Sideshwar S/O Tatya Pisal vs The Division Controller
2022 Latest Caselaw 5528 Kant

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        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.200640/2014 (MV)

BETWEEN:

SIDESHWAR
S/O TATYA PISAL
AGE: 36 YEARS
OCC: COOLIE
R/O: JAL NAGAR,
BIJAPUR.
                                      ... APPELLANT

(BY SRI SANGANAGOWDA V BIRADAR, ADVOCATE)

AND:

THE DIVISION CONTROLLER
M.S.R.T.C., SHOLAPUR DIVISION
SHOLAPUR-416416.
                                     ... RESPONDENT

(BY SRI RAHUL R ASTURE, ADVOCATE)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.12.2013 PASSED IN
MVC.NO.1714/2012 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.V AT BIJAPUR, PARTLY
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ALLOWING THE PETITION AND SEEKING ENHANCEMENT
FOR 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 31.12.2013

passed by the Motor Accident Claims Tribunal No.V,

Bijapur, (for short hereinafter referred to as 'the

Tribunal') in MVC No.1714/2012.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is the petitioner and respondent is

the respondent before the Tribunal.

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

under:

On 18.05.2010 the petitioner was travelling in Tum

Tum bearing Reg.No.MH-13-AD-0078. The said vehicle

met with an accident with the bus bearing Reg.No.MH-

12-AQ-8975 driven by its driver in a rash and negligent

manner and dashed to the Tum-Tum, thereby caused

accident due to which the petitioner has sustained

grievous injuries and spent huge amount. 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. The respondent appeared and filed the

written statement denying the averments made in the

claim petition with regard to age, occupation, earning,

injuries and medical treatment and rash and negligent

driving of the driver of the offending vehicle. It is

contended that the accident occurred due to negligent

act of the driver of the Tum-Tum and the petitioner was

travelling as a gratuitous passenger. Hence, the claim

petition filed by the petitioner is not maintainable for

non-joinder of necessary party. Hence, on these

grounds, he 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, he has sustained bodily injuries in the motor vehicle accident that occurred on 18.05.2010 at about 9.00 a.m., on Nandurg-Donaj road within the limits of Mangalweda Police Station, on account of rash and negligent driving of Bus bearing Reg.No.MH-12/AQ-8975 by its driver, as alleged?

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

iii. What order or award?

6. The 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.

The respondent had not adduced either oral or

documentary evidence.

7. The Tribunal, after recording the evidence

and considering the material on record, allowed the

claim petition in part and awarded compensation of

Rs.2,42,600/- along with interest at the rate of 6% per

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

Further directed the respondent to deposit the

compensation amount.

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 appellant

and the learned counsel for the respondent.

10. The learned counsel for the petitioner

submits that the petitioner met with an accident and

suffered a permanent disability. He further submits that

the Tribunal has awarded lesser compensation under all

the heads. Hence, he submits that the appeal may be

allowed and the compensation may be enhanced.

11. Per contra, the learned counsel for the

respondent submits that the compensation awarded by

the Tribunal is just and reasonable and does not call for

any interference.

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. It is not in dispute that the petitioner met

with an accident and sustained grievous injuries in the

road traffic accident. In order to prove the accident, the

petitioner has filed copy of FIR and final report Exs.P1

and P3. Ex.P3 discloses that the accident was occurred

due to rash and negligent driving of the driver of the

offending vehicle.

14. Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner was doing a coolie work and earning

Rs.7,500/- per month. Due to the injuries sustained in

the road traffic accident, he is unable to work and

became permanently disabled. In order to establish that

the petitioner was earning Rs.7,500/- per month. The

petitioner has not tendered any evidence in regard to

income proof. 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 2010, the income of the

petitioner will have to be taken at Rs.5,500/- as against

Rs.4,500/- per month taken by the Tribunal. In order to

establish that the petitioner has suffered permanent

disability, examined the Doctor as P.W.2 On examination

of the petitioner he has issued a disability certificate as

per Ex.P10. Further he has stated that the petitioner has

suffered a disability about 30% to 35% relating to right

lower limb and 20% to 25% relating to spine due to

united fracture of right femur condyl, compression of L-3

vertebra, issuance of disability certificate as per Ex.P10.

He has admitted that he has not disclose the percentage

of disability to the whole body. However in the disability

certificate, the Tribunal has taken the disability at 15%

to the whole body, it is on the lower side . This Court

considering the evidence of P.W.2 and medical records

produced, this Court enhanced disability of 20% to the

whole body. Taking into account the age of the

petitioner which was 33 years at the time of accident,

multiplier of '16' 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.2,11,200/- (Rs.5,500/- X 12 X 16 X 20/100).

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               40,000/-    50,000/-
Loss of amenities of life,
happiness,       frustration        30,000/-        40,000/-
etc.,
Loss of expectation of life         30,000/-           -
Loss     of   conveyance,
attendant charges, food             10,000/-        20,000/-
and nourishment etc.,
Loss of income during laid
                                     -              22,000/-
up period
Medical expenses                   3,000/-           3,000/-
Loss of future income             1,29,600/-      2,11,200/-
Total                            2,42,600/-       3,46,200/
Enhanced by this Court                           1,03,600/-

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.1,03,600/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

iii. The respondent is directed to deposit the 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 amount in favour of the petitioner.

Sd/-

JUDGE ssb