Karnataka High Court

Ganesh Acharya vs Rojo on 26 May, 2022

Bench: B.Veerappa, K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 26TH DAY OF MAY, 2022

                        PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

        THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

     MISCELLANEOUS FIRST APPEAL No.5726/2019 (MV-I)


BETWEEN:

GANESH ACHARYA,
AGED ABOUT 38 YEARS,
S/O MOHAN ACHARYA,
R/AT DOOR NO.4-25,
GAYATHRI NIVAS,
HALASINAKATTE,
PILAR, SANTHOOR VILLAGE,
KARKALA TALUK - 574 104.
                                      ...APPELLANT
(BY MS. NAZEEFA M MULLA, ADVOCATE FOR
    SRI PAVANA CHANDRA SHETTY H., ADVOCATE)

AND:

1.     ROJO,
       AGED ABUOT 40 YEARS,
       S/O JOSEPH,
       R/AT SANTHRUPATHI HOUSE,
       BAJAGOLI POST,
       MUDAR VILLAGE,
       KARKALA TALUK - 574 104.
                        -2-



2.   THE BRANCH MANAGER,
     UNITED INDIA INSURANCE CO.LTED.,
     KARKALA BRANCH,
     P.B.NO.29, 2ND FLOOR,
     SUSHILA SANJIV ENCLAVE,
     NEAR KARNATAKA BANK,
     MARKET ROAD,
     KARKALA - 574 104.
                                   ...RESPONDENTS

(BY SRI ANUP SEETHARAMA RAO, ADVOCATE FOR
 SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R2
 VIDE ORDER DATED 27.05.2021. NOTICE TO R1 IS
DISPENSED WITH)

                       ****

     THIS   MISCELLANEOUS    FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 02.02.2018 PASSED IN
MVC NO.1088/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE, AND MACT, KARKALA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ORDERS, THIS DAY, K.S.HEMALEKHA J., DELIVERED
THE FOLLOWING:
                                 -3-


                         JUDGMENT

The present appeal is preferred by the claimant

injured assailing the judgment and award dated

02.02.2018 in MVC No.1088/2016 on the file of the

Senior Civil Judge and AMACT, Karkala (hereinafter

referred to as 'the Tribunal' for short) seeking

enhancement of compensation.

2. The parties herein are referred to as per

their ranking before the Tribunal for the sake of

convenience.

3. The claimant filed claim petition under

Section 166 of the Motor Vehicles Act, 1988 ("the Act"

for short), seeking compensation for the injuries

suffered in the road traffic accident that occurred on

26.06.2016 when claimant was riding Hero Honda

Pleasure two wheeler bearing registration No.KA-20-Y-

7277 along with his wife and his minor son from

Nelligudde towards Halekatte of Nitte Village, and

when they reached near Mangila Bailu of Kalya Village,

one Mahindra Bolero Pickup Jeep bearing registration

No.KA-19-C-6328 came from Halekatte towards

Nelligudde side in a rash and negligent manner and

dashed against the vehicle of the injured. Due to the

impact of the accident, the claimant suffered grievous

injuries and he was hospitalized for more than 155

days. It is the contention of the claimant that he was

working as a Carpenter and was earning Rs.30,000/-

per month and due to the impact of the accident, he is

not in a position to work as before and thus, sought

for compensation.

4. In pursuance of the summons issued by the

Tribunal, respondent No.1-owner of the vehicle and

respondent No.2-Insurance Company have appeared

and filed separate statement of objections.

5. Owner of the vehicle-respondent No.1

contended that the accident occurred due to rash and

negligent riding of rider of the claimant himself and

not due to the rash and negligent driving of the driver

of the Mahindra Bolero Pickup Jeep.

6. Respondent No.2-Insurance Company

denied the petition averments and admitted that the

Mahindra Bolero Pickup Jeep bearing registration

No.KA-19-C-6328 was insured with the company.

However, it is further contended that the driver of the

said vehicle was driving the vehicle in the state of

drunkard and violated the permit condition and as

such, sought for contributory negligence on the part of

the claimant as well as driver of the Mahindra Bolero

Pickup Jeep and sought to dismiss the claim petition.

7. The Tribunal on the basis of the pleadings

of the parties, framed the following:

ISSUES "1. Whether the petitioner proves that he sustained injuries in a Motor Vehicle Accident on 26.06.2016 at 5.30 p.m., near Mangilabailu of Kallya Village, due to rash and negligent driving of Mahindra Bolero Pickup Jeep bearing Reg.No.KA-19-C-6328 by it driver as contended?

2. Whether the respondent No.2 proves that the driver of Mahindra Bolero Pickup Bearing Reg.No.KA-19-C-6328 had consumed alcohol at the relevant time of accident, thereby violated permit condition?

3. Whether the respondent No.2 proves contributory negligence on the part of petitioner and the petition is bad for non- joinder of necessary party?

4. Whether the petitioner is entitled for the compensation amount, if so what is the amount and from whom it is recoverable?

5. What Order or Award?"

8. The claimant in order to substantiate his

contention examined himself as PW.1 and one more

witness as PW.2 and got marked documents at

Exs.P.1 to P.19 and Exs.C 1 to C4. On the other

hand, respondent No.2-Insurance Company examined

its officer as RW.1 and got marked documents at

Exs.R1 and R.2.

9. The Tribunal on the basis of the pleadings,

evidence and material on record held that the accident

occurred due to the rash and negligent driving of the

driver of the Mahindra Bolero Pickup Jeep bearing

registration No.KA-19-C-6328 and fastened the

liability upon the Insurance Company as respondent

No.2 has failed to prove that the driver of the

Mahindra Bolero Pickup Jeep had consumed alcohol at

the time of the accident and thereby, violated the

permit conditions and also respondent No.2 has failed

to prove the contributory negligence on the part of the

claimant at the time of the accident. Accordingly, the

Tribunal awarded the total compensation of

RS..5,37,010/- with interest @ 8% p.a. from the date

of petition till the date of realization.

10. Aggrieved by the quantum of compensation

awarded by the Tribunal being on the lower side, the

claimant has filed present appeal for further

enhancement.

11. It is relevant to note that the Insurance

Company has not filed any appeal challenging the

findings of the Tribunal regarding fastening the

liability upon the Insurance Company.

12. Heard learned counsel Ms. Nazeefa M.

Mulla for Sri Pavana Chandra Shetty, Advocate for the

appellant and learned counsel Sri Anup Seetharama

Rao for Sri B.C. Seetharama Rao Advocate for

respondent No.2.

13. Learned counsel for the appellant would

contend that the award of the compensation by the

Tribunal is on the lower side and the notional income

taken by the Tribunal to the extent of Rs.9,000/- per

month is without considering the guidelines of the

Karnataka State Legal Services Authority, Bengaluru

for the accident that occurred in the year 2016. It is

also contended that the compensation awarded under

the various heads is on the lower side and the

percentage of the disability taken by the Tribunal to

the extent of 8% is on the lower side, in light of

Ex.P.7 - Wound Certificate produced by the claimant

whereby the claimant has suffered four fractures and

three grievous injuries and thus, sought to allow the

appeal and enhance the compensation.

14. Per contra, learned counsel for respondent

No.2 would contend that the award of compensation

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

any interference in the hands of this Court. It is also

contended that the Tribunal has rightly taken the

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notional income of the claimant at Rs.9,000/- per

month, in the absence of any documents produced by

the claimant to show the actual income of the

claimant. It is also contended that the award of

interest @ 8% p.a. being much on the higher side and

consistently, this Court has been awarding 6%

interest on the enhanced compensation amount and

sought to dismiss the appeal.

15. Having heard the learned counsel for the

appellant and learned counsel for respondent No.2,

the only point that arises for our consideration is:

"Whether the claimant/appellant has made out a case seeking further enhancement of the compensation in the facts and circumstances of the present case."

16. The date, time, accident, fractures and

grievous injuries suffered by the claimant as per

Ex.P.7-Wound Certificate are not in dispute. It is also

- 11 -

not in dispute that the accident occurred due to the

rash and negligent driving of the driver of the

Mahindra Bolero Pickup Jeep bearing registration

No.KA-19-C-6328 as is evidenced from Exs.P.1 and

P.17. The only dispute is regarding quantum of

compensation awarded by the Tribunal under the

other heads. The Tribunal has taken the income of

the claimant at Rs.9,000/- per month.

17. It is relevant to note that the claimant has

not produced any document to show that he was

earning Rs.30,000/- per month as contended in his

claim petition as well as in his evidence nor any

corroborative evidence is forth coming that the

claimant was earning Rs.30,000/- per month by doing

carpenter work. In view of this fact, in the absence of

any documentary evidence, the notional income as

per the Karnataka State Legal Services Authority,

Bengaluru, for the accidents that occurred in the year

- 12 -

2016, the notional income has to be taken is

Rs.9,500/- per month. The claimant in order to prove

his injuries, he examined PW.2 who in unequivocable

terms stated that the claimant has 15% permanent

physical impairment in his left lower limb and 10%

physical impairment in his left upper limb. By way of

Ex.C.3- Disability Certificate, PW.2 deposed that the

claimant would require implant removal surgery of left

elbow, which would cost Rs.35,000/- towards future

medical expenses. Taking note of the same, the

Tribunal has rightly taken the disability to an extent of

8% to the whole body and it does not call for any

interference. Considering the age of the claimant -

injured the multiplier applicable is 15 applied as

rightly held by the tribunal In the result, a sum of

Rs.1,36,800/- is arrived under the head loss of

future income (9500 x 8% x 15 x 12).

- 13 -

17. Since the accident is not in dispute and the

claimant has suffered injury as per Ex.P.7-Wound

Certificate and Ex.C.3-Disability Certificate, which

reads as under:

"1. He is not able to kneel, squat and sit cross legged.

2. He has difficulty in climbing stairs.

3. He has 10o fixed flexion deformity in is left elbow.

4. He has 10o loss of movement in flexion- extension arc of his left elbow joint.

5. Range of motion in left shoulder is normal.

6. Presently he has no complaints regarding his bladder functions.

7. His recent radiographs shows united fracture of left femur, left femur shaft fracture and left inferior public rami fracture with implants in situ."

18. Taking into consideration the age and

fracture sustained by the claimant and that he was

hospitalized for more than 155 days, we are of the

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considered view that the claimant has made out a

case for enhancement. After reassessing the entire

material on record, the claimant is entitled for the

compensation under the following head:

Sl. Head of compensation Amount in Rs. No.

1.    Pain and agony                      1,20,000.00

2.    Loss of amenities of life             50,000.00
3.    Rest, nourishment and                 50,000.00
      attendant charges
4.    Medical expenses (as                1,95,910.00
      awarded by the
      tribunal)
5.    Conveyance                            50,000.00
6.    Loss of income during                 46,500.00
      laid up period
7.    Loss of future income               1,36,800.00
8.    Future medical                        35,000.00
      expenses (as awarded
      by the tribunal)
                         Total           6,84,210.00

19. The claimant is entitled for compensation of

Rs.6,84,210/- as against Rs.5,37,010/- awarded by

the Tribunal. Deducting Rs.5,37,010/- out of

Rs.6,84,210/-, the claimant is entitled for enhanced

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compensation of Rs.1,47,200/- with interest at the

rate of 6% per annum from the date of claim petition

till the date of realization. Accordingly, we answer the

point framed for consideration partly in affirmative

favouring the claimants.

In the result, we pass the following:

ORDER