By Sri Harshavardhan R. Malipatil, Advocate)

And:

1.     Laxmikanth S/o Dattappa,
       Age: 31 years, Occ: Driver Cum Owner,
       R/o Kirasavalagi, Tq. Aland,
       Dist. Kalaburagi-585 102.

2.     The United India Insurance Co., Ltd.,
       Through its Divisional Manager,
       PH No.47, Jawali Complex, Super Market,
       Kalaburagi-585 101.

                                         ... Respondents

(By Sri Sudarshan M., Advocate for R2;
 V/o dated.25.03.2021 notice to
 R1 is dispensed with)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to allow this appeal and
enhance the compensation to Rs.11,74,500/- (excluding
the amount awarded by the tribunal) along with interest by
modifying the judgment and award of I-Addl. Senior Civil
Judge and MACT Kalaburagi, dated 04.11.2019 in MVC
No.169 of 2017.


      This appeal coming on for Admission, 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 04.11.2019

passed by I-Additional Senior Civil Judge and Motor

Accident Claims Tribunal, Kalaburagi, (for short

hereinafter referred to as 'the Tribunal') in MVC

No.169/2017.

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 14.11.2016 at about 7.30 p.m., when the

petitioner was returning to his house after completion of

his work through Jagath to Goa Hotel road on his

motorcycle bearing No.KA.32/X.8550 slowly and

cautiously on the proper side of road, respondent

No.1/driver-cum owner of Trax bearing registration

No.KA.35/M.7295 came from opposite direction with

high speed and in rash and negligent manner and

dashed to the petitioner. Due to which, the petitioner

sustained grievous injuries and immediately after the

accident, he was admitted to the hospital and spent

huge amount for medical treatment. Petitioner filed

claim petition under Section 166 of the Act seeking

compensation for the injuries sustained in the road

traffic accident.

4. Respondent No.1 did not appear before the

Tribunal and he was placed exparte. Respondent No.2

filed written statement denying the averments made in

the claim petition and denied the age and income of the

petitioner and also denied nature of the injuries

sustained by the petitioner in the accident. 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 and prayed to dismiss the claim

petition.

5. The Tribunal on the basis of the pleadings of

the parties framed the issues and recorded evidence. In

order to prove the case, petitioner examined himself 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 P12. Respondent No.2 did not adduce any

evidence either oral or documentary.

6. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.3,25,500/- with interest at 6% per annum from the

date of petition till the date of realization and held that

the respondents are jointly and severally liable to pay

compensation and directed respondent No2 deposit the

compensation.

7. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioner/appellant has

filed this appeal seeking enhancement of compensation.

8. Heard the learned counsel for the petitioner

and the learned counsel for respondent No.2/Insurance

company.

9. The learned counsel for the petitioner

submits that the petitioner was working as Nurse in

Sathya Hospital, Kalaburagi and was earning more than

Rs.15,000/- per month and the said aspect has not been

disputed by respondent No.2, but the Tribunal without

considering the said aspect has taken notional income at

Rs.7,500/- per month. He further submits that in the

absence of proof of income, the Tribunal ought to have

taken notional income as per the chart issued by the

Karnataka Legal Services Authority. The Tribunal has

committed an error in taking the monthly income at

Rs.7,500/-. He further submits that in order to prove

disability the petitioner examined the doctor as P.W.2.

On examination of P.W.1, P.W.2 has opined that the

petitioner has suffered permanent disability to an extent

of 34%, but the Tribunal has taken the disability at 10%

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

compensation awarded by the Tribunal on the other

heads is also on the lower side and prays to allow the

appeal.

10. Per contra, the learned counsel for

respondent No.2 supports the impugned judgment and

award passed by the Tribunal and submits that the

compensation awarded by the Tribunal is just and

proper and does not call for interference and prays to

dismiss the appeal.

11. 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.

12. 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 FIR and charge sheet which are marked as

Exs.P1 and P3. The Tribunal relying on Exs.P1 and P3

recorded finding that the accident occurred due to rash

and negligent driving of the driver of the offending

vehicle.

13. Perusal of the impugned judgment would

indicate that the petitioner/appellant has contended that

he was working as Nurse and earning Rs.15,000/- per

month. However, in order to substantiate the same, the

petitioner did not produce any evidence 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 2016, the

notional income of the petitioner will have to be taken at

Rs.8,750/- as against Rs.7,500/- per month taken by

the Tribunal. In order to prove the disability, the

petitioner examined the doctor as P.W.2. PW.2-Doctor

has deposed that he has examined the petitioner and he

has issued the disability certificate as per Ex.P9

assessing the permanent disability to an extent of 34%

to the whole body. But the Tribunal has considered the

disability at 10% which is on the lower side.

Considering the evidence of PW.2 and medical records

produced by the petitioner, this Court is of the opinion

that the petitioner has suffered disability to an extent of

20%. Taking into account the age of the petitioner who

was 30 years at the time of accident, multiplier of "17"

has to be adopted. Therefore, the petitioner would be

entitled to compensation towards loss of future income

at Rs.3,57,000/- (Rs.8,750/- X 12 X 17 X 20/100).

14. Considering the evidence of P.W.2, medical

records produced by the petitioner and 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                40,000/-    60,000/-
Medical expenses                   86,500/-    86,500/-





Food       and       extra
nourishment and medical                       3,500/-         10,000/-
atttendant
Conveyance                                   10,000/-         15,000/-
Loss of income during
treatment period (8,750 x                    22,500/-         35,000/-
4)
Loss of future income due
                                        1,53,000/-        3,57,000/-
to permanent disability
Deprivation    of   future
                                             10,000/-         25,000/-
amenities
Total                               3,25,500/-            5,88,500/
Enhanced by this Court                                   2,63,000/-

15. 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.2,63,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

iii. Respondent No.2 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.

iv. The Tribunal is directed to release the enhanced compensation with interest in favour of the petitioner.

Sd/-

JUDGE NB*