Karnataka High Court
Vivekanand vs S.Lohit And Anr on 18 December, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2023:KHC-K:9347
MFA No. 201534 of 2018
C/W MFA No. 201533 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO. 201534 OF 2018 (MV)
C/W
MISCL. FIRST APPEAL NO. 201533 OF 2018 (MV)
IN MFA NO. 201534 OF 2018.
BETWEEN:
ROHAN
S/O RAMESH KOPPAD,
AGE: 30 YEARS, OCC: SOFTWARE ENGINEER,
R/O VIVEK NAGAR,
Digitally signed VIJAYAPUR-586101.
by LUCYGRACE
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. S. LOHITH
S/O SATHYA MURTHY,
AGE: 44 YEARS, OCC: BUSINESS,
R/O 126/1, 6TH CROSS,
VENKATESHWARA LAYOUT,
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MFA No. 201534 of 2018
C/W MFA No. 201533 of 2018
S.G. PALYA, DRC POST,
BENGALURU-560029.
2. THE BRANCH MANAGER,
FUTURE GENERAL INSURANCE COMPANY
LIMITED,
PASADENA NO.8/1 (OLD NO.125/A),
3RD FLOOR EZONA BUILDING,
ASHOK PILLAR ROAD,
JAYANAGAR,
1ST BLOCK BENGALURU-560011
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
R1-V/O DATED 01.07.2021 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL
AND ENHANCE THE COMPENSATION AS CLAIMED IN THE
CLAIM PETITION, BY MODIFYING THE JUDGMENT AND
AWARD DATED 27.12.2017 PASSED BY THE COURT OF III
ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT NO.
IV, VIJAYAPURA IN MVC NO.744/2014.
IN MFA NO. 201533 OF 2018
BETWEEN:
VIVEKANAND
S/O BALASAHEB PATIL,
AGE: 32 YEARS, OCC: SOFTWARE ENGINEER,
R/O NEAR GANAPATI CHOWK,
VIJAYAPURA-586101.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
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MFA No. 201534 of 2018
C/W MFA No. 201533 of 2018
AND:
1. S. LOHITH
S/O SATHYA MURTHY,
AGE: 44 YEARS, OCC: BUSINESS,
R/O 126/1, 6TH CROSS,
VENKATESHWARA LAYOUT,
S.G. PALYA, DRC POST,
BENGALURU-560029.
2. THE BRANCH MANAGER,
FUTURE GENERAL INSURANCE COMPANY
LIMITED,
PASADENA NO.8/1 (OLD NO.125/A),
3RD FLOOR EZONA BUILDING,
ASHOK PILLAR ROAD,
JAYANAGAR, 1ST BLOCK,
BENGALURU-560011.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
R1-V/O DATED 13.07.2021 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
27.12.2017 PASSED BY THE COURT OF III ADDITIONAL
DISTRICT JUDGE AND MEMBER, MACT NO.IV, AT VIJAYAPURA
IN MVC NO.743/2014.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 201534 of 2018
C/W MFA No. 201533 of 2018
JUDGMENT
The appellants-claimants are before this Court
seeking enhancement of compensation awarded by
the Tribunal in its judgment and award dated
27.12.2017 passed in MVC Nos.743/2014 and
744/2014 on the file of the Member, MACT-IV and the
III Additional District Judge, Vijayapura.
2. Brief facts of the case are that on
25.01.2014 at about 6:30 p.m., Mr. Rohan, the
appellant in MFA No.201534/2018 as a rider of
motorcycle bearing registration No.KA-01/ER-9484
was proceeding towards Rajaji Nagar side along with
Mr. Vivekanand, the appellant in MFA No.201533/2018
as pillion rider, at that time the driver of Car bearing
registration No.KA-01/AA-6263 drove the same in
rash and negligence manner and dashed against the
motorcycle ridden by Rohan, resulting in both the
riders sustaining grievous injuries. Thereupon,
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claimants filed claim petitions seeking compensation
contending that both of them are Software Engineers,
earning Rs.2,50,000/- per annum and due to the
accidental injuries they have suffered disability. The
claimants-appellants examined as PWs.1 and 2,
respectively, and one Dr. S.S. Nagathan has been
examined as PW3. No oral or documentary evidence is led
by the respondents. The Tribunal on consideration of
evidence has granted Rs.86,000/- to Mr. Vivekanand, who
was claimant in MVC No.743/2014 and Rs.91,000/- to Mr.
Rohan, who was claimant in MVC No.744/2014, with
interest at 9% per annum, from the date of claim petitions
till realization and directed the Insurance Company to pay
the compensation. Being aggrieved by the same, the
appellants are before this Court.
3. Sri Sanganagouda V. Biradar, learned counsel
for the appellants submits that though the appellant in
MFA No.201534/2018 has sustained disability and the
Doctor has assessed the same at 25% to 30%, the
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Tribunal has not awarded any compensation under the
head disability. He further submits that the compensation
awarded under other heads in both the claim petitions is
also on the lower side, hence, seeks for allowing the
appeals.
4. Per contra, Smt. Preeti Patil Melkundi, learned
counsel for the Insurance Company submits that though
the claimants were earning Rs.2,50,000/ per annum,
neither any evidence is produced regarding their income
nor any evidence is produced regarding reduction in their
earning. As such, it is submitted that grant of
compensation by the Tribunal is just and proper
warranting no interference.
5. Heard the learned counsel for the parties and
perused the records.
6. The Tribunal has assessed the evidence and
awarded the compensation as noted above. The Tribunal
has declined to take into consideration the disability of the
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claimants, more particularly of Mr. Rohan the appellant in
MFA No.201534/2018 on the premise that PW3 - Doctor
was not the treated Doctor. The Tribunal has also
observed that PW3 is regularly issuing Disability
Certificates and appearing before the Courts and deposing
regarding disability of the claimants though he had not
treated the claimant. Though, as submitted by the
learned counsel for the appellant, mere non-examination
of the treated Doctor does not mean that the claimants
have not suffered any disability in the instant appeals it is
necessary to see the contention of the claimants that they
were earning Rs.2,50,000/- per annum as Software
Engineers and that the injuries sustained by them have
resulted in reduction of their earning capability. If this is
the contention of the claimants, nothing prevented them
to produce any material evidence with regard to reduction
of their income. In that view of the matter, the contention
that the claimant - Mr. Rohan the appellant in MFA
No.201534/2018 has suffered 30% disability cannot be
accepted. The Tribunal though has declined to accept the
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disability for the reason of treating Doctor has not been
examined, this Court declined to interfere and assess
disability in the absence of any material regarding
reduction of the income of the claimants.
7. However, notwithstanding the above, this Court
is of the considered opinion that in view of the nature of
injuries sustained by the claimants as stated in Para
Nos.23 and 28 of the impugned judgment, a sum of
Rs.75,000/- be awarded as global compensation to each
appellants with interest at the rate of 6% per annum from
the date of petition till realization, in addition to what has
been awarded by the Tribunal.
8. The appeals are partly allowed.
9. The respondent-Insurance Company is directed
to deposit the compensation with interest within a period
of 6 [six] weeks from the date of receipt of a copy of this
judgment.
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10. The trial Court Records be returned to the
Tribunal forthwith.
Sd/-
JUDGE
SBS
