Chand Pasha vs Pruthviraj And Anr
2022 Latest Caselaw 5626 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.201679/2021 (MV)
Between:

Chand Pasha S/o Hussain Sab,
Age: 27 years, Occ: Driver (Now Nil)
R/o Near Siddalingeshwara Math Road,
Chamnur, Kadboor,
Tq: Chittapur, Dist: Kalaburagi.
                                                ... Appellant
(By Sri. Sanjeev Patil, Advocate for
Sri.Veeranagouda Malipatil, Advocate)

And:

1.     Pruthviraj S/o Nagappa,
       Age: 47 years, Occ: Owner of Eicher
       Bearing No. KA-05/Ad-4389,
       R/o Ward No.3, Ambedkar Nagar,
       Malur, Tq: Malur,
       Dist: Kolar-563 130.
2.     The Manager / Legal officer,
       Shriram General Insurance Co. Ltd.,
       No.3/5, 3rd Floor, S.V.Arachade,
       Bilekahall Main Road,
       Bannerughatta Road,
       Bangalore-76.
                                             ... Respondents
(Notice to R1 is dispensed with;
 By Sri. Subhash Mallapur, Advocate for R2)
                              2




      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to allow the appeal, the
judgment and award dated 01.04.2021 in MVC
No.176/2019 on the file of Senior Civil Judge & MACT-II, at
Yadgir, may kindly be modified by enhancing the
compensation as claimed in the claim petition.

      This appeal coming on for admission, 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 petitioners being

aggrieved by the judgment and award dated

01.04.2021 passed in MVC No.176/2019 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 21.04.2019 at about 4.30

a.m., the petitioner was proceeding in an Auto

rickshaw bearing registration No.KA-33/5045 from

Wadi to Yadgir, when he written statement near the

AryaBhata School on Chittapur-Yadgir Main road, at

that time the driver of Eicher vehicle bearing

registration No.KA-05/AD-4389 drove his vehicle in

high speed rash and negligent manner being driven by

its driver and dashed to the said Auto rickshaw. As a

result of the aforesaid accident, the petitioner

sustained grievous injuries and he has spent huge

amount towards the medical treatment. Therefore, 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 for the grievous

injuries sustained in the accident, he is unable to sit,

squat, walk properly and he is unable to do driving

work as before and he became permanent disabled. It

was further pleaded that the accident occurred purely

on account of the rash and negligent driving of the

offending vehicle by its driver.

3.1. The respondent Nos.1 and 2 filed written

statement. Respondent No.1 contended that the

accident was occurred due to rash and negligent

driving of the driver of Auto rickshaw. It is contended

that the accident was not occurred due to rash and

negligent driving of the driver of Eicher vehicle

bearing registration No.KA-05/AD-4389. It is

contended that driver of Eicher vehicle bearing

registration No.KA-05/AD-4389 was holding valid and

effective driving licence as on the date of the accident.

It is further contended that the vehicle was insured

respondent No.2 and the policy is in force. Therefore,

respondent No.1 is not liable to pay compensation.

Hence, sought for dismissal of the petition.

3.2. Respondent No.2 has categorically denied

the age, occupation and income of the injure

petitioner and prayed to dismiss the petition.

3.3. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The petitioner is examined

herself as PW-1 and examined the doctor as PW.2 and

got exhibited documents namely Ex.P1 to Ex.P11.

The respondents have not adduced any oral or

documentary evidence. The Tribunal, after recording

the evidence and considering the material on record,

allowed the petition in part and awarded

compensation of Rs.6,31,000/- 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 though the petitioner has contended that he was

doing driving work and earning Rs.20,000/- per

month, the tribunal was not justified in assessing the

income of the petitioner as Rs.9,000/- per month. He

further submits that the compensation awarded on the

other heads is on the lower side and prays to enhance

the compensation. On these grounds, he prays to

allow the appeal.

6. Per contra, the learned counsel for the

respondent No.2/Insurance Company submits that

after considering the material on record, the tribunal

was justified in awarding the compensation and the

compensation awarded by the tribunal is just and

proper. Hence, 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 with regard to manner

of accident and nature of injuries sustained by the

petitioner. In order to prove that the accident was

occurred due to rash and negligent driving of the

driver of the offending vehicle, the petitioner has

produced copy of charge sheet which is marked as

Ex.P3. Ex.P3, 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, it is the case of petitioner that due to

accident, he has suffered grievous injuries and due to

which, he has suffered permanent disability. In order

to substantiate the same, he has examined the doctor

as PW.2, who has deposed that he has examined the

petitioner and on examination, he has issued disability

certificate and formed an opinion that the petitioner

has suffered permanent disability of 33% to the lower

limb. The tribunal has taken the disability to an extent

of 12% to the whole body for the purpose of

determining compensation. The disability assessed

by the Tribunal is just and proper. It is the case of

the petitioner that he was working as driver and

earning Rs.20,000/- per month. In order to

substantiate the same, the petitioner has not

produced any proof of income. 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 2019, the notional income of the

petitioner will have to be taken at Rs.13,250/- as

against Rs.9,000/- per month taken by the Tribunal.

Taking into account the age of the petitioner who was

25 years at the time of accident, multiplier of "18" has

to be adopted. Therefore, the petitioner would be

entitled to compensation towards loss of future

income at Rs.3,43,440/- (Rs.13,250/- X 12 X 18 X

12/100).

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

records and nature of 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
Loss of future income on         2,33,280/-   3,43,440/-
account of permanent
disability
Medical bills and hospital          2,98,312/-    2,98,312/-
expenses bills
Pain and sufferings and              30,000/-      50,000/-
mental agony
Loss of amenities                    20,000/-      30,000/-
Food and nourishment                 10,000/-      15,000/-
Conveyance charges                   10,000/-      15,000/-
Loss of income during the
laid-up period (13,250 x               4,500/-     39,750/-
3)
Attendant charges                      4,500/-       -
Towards      removal    of
                                     20,000/-      20,000/-
implants
Total                           6,30,592/-

Rounded off to                  6,31,000/-        8,11,502/
Enhanced by this Court                           1,80,502/-

12. 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.1,80,502/- 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 msr/NB*