Suresh S/O Noorundapa Gudda vs Gnyanreddy S/O Govind Reddy And ...
2022 Latest Caselaw 5524 Kant

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA No.200139/2014 (MV)

BETWEEN:

SURESH
S/O NOORUNDAPPA GUDDA,
AGED ABOUT 31 YEARS,
OCC: ELECTRICAL BUSINESS,
R/O SHAPUR LOCALITY,
BASAVAKALYAN,
DIST. BIDAR.
                                     ... APPELLANT

(BY SRI. SANJEEV KUMAR C.PATIL, ADVOCATE)
AND:
1.     GNYANREDDY
       S/O GOVIND REDDY,
       AGE: MAJOR, OCC: BUSINESS,
       R/O VILLAGE BANNALLI,
       TQ. HUMNABAD, DIST. BIDAR.
2.     THE DIVISIONAL MANAGER,
       UNITED INDIA INSURANCE COMPANY LIMITED,
       DR.JAWALI COMPLEX, SUPER MARKET,
       GULBARGA.
                                   ... RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
    NOTICE TO R1 SERVED)
                              2




    THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V. ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.10.2012 PASSED IN
MVC NO.358/2011 ON THE FILE OF THE FAST TRACK
COURT   BASAVAKALAYAN,    DIST.   BIDAR,  PARTLY
ALLOWING   THE  CLAIM   PETITION   AND   SEEKING
ENHANCEMENT OF COMPENSATION.

     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')

aggrieved by the judgment and award dated 30.09.2012

passed by the Fast Track Court Basavakalyan District,

Bidar (for short hereinafter referred to as 'the Tribunal')

in MVC No.358/2011.

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 filing of this appeal are as

under:

On 03.01.2011, the petitioner was proceeding

towards Rajeshwar from his village on his Hero Honda

bike bearing No.KA-39-J-3681. When he came near

Sastapur Bungalow, the lorry bearing No.KA-39-6595

was parked on the road side by its driver without any

signal or indicator. The petitioner dashed to the said

lorry and sustained injuries and he spent huge amount

for medical expenses. Hence, the petitioner filed claim

petition under Section 166 of the Act seeking

compensation due to the injuries sustained in the road

traffic accident.

4. Respondent No.1 filed the statement of

objections denying the averments made in the claim

petition with regard to age, occupation, income,

avocation, expenditure towards the treatment. It is

contended that the driver of the vehicle was having the

valid and effective driving license as on the date of

accident. The insurance was in force as on the date of

accident. Respondent No.2 is liable to indemnify

respondent No.1. Hence, on these grounds, he prayed to

dismiss the claim petition.

5. Respondent No.2 filed the written statement

contending that the claim petition filed by the petitioner

is not maintainable and further denied the contents of

the claim petition and reiterated the statement of

objections filed by respondent No.1. Further, it is

contended that the driver of the offending vehicle was

not having the valid and effective driving license as on

the date of accident. It is further contended that there is

a violation of terms and conditions of the policy and

hence, respondent No.2 is not liable to pay the

compensation as claimed by the petitioner. Hence, on

these grounds, he prayed to dismiss the claim petition.

6. The Tribunal on the basis of the pleadings of

the parties framed the following issues:

i. Whether the petitioner have prove that, he had sustained injuries in the alleged R.T.A. due collusion of both vehicles i.e., lorry bearing No.KA-39/6595 and bike bearing No.KA-39/J-3681 on 03.01.2011 at about 11.30 p.m. near Auto nagar Sustapur Bungalow?

ii. Whether the petitioner is entitled for compensation? If so, what amount and from whom?

iii. What order or award?

7. The petitioner in support of his claim petition

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.P-1 to P-91. The respondents not

adduced either oral or documentary evidence.

8. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.3,37,800/- along with interest at the rate of 6% per

annum from the date of petition till the date of deposit.

Further held that respondent Nos.1 and 2 are jointly and

severally liable to pay the compensation to an extent of

50% to the petitioner and 50% liability is fixed on the

petitioner. The petitioner aggrieved by the judgment and

award passed by the Tribunal fastening the liability on

the petitioner and also on the ground of enhancement of

the amount, has filed this appeal.

9. Heard the learned counsel for the appellant

and also the learned counsel for respondent No.2.

10. The learned counsel for the appellant

submits that the Tribunal has committed an error in

fastening 50% of the liability on the petitioner. He

further submits that the compensation awarded by the

Tribunal and the disability assessed by the Trial Court is

on the lower side. Hence, on these grounds, he prayed

to allow the appeal.

11. Per contra, the learned counsel for

respondent No.2 submits that the petitioner has

contributed to the cause of accident and there is a

contributory negligence on the part of the petitioner and

further, a charge sheet was filed against the petitioner.

She further submits that the Tribunal was justified in

recording the finding that there was a contributory

negligence on the part of the petitioner and rightly

fastened the liability on the petitioner. She further

submits that the compensation awarded by the Tribunal

is just and proper and does not call for any interference.

Hence, on these grounds, he prayed to dismiss the

appeal.

12. Heard and 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 and liability of compensation.

13. It is not in dispute that the petitioner met

with an accident and sustained injuries in the road traffic

accident. In order to prove the negligence on the part of

the driver of the offending vehicle, the petitioner has

produced the copy of FIR with complaint marked as

Ex.P-1. Ex.P-1 discloses that the petitioner has

contributed for the cause of accident. The learned

counsel for the petitioner fairly concede that the charge

sheet is also filed against the petitioner. The Tribunal

Court was justified in recording the finding that the

petitioner has contributed for the cause of accident and

the Tribunal was justified in fastening 50% liability on

the petitioner and 50% liability is fixed on respondent

Nos.1 and 2. Hence, the finding recorded by the Tribunal

is just and proper on the point of liability.

14. Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner is doing Electrical business and earning

Rs.10,000/- per month. In order to substantiate the

claim of the petitioner, the petitioner has not tender any

evidence in regard to proof of his income. In the

absence of income, the income is taken 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 2011, the income taken by the Tribunal at

Rs.6,000/- per month is just and proper. In order to

prove the disability, the petitioner examined the Doctor

as P.W.2, who has issued disability certificate as per

Ex.P24, wherein Ex.P24 discloses that the petitioner has

suffered disability to an extent of 51%. Based on

examination of P.W.1, the Doctor has opined that the

petitioner had suffered 32% to 40% disability to the

whole body. Considering the evidence of P.W.2 and the

medical records produced by the petitioner, this Court

enhanced disability 25% to the whole body. Taking into

account the age of the deceased, which was 28 years at

the time of accident, multiplier of '17' has to be adopted

as per the judgment of the Hon'ble Supreme Court in

the case of Sarla Verma vs. Delhi Transport

Corporation reported in (2009) 6 SCC 121.

Therefore, the petitioner would be entitled to

compensation towards loss of future income at

Rs.3,06,000/-/- (Rs.6,000/- X 12 X 17 X 25/100).

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 and sufferings                  25,000/-    40,000/-
Medical expenses                     50,000/-    50,000/-
Loss of income during
                                     12,000/-          18,000/-
treatment period





Special diet, nourishment
                                          6,000/-          10,000/-
and attendance charge
Loss of income due to
                                 2,44,800/-           3,06,000/-
disability
Loss of amenities                    -                  25,000/-
Total                            3,37,800/-          4,49,000/-
Enhanced by this Court                               1,11,200/-

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.1,11,200/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

iii) Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the extent of 50% to the petitioner and 50% liability is fixed on the petitioner. However, respondent No.2 is directed to deposit 50% of 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 entire enhanced compensation amount in favour of the petitioner.

Sd/-

JUDGE ssb