Karnataka High Court
Ravi S/O Rudragouda Gangagoudar vs B Nagaraj S/O Basavanagouda on 30 May, 2022
Bench: Pradeep Singh Bypsyj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISC. FIRST APPEAL NO.21309/2011 ( MV-I)
BETWEEN :
RAVI S/O RUDRAGOUDA GANGAGOUDAR,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O TEREDAHALLI, TQ: RANEBENNUR,
DIST-HAVERI.
....APPELLANT
(BY SRI S.S.PATIL, ADVOCATE)
AND :
1. B.NAGARAJ S/O. BASAVANAGOUDA,
AGE: MAJOR, OCC-
R/O NO.1380/1, 8TH CROSS,
BHARATH COLONY, DIST: DAVANAGERE
(OWNER OF AUTO RICKSHAW NO. KA-17-TR-1452)
2. CHOLAMANDALAM MS GENERAL
INSURANCE CO. LTD.,
"DOREHOUSE", 11TH FLOOR, OLD NO. 234,
NEW NO. NSC, BOSE ROAD,
CHENNAI-600 0001, TAMILNADU.
...RESPONDENTS
(NOTICE TO RESPONDENT NO.1-SERVED)
(BY SRI S.K.KAYAKAMATH, ADV.FOR RESPONDENT NO.2)
THIS M.F.A. IS FILED U/SEC.173(1) OF THE MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04-11-2010,
PASSED IN M.V.C.NO.340/2005 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
2
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant aggrieved
by the Judgment and Award passed by the Principal Senior
Civil Judge and Additional Motor Accident Claims Tribunal,
Ranebennur (for short 'the Tribunal') in MVC No.340/2005
dated 04.11.2010. This appeal is founded on the premise
of inadequacy of compensation.
2. Parties to the appeal shall be referred to as
per their status before the tribunal.
3. Brief facts of the case are as under:
On 02.01.2005, at about 12.30 hours the claimant
had a religious function at Halageri and he had gone on his
motorcycle bearing registration No.KA-27/J-6419 along
with his wife Smt.Shilpa as a pillion rider. While the
claimant was riding his motorcycle towards extreme left
side on Halageri road infront of Siddeshwar Tractor
Garage, Ranebennur, at that time a three wheeler auto
rickshaw bearing registration No.KA-17/TR-1452 came
from opposite direction in a down gradient road driven by
its driver in a rash and negligent manner so as to
endanger human life and safety and in a high speed came
to the wrong side of the road and dashed against the
claimant's motorcycle. Due to which, the claimant
sustained grievous injuries of comminuted compound
super condylor fracture of right femur both bones of right
forearm, fracture of both bones of right leg and had also a
bone deep wound over the forehead. Immediately
thereafter claimant was shifted to the Government
Hospital at Ranebennur and thereafter he was shifted to
City Central Hospital, Davanagere for better treatment.
Where, he was inpatient for a period of three days
subsequent that to the claimant was shifted to Manipal
Hospital, Bengaluru. Where, he took treatment as an in-
patient from 05.01.2005 to 04.02.2005, several major
operations were conducted on the forearm and to both
bones of right leg right femur and patella. Steel rods and
plates were fixed to the right forearm and which are still
present in the body. At the time of discharge external
fixtures with full POP cast were applied to full right leg
with a strict bed rest advised and daily dressing as the
wound turned septic and was advised regular follow up
treatment with the Manipal Hospital, Bengaluru.
4. It is stated that the claimant spent more than
Rs.5,00,000/- for medicine and treatment and
miscellaneous expenses. It is further stated that the
claimant was a Post Graduate in M.Com. having completed
his M.Com. in the year 1990. He worked as a Manager in
Siddeshwar co-operative Society in Ranebennur with the
monthly salary of Rs.5,000/-. It is also pleaded that the
claimant used to work in the agricultural field as his father
due to old age suffered ill health and eventually he had to
resign from his job to take agricultural work due to
incapacity of his father. It is stated that by doing
agricultural work in 20 acres of land and in other 07 acres
of land he was earning Rs.1,00,000/- per month. Apart
from this, it is claimed by the claimant that he was earning
Rs.10,00,000/- from the source of agriculture, horticulture
and sericulture.
5. Due to the injuries sustained in the accident
caused due to the negligence of the driver of auto
rickshaw, claimant filed a claim petition before the
Tribunal seeking compensation against the respondents.
appeared before the Tribunal and filed their detailed
statement of objections respectively inter alia denying the
contents of the claim petition including age, avocation and
income of the claimant. It was also denied that the
accident occurred due to the negligent driving of the driver
of auto rickshaw. It was further pleaded that accident
occurred due to the negligence of two wheeler by the
claimant himself.
7. However, respondent No.1 who is the owner of
auto rickshaw pleaded that the vehicle was insured with
the 2nd respondent-Insurance Company and if any liability
is held against him, the same will have to be fastened on
the 2nd respondent as the insurance policy was in force as
on the date of occurrence of accident. Respondent No.2
pleaded that though the insurance policy was in force the
1st respondent driver of the auto rickshaw did not inform
the occurrence of accident and he had violated the terms
and conditions of the policy. It was also pleaded that the
1st respondent did not possess a valid driving license as on
the date of accident, thereby violated the terms and
conditions of the policy. It was also pleaded that
respondent No.1 did not have the Registration Certification
and Fitness Certificate as per the Motor Vehicle Rules.
8. On the basis of pleadings, the Tribunal has
framed relevant issues for consideration.
9. In order to substantiate the issues and to
establish the case, the claimant got examined himself as
P.W.1 and the Doctor as P.W.2 and got marked documents
as Exs.P1 to Ex.P.394, whereas respondent examined one
witness as R.W.1 and got marked Ex.R.1 to Ex.R.4.
10. On the basis of material evidence both oral
and documentary and on hearing the submissions of
learned counsel appearing for both parties, Tribunal has
awarded a total compensation of Rs.3,89,000/- with
interest at the rate of 6% p.a. and held joint liability
against respondent Nos.1 and 2 and directed the 2nd
respondent to deposit above said amount in favour of the
claimant.
11. Being aggrieved by the meager compensation
amount awarded by the Tribunal, claimant is before this
Court seeking enhancement of compensation.
12. It is the vehement contention of learned
counsel for appellant-claimant that the Judgment and
Award passed by the Tribunal is contrary to the material
facts both oral and documentary and evidence on record.
It is contended that the Tribunal has grossly erred in not
taking into consideration the evidence adduced by the
Doctor-P.W.2 with regard to disability having encountered
by the claimant. It is further contended by the learned
counsel that the Tribunal has committed a gross error in
not considering the aspect of claimant being an
agriculturist. He was doing agricultural work in 27 acres of
land and also his qualification as Post Graduate in M.Com.
He further contends that the Tribunal has grossly erred in
calculating the disability to the extent of 20% to the whole
body. Whereas, the Doctor, P.W.2 has clearly opined with
regard to disability to the extent of 35% to the whole body
and 80% to the limbs.
13. It is further contended that the Tribunal has
totally ignored to take into consideration the opinion
expressed by the Doctor with regard to the several
fractures sustained by the claimant due to the accident
and the evidence of the Doctor with regard to the claimant
having been incapacitated both limbs. Where it is stated
that the claimant is not in a position to walk, squat, sit
and cross the legs and he is unable to do agricultural work
or activities. Based on which, the disability was issued by
the Doctor at Ex.P.13. It is also contended by the learned
counsel that the Tribunal has grossly erred in not awarding
just and reasonable compensation under the head pain
and agony, under the head loss of income during laid up
period. The Tribunal has also erred in not awarding any
amount of compensation under the head loss of amenities.
On these grounds, he seeks to allow the appeal and to
enhance the compensation awarded by the Tribunal.
14. Per contra, learned counsel for the
respondent-Insurer vehemently contends that the
Judgment and Award passed by the Tribunal is in
conformity with the material evidence both oral and
documentary placed on record. The Tribunal has not
committed any error or violation in calculating and
awarding just and reasonable compensation. Learned
counsel further contends that admittedly no proof of
income has been produced by the claimant. Hence, the
Tribunal has taken notional income of Rs.4,000/- per
month, which itself is on the higher side. Learned counsel
further contends that the Tribunal has assessed the
disability rightly to the extent of 20% as against 35% to
the whole body assessed by the Doctor P.W.2. He further
contends that there is no requirement of interference by
this Court on the aspect of disability so also on other
aspects as just and reasonable compensation has been
awarded by the Tribunal.
15. Learned counsel further contends that the
opinion expressed by the Doctor P.W.2 with regard to
disability at 80% towards the limb and 35% towards the
whole body is on the higher side. Hence, the tribunal has
rightly reduced the same in accordance with law to the
extent of 20%, which does not call for interference by this
Court. On these grounds learned counsel for the
respondent insurer seeks to dismiss the appeal and affirm
the orders passed by the tribunal.
16. Having heard the learned counsel for the
appellant/claimant and learned counsel for the
respondent/insurer, the points that arise for consideration
before this Court are:
i) Whether the claimant is entitled to
enhancement of compensation?
ii) What order?
17. It is not in dispute that on 2.1.2005 at about
12.30 hours while the claimant was driving his motorcycle
along with his wife, he met with accident due to the three
wheeler auto rickshaw having come on the wrong side of
the road and dashed against him leading to injuries
suffered by the claimant.
18. In order to substantiate this aspect, the
claimant has got examined himself as PW.1 and has
produced Exs.P.1 to P.7 police records. These police
records are pursuant to the enquiry and investigation
conducted by the jurisdictional police. The evidentiary
value of these Exs.P.1 to P.7 is not disputed. So also the
same is not challenged in any Court of law to disprove the
same by the respondent. Hence the evidentiary value of
these exhibits is taken on its face value to be true. Hence,
the liability fastened on the insurer who is the insurer of
the three wheeler is held to be correct and this Court
would not want to delve into the occurrence of the
accident, rashness and negligence and the liability
fastened on the insurer.
19. Now coming to the aspect of age, avocation
and income of the claimant, it is not in dispute that the
age of the claimant was 36 years as on the date of
occurrence of accident. Though the claimant has stated,
he is a post-graduate in M.Com., and he was earning
about Rs.1,00,000/-, no documentary proof has been
placed before the Court. So also with regard to the
agricultural income and income from sericulture and
horticulture, no material evidence has been placed by the
claimant. Admittedly no income proof is placed by the
claimant before the tribunal. In view of the same, the
tribunal has taken a notional income of Rs.4,000/-.
20. It is relevant to note at this juncture that the
insurer or the claimant have not preferred any appeal
against the judgment and award. In view of there being no
material evidence with regard to proof of income, the
tribunal and this Court would have to make a guess work
with regard to the income of claimant based on his
statement and evidence on oath. When there is no
material to prove the income placed before the Court,
guess work would have been made based on the notional
income chart prescribed by the Legal Services Authority.
In order to arrive at a standard income. For the accident
year 2005, the notional income is prescribed at Rs.3,500/-
per month. However the tribunal has assessed the income
at Rs.4,000/- per month. In view of there being no
counter appeal or cross appeal or cross objection preferred
by the insurance company, the same is not disturbed. The
claimant being 36 years old at the time of accident, the
appropriate multiplier applicable would be 15 as held by
the Apex Court in the case of Sarla Verma (Smt) and
others vs. Delhi Transport Corporation and another,
reported in (2009) 6 Supreme Court Cases 121.
21. The claimant has also examined the doctor as
PW.2 who has deposed before the Court by narrating the
injuries sustained by the claimant, which are forthcoming
at paragraph No.11 of the judgment. On a perusal of the
same, it is seen that there are fractures of both bones of
right hand and several other injuries sustained by the
claimant. On overall evaluation by the doctor PW.2, he has
assessed the disability to an extent of 80% to the limb and
35% to the whole body. On appreciation of the same, the
tribunal has arrived at disability to the extent of 20%. This
aspect of disability assessed by the tribunal is seriously
disputed by the learned counsel for claimant. He
vehemently contends that the tribunal is not an expert
over and above the medical reports to reduce the disability
against the opinion rendered by the doctor PW.2.
22. On a careful perusal of the evidence adduced
by PW.2, it is seen that the doctor has assessed the
disability to limb at 80% and to the whole body at 35%. It
is trite law that the Courts are not experts and they
cannot sit over the opinions of the experts in arriving at
opinion than that is expressed by the experts. However
there is a reasonable calculation made by the expert to
sustain the said opinion. In the present case on hand the
doctor himself has assessed the disability to be 80% to
the limb and however holds 35% to the whole body. The
disability of 80% to the limb would have to be calculated
by dividing it into three parts as upper, middle and lower
parts for arrival of the compensation for loss of earning
capacity for the disability sustained. In the present case
even if it is divided 80% towards one limb by three, the
disability would be 27%. But the tribunal has reduced the
disability to the whole body to 20% as against 35%
expressed by the doctor. On a careful analysis and
evaluation of the doctor it is seen that as to why the
doctor has assessed the disability at 35%, in view of the
fact that the claimant is unable to walk, unable to stand,
unable to squat and unable to cross his legs, thereby he is
unable to do any agricultural or other activities as he was
doing prior to the date of occurrence of accident. Hence,
the disability expressed by the tribunal is on the lower
side.
23. In view of the serious injuries and fractures
suffered by the claimant, I am of the opinion that the
whole body disability assessed by the doctor at 35%
requires to be taken on its face value, the tribunal having
reduced the whole body disability to 20% is erroneous.
Accordingly the same is set aside and the disability is
assessed at 35% to the whole body. In view of the above,
the loss of income due to permanent disability and earning
capacity would be as follows:
Rs.4,000/- x 12 x 35% x 15 =
Rs.2,52,000/-, as against Rs.1,44,000/-
awarded by the tribunal.
24. The tribunal has awarded a sum of
Rs.1,50,000/- towards medical expenses on the basis of
the medical bills produced by the claimant which is on
actual basis and the same does not call for interference.
Hence it is retained.
25. The tribunal has awarded Rs.25,000/- towards
pain and suffering and agony, which requires
enhancement as the claimant has suffered severe multiple
fractures and was inpatient for more than five months.
Hence I deem it appropriate to enhance the compensation
at Rs.50,000/- as against Rs.25,000/- awarded by the
tribunal under this head.
26. Towards loss of income during laid up period,
the tribunal has awarded Rs.20,000/- in the guise of the
claimant being inpatient for a period of five months, it is
not possible for the claimant to get back to work
immediately after discharge from hospital. Considering the
serious nature of injuries suffered by the claimant and
multiple fractures, another five months would be certainly
required for the claimant to get back to his normal
activities. Therefore Rs.40,000/- is awarded under this
head.
27. It is seen that the tribunal has not awarded
any amount under the head loss of amenities. I am of the
opinion that Rs.30,000/- is reasonable to be awarded
under this head. Accordingly the same is awarded.
28. Towards food, nourishment and conveyance
charges, there is no amount awarded by the tribunal.
Admittedly the claimant was inpatient for five months.
Therefore, Rs.50,000/- is awarded under this head.
29. In view of the same, the claimant is entitled to
enhancement of compensation as per the table mentioned
hereunder.
Sl.No. Heads. Amount in
(Rs.)
1. Loss of income due to permanent 2,52,000
disability.
2. Medical expenses. 1,50,000
3. Pain and suffering and agony 50,000
4. Loss of income during laid up 40,000
period.
5. Loss of amenities. 30,000
6. Food, nourishment and 50,000
conveyance charges.
Total: 5,72,000
Less: awarded by tribunal: 3,89,000
Enhanced compensation: 1,83,000
30. Accordingly, I pass the following:
ORDER
i) Appeal is partly allowed.
ii) Judgment and award dated 4.11.2010, passed by
the Prl. Senior Civil Judge and Addl. MACT,
Ranebennur, in MVC No.340/2005 is modified.
iii) Claimant is entitled for a total enhancement
Rs.5,72,000/- as against Rs.3,89,000/- awarded by
the tribunal.
iv) All other terms and conditions stipulated by the
tribunal shall stand intact and it is not interfered.
v) The respondent insurer shall pay the enhanced
compensation with interest at 6% p.a. from the date
of petition till the date of realization, within a period
of six weeks from the date of receipt of a copy of
this order, to be deposited before the jurisdictional
tribunal.
vi) No order as to costs.
SD/-
JUDGE
Ckk/para 1 to 15.
Mrk/para 16 to end.
