Shivakumar S/O Shivasharanappa ... vs Nagaraj And Anr
2022 Latest Caselaw 5619 Kant

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 29TH DAY OF MARCH, 2022
                       BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.201265/2021 (MV)
BETWEEN:

SHIVAKUMAR
S/O SHIVASHARANAPPA WADED,
AGED: 40 YEARS,
OCC: HOTEL BUSINESS NOW NIL,
R/O NEAR GOVERNMENT SCHOOL,
PRASHANTNAGAR (A), AJAPUR ROAD,
KALABURAGI.
                                       ... APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1.     NAGARAJ
       S/O SURANATH SHIVADE,
       AGED: MAJOR, OCC: NOT KNOWN,
       R/O 9-587/68/105, ALAND ROAD,
       NEAR QADRI CHOWK, J.R.NAGAR,
       KALABURAGI-585101.

2.   THE LEGAL MANAGER,
     RELIANCE GENERAL INSURANCE CO. LTD.,
     DIVISIONAL IFFICE, 3RD FLOOR,
     ASIAN PLAZA, TIMMAPURI CIRCLE,
     MAIN ROAD, KALABURAGI-585 101.
                                   ... RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADV. FOR R2;
    V/O DTD. 27.01.2022 NOTICE TO R1 IS D/W)
                            2




     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT PRAYING TO
EXERCISE ITS APPELLATE JURISDICTION, CALL FOR
RECORDS AND MODIFY THE JUDGMENT AND AWARD
DATED 02.01.2020 PASSED BY THE LEARNED PRL.
SENIOR CIVIL JUDGE AND MACT AT KALABURAGI IN MVC
NO.629/2018    BY  ENHANCING    THE   RESTRICTED
COMPENSATION AMOUNT OF RS. 15,00,000/- AND ALSO
ENHANCE THE INTEREST PAYABLE BY THE RESPONDENTS
ON THE COMPENSATION AMOUNT, AND FURTHER BE
PLEASED TO ALLOW THIS APPEAL FILED BY THE
APPELLANT HEREIN.

     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')

aggrieved by the judgment and award dated 02.01.2020

passed by the Prl. Senior Civil Judge and Motor Accident

Claims Tribunal at kalaburgari (for short hereinafter

referred to as 'the Tribunal') in MVC No.629/2018.

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 18.02.2018 the petitioner was proceeding on

motor cycle bearing Reg.No.KA-32/ER-1648 from

Rajapur to RTO Cross. When he reached in front of

Dr.Babasaheb Ambedkar Hostel, at that time the rider of

the bike bearing Reg.No.KA-32/EN-4351 driven the

same in a high speed, rash and negligent manner, came

from opposite direction and dashed against the motor

cycle of the petitioner. Due to the impact, the petitioner

has sustained grievous injuries and spent huge amount

for medical treatment. 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 has filed the written

statement denying the averments made in the claim

petition with regard to age, occupation, income and

injuries sustained by the petitioner. It is contended that

the rider of the offending vehicle was possessing the

valid and effective driving license as on the date of the

accident. The vehicle was insured with respondent No.2.

Respondent No.1 is not liable to pay the compensation.

Accordingly, he prayed to dismiss the appeal as against

respondent No.1.

5. Respondent No.2 has reiterated the

averments made in the written statement filed by

respondent No.1 and prayed to dismiss the claim

petition.

6. The Tribunal on the basis of the pleadings of

the parties framed the issues:

7. 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 P17.

The respondents have 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.4,81,000/- along with interest at the rate of 6% per

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

9. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioner/appellant has

filed this appeal seeking enhancement of compensation.

10. Heard the learned counsel for the appellant

and also the learned counsel for the respondents.

11. The learned counsel for the petitioner

submits that the petitioner was running a hotel business

and earning Rs.20,000/- per month, wherein the

Tribunal has taken the income of the petitioner at

Rs.9,000/- per month. 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.

Per contra, the learned counsel for

respondent No.2 supports the impugned judgment and

award passed by the Tribunal. He further submits that

the compensation awarded by the Tribunal is just and

reasonable and does not call for any interference.

Hence, he prayed to dismiss the appeal.

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 that the accident

was occurred due to rash and negligent riding by the

rider of the motor cycle. The petitioner has produced the

copy of the charge sheet marked as Ex.P3. Ex.P3

discloses that the accident was occurred due to rash and

negligent riding by the rider of the offending vehicle.

14. Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner was running a hotel business and earning

Rs.20,000/- per month. In order to prove the disability,

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

examination of P.W.1, he has issued the disability

certificate and marked as Ex.P14. He further opined that

the petitioner has suffered permanent disability of

43.33% to the whole body, wherein the Tribunal has

taken the disability at 15%. The disability assessed by

the Tribunal is just and proper and does not call for any

interference insofar the disability assessed by the

Tribunal.

Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner is running a hotel and earning Rs.20,000/- per

month. In order to establish that the petitioner was

earning Rs.20,000/- per month. The petitioner has not

tendered 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 2018, the income of the petitioner will have to

be taken at Rs.11,750/- as against Rs.9,000/- per

month taken by the Tribunal. Taking into account the

age of the petitioner which was 38 years at the time of

accident, multiplier of '15' 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.3,17,250/- (Rs.11,750/- X

12 X 15 X 15/100).

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             45,000/-     60,000/-
Medical expenses              1,49,823/-   1,49,823/-
Diet     and     attendant
                                   15,000/-          20,000/-
charges
Loss of income during laid
                                   18,000/-            35,250/-
up period
Loss of feature earning
                                 2,43,000/-          3,17,250/-
capacity
Loss of amenities               10,000/-               25,000/-
Total                          4,81,000/-           6,07,323/-
Enhanced by this Court                              1,26,323/-

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 1,26,323/- 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 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 with interest in favour of the petitioner.

Sd/-

JUDGE ssb