Riyaz S/O Hussain Sab vs Sharanabasawa S/O Eashwargouda
2022 Latest Caselaw 5800 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 31ST DAY OF MARCH, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.201758/2014 (MV)

Between:

Riyaz S/o Hussain Sab,
Age: 21 years, Caste: Katagaru,
Occ: Sheep Business,
R/o Basapur Village, Tq. Manvi,
Now residing at Kulsumbi Colony,
Raichur-584 101.
                                                ... Appellant
(By Sri Basavaraj R. Math, Advocate)

And:

1.     Sharanabasawa W/o Eashwargouda,
       Age: 31 years, Occ: Tractor driver,
       R/o Channahalli, Post: Channahalli,
       Tq. Sindhanoor, Dist. Raichur-584 128.

2.     Basawaraj S/o Eashappa,
       Age: 31 years, Lingayat,
       Occ: Agriculture & Owner of Tractor
       Bearing Regn. No.KA-39/TA-4993,
       R/o Basapur, Tq. Manvi,
       Dist. Raichur-584 123.

3.     The Branch Manager,
       Reliance General Insurance
                               2




      Company Ltd.,
      Asian Plaza, Near Timmapur Circle,
      Court Road, Gulbarga-585 102.
                                       ... Respondents

(By Sri C.S.Kalburgi, Advocate for R3;
 V/o dated 21.01.2015 notice to R1 & R2 are
 dispensed with)


      This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for records and
modify   the   impugned    judgment      and     award      dated
12.09.2014 passed by II-Additional District and Sessions
Judge, at Raichur in MVC No.557/2013.


      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') challenging the judgment and award dated

12.09.2014 passed by II-Additional District and

Sessions Judge, Raichur, (for short hereinafter

referred to as 'the Tribunal') in MVC No.557/2013.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is the petitioner and

the respondents are the respondents before the

Tribunal.

3. Facts giving rise to filing of this appeal are

as under:

On 19.06.2013 at about 10.00 p.m., the

petitioner-Riyaz was proceeding on motorcycle

bearing No.KA-36/K-9490 as pillion order on Maski-

Kowtal road, near Basapur and one Syed was riding

the motorcycle. At that time, respondent No.1 by

driving LNT Tractor No.KA-36/TA-4993 came in high

speed and in a rash and negligent manner by putting

one side head light from Kowtal side and dashed to

the said motorcycle. As a result, the petitioner and

rider Syed fell down and sustained injuries.

Immediately after the accident, petitioner was shifted

to RIMS Hospital, Raichur and took treatment as

inpatient for about two and half months 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. Inspite of service of notice, respondent

No.1 did not appear before the Tribunal and he was

placed exparte. Respondent Nos.2 and 3 appeared

through counsel and filed separate written statement.

5. Respondent No.2/owner filed written

statement denying the averments made in the claim

petition. It is contended that the claim petition of the

petitioner suffer from non-joinder of necessary and

proper party. It is further contended that respondent

No.1/driver drove the tractor in a very slow manner,

but the petitioner himself came in rash and negligent

manner and dashed to the respondent No.2's tractor

and on these grounds, prayed to dismiss the claim

petition.

6. Respondent No.3/Insurance Company filed

written statement denying the averments made in the

claim petition and denied the age, occupation and

income of the petitioner. It also denied the accident

which took place on 19.06.2013 and injuries sustained

by the petitioner. It is contended that the accident

has taken place due to negligence of the rider of the

motorcycle and the driver of the offending tractor was

not holding valid and effective driving licence as on

the date of the accident and therefore, it is not liable

to pay compensation and on these grounds, prayed to

dismiss the claim petition.

7. The Tribunal on the basis of the pleadings

of the parties framed the issues and recorded the

evidence. In order to prove the case, petitioner

examined himself as PW.1 and got marked the

documents as Exs.P1 to P171(a). The respondents

did not adduce any oral evidence, but got marked

policy copy and D.L. extract as Exs.R1 and R2.

8. The Tribunal, after recording the evidence

and considering the material on record, recorded

finding that the petitioner is entitled for compensation

from respondent Nos.1 to 3 and consequently, allowed

the claim petition in part awarding compensation of

Rs.5,31,400/- with interest at the rate of 6% per

annum from the date of petition till the date of deposit

and directed respondent No.3 to deposit the entire

compensation amount.

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

petitioner/appellant. None appear for respondent

No.3/Insurance Company. Hence, argument of

respondent No.3 is taken as nil.

11. The learned counsel for the petitioner

submits that the Tribunal referred the petitioner to

Medical Board. The Medical Board has issued

disability certificate and opined that the petitioner has

suffered disability of 80% to the whole body. But, the

Tribunal has taken the disability at 15% to the whole

body. Same is on the lower side. He further submits

that the compensation awarded by the Tribunal under

other heads is also on the lower side and on these

grounds, he prays to allow the appeal and to enhance

the compensation amount.

12. I have perused the records and considered

the submissions made by the learned counsel for the

petitioner. The point that arises for consideration is

with regard to quantum of compensation.

13. 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 charge sheet marked as Ex.P3.

Ex.P3 discloses that the accident occurred due to rash

and negligent driving of the driver of the offending

vehicle.

14. Perusal of the impugned judgment would

indicate that the petitioner/appellant has contended

that he was aged about 20 years as on the date of the

accident and he was doing sheep business and was

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

substantiate the said contention, 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 2013, the notional income

of the petitioner will have to be taken at Rs.7,000/- as

against Rs.6,000/- per month taken by the Tribunal.

In order to ascertain the permanent disability of the

petitioner, the Tribunal referred the petitioner to

Medical Board, Raichur. The medical Board on

examination of the petitioner has submitted report to

the Tribunal as per Exs.P171 and Ex.P171(a) is the

disability certificate. From perusal of Exs.P171 and

171(a) it would disclose that the petitioner has

suffered permanent disability. But the Tribunal has

taken the disability at 15%. Considering the records

produced by the petitioner i.e., Exs.P171 and 171(a),

the disability taken by the Tribunal at 15% to the

whole body is on the lower side and the same is

required to be enhanced to 25%. Taking into account

the age of the petitioner who was 20 years at the time

of accident, multiplier of "18" 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.3,78,000/- (Rs.7,000/- X 12 X 18 X 25/100).

15. Considering the nature of the injuries

sustained by the petitioner and Exs.P171 and P171(a),

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                50,000/-    60,000/-





Loss of future earning                  1,94,400/-        3,78,000/-
For   medical     expenses
based on Medical bills and              2,25,000/-        2,25,000/-
evidence
Loss of income during the
period     of    treatment                   12,000/-          42,000/-
(7,000 x 6)
Attendant charges                            15,000/-          20,000/-
Future treatment                             25,000/-          25,000/-
Conveyance and diet and
                                             10,000/-          15,000/-
Misc. Expenses
Loss of amenities                            -              30,000/-
Total                               5,31,400/-           7,95,000/-
Enhanced by this Court                                   2,63,600/-

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.

iii. The petitioner is entitled to an enhanced compensation of Rs.2,63,600/- along with interest at the rate of 6% per annum from the

date of petition till the date of realization.

iv. Respondent No.3 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.

v. The Tribunal is directed to release the enhanced compensation amount in favour of the Tribunal.

Sd/-

JUDGE NB*