Karnataka High Court

Syed Meer vs Iranna And Anr on 19 December, 2023

Author: R.Devdas

Bench: R.Devdas

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                                                   NC: 2023:KHC-K:9292-DB
                                                        MFA No. 202382 of 2019




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                            DATED THIS THE 19TH DAY OF DECEMBER, 2023

                                             PRESENT

                                THE HON'BLE MR. JUSTICE R.DEVDAS
                                                AND
                                 THE HON'BLE MR. JUSTICE C M JOSHI

                           MISCL. FIRST APPEAL NO. 202382 OF 2019 (MV-I)

                      BETWEEN:

                           SYED MEER S/O LATE IBRAHIM SAB,
                           AGE: 60 YEARS, OCC: PEON IN GOVT.
                           HIGH SCHOOL, KODLI, TQ:CHINCHOLI,
                           NOW RESIDING IN HOUSE NO. 1-2-146,
                           MILAT NAGAR, SEDAM ROAD,
                           KALABURAGI-585101.

                                                                   ...APPELLANT
                      (BY SRI. BABU H.METAGUDDA, ADVOCATE)

Digitally signed by
                      AND:
SOMANATH
PENTAPPA MITTE
Location: HIGH        1.   IRANNA S/O SAIBANNA DANGE,
COURT OF
KARNATAKA                  AGE: MAJOR, OCC: OWNER OF JEEP
                           NO.KA-32/B-4085,
                           R/O DEVAL GANAGAPUR,
                           TQ:AFZALAPUR,
                           DIST: KALABURAGI-585101.

                      2.   THE DIVISIONAL MANAGER,
                           CHOLA MANDALAM M.S.
                           GENERAL INSRUANCE CO. LTD,
                           BANGALORE-550042.
                                                                ...RESPONDENTS
                      (BY SRI. S S ASPALLI, ADVOCATE FOR R2;
                       NOTICE TO R1 IS DISPENSED WITH)
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                                  NC: 2023:KHC-K:9292-DB
                                        MFA No. 202382 of 2019




       THIS MFA IS FILED UNDER U/SEC 173(1) OF MV ACT,
PRAYING TO A) CALL FOR THE RECORDS IN M.V.C NO.166/13
ON THE FILE OF THE PRL.ADDL.SENIOR CIVIL JUDGE & MACT
AT-KALABURAGI. B) ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED: 03.08.2019 PASSED IN M.V.C
NO.166/2013 BY THE PRL. SENIOR CIVIL JUDGE & MACT AT-
KALABURAGI. AND ENHANCING THE COMPENSATION FROM
RS.7,21,000/- WITH 6% INTEREST TO RS.36,70,000/- WITH
12% INTEREST. C) GRANT SUCH OTHER AND FURTHER
RELIEF'S AS THIS HON'BLE COURT DEEMS FIT, IN THE
CIRCUMSTANCE OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY.


       THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
C.M.JOSHI J., DELIVERED THE FOLLOWING:
                           JUDGMENT

Being aggrieved by the judgment and award in MVC

No.166/2013 dated 03.08.2019 by the learned Prl. Senior

Civil Judge & MACT, Kalaburagi, the petitioner is before

this Court in appeal seeking enhancement of the

compensation.

2. The petitioner/appellant had met with an

accident on 27.08.2012 while he was riding his motorcycle

bearing No.KA-32/EB-4868 at about 6.30 p.m. near Hotel

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Siddanna on Heroor (K) road, as he was hit by a Cruiser

bearing No.KA-32/B-4085. It was alleged that the said

driver of Cruiser drove the same in high speed and

negligent manner and dashed against the motorcycle of

the petitioner, resulting in the accident. The petitioner

was shifted to Basaveshwara Hospital Kalaburagi, then

shifted to Gangamai Hospital Solapur and thereafter he

was shifted to Narayana Hrudayalaya Hyderabad for

higher treatment. It was contended that the petitioner

has sustained inter cerebral bleeding in right frontal lobe,

left temporal lobe, Subdural hemorrhage in right frontal

lobe, with minimal subarachnoid extension, multiple

contusion in bilateral frontal lobe, cerebral edema,

subarachnoid bleeding, bleeding in lateral cerebral

hemisphere, bilateral maxillary and sphenoid, hemo sinus

etc., and fracture of several bones. It was contended that

the petitioner was a teacher in a Government school,

earning Rs.18,000/- per month and he had suffered

permanent disability on account of head injury and

therefore he claimed adequate compensation.

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3. On issuance of notice, the respondent No.1 and

2, who are the owner and insurer of the Cruiser vehicle

appeared and the respondent No.2 filed objections denying

the petition averments. It was contended that the driver

of the vehicle was not having a valid and effective driving

licence and there is a delay in filing the complainant.

Therefore, it sought for dismissal of the petition.

4. The Tribunal framed appropriate issues and the

petitioner was examined as PW1 and two witnesses were

examined as PW2 & PW3. The Ex.P1 to Ex.P12 were

marked. The respondent No.2 examined its official as

RW1.

5. After hearing the arguments, the Tribunal held

that the accident had occurred on account of the

actionable negligence of the Cruiser driver and petitioner

is entitled for a compensation of Rs.7,21,000/- under

following heads:

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1 Towards pain and suffering Rs.55,000/- 2 Towards medical expenses Rs.4,60,053/- 3 Towards Diet and attendant Rs.60,000/-

charges 4 Towards loss of income Rs.1,25,720/-

during laid-up period 5 Towards loss of feature -Nil-

earning capacity 6 Towards loss of amenities Rs.20,000/-

                     Total                    Rs.7,20,773/-
               Total rounded off              Rs.7,21,000/-

6. Being aggrieved by the said judgment, the

petitioner is before this Court in appeal.

7. We have heard the arguments by learned

counsel appearing for the appellant and learned counsel

appearing for respondent No.2-insurance Company.

Notice to respondent No.1 was dispensed with. We have

perused the Trial Court records.

8. The learned counsel appearing for the petitioner

submits that the petitioner though working as a teacher in

a Govt. school, he could not perform his duty on account

of injuries sustained in the accident and therefore he had

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taken voluntary retirement. Therefore, he contends that

the petitioner is entitled for compensation under the head

future loss of income. He also submitted that the

compensation awarded under the heads of pain and

suffering, loss of income during laid up period and loss of

amenities is on the lower side and as such the

compensation be reassessed.

9. Per contra, the learned counsel appearing for

the respondent No.2 contends that the Tribunal has

awarded just and reasonable compensation under the all

admissible heads. He submits that the petitioner was not

removed from service on account of disability and

therefore he is not entitled for loss of future income.

Hence, prayed for dismissal of the appeal.

10. The fact that the accident occurred due to the

negligence of the driver of the Cruiser vehicle owned by

respondent No.1 and insured by respondent No.2 is not in

dispute. Though it was contended that there is a delay of

9 days in filing the complaint, it was considered by the

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Tribunal and such delay has been held to be properly and

sufficiently explained by the petitioner and accident cannot

be suspected. Therefore, the question that remains to be

considered is regarding the quantum of the compensation.

11. Though an attempt is made by the learned

counsel for the appellant to demonstrate that the

voluntary retirement of the petitioner on account of injury

sustained, we find no merit in the said submission.

Evidently, the PW3-Dr. Sharanabasappa though states

about the disability, he cannot be a witness to establish

that the disability has resulted in voluntary retirement.

The PW2 is the Head Master, who had issued the salary

certificate of the petitioner as per Exs.P9 & 10. His

evidence also does not show that petitioner was removed

from service on account of the disability suffered by him.

Therefore, it cannot be said that there was any loss of

future income attributable to the injuries sustained by the

petitioner.

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12. Coming to the compensation under the

remaining heads, we find that the compensation under the

head pain and suffering is on the lower side as there were

severe and several head injuries and petitioner had to take

treatment for 71 days as in patient at various hospitals.

Therefore, we enhance the compensation under the head

of Pain & suffering to Rs.65,000/- instead of Rs.55,000/-.

13. The Tribunal has awarded compensation of

Rs.20,000/- under the head of loss of amenities in life.

When the petitioner is disentitled for the compensation

under the head of loss of future income, the Tribunal

should have awarded adequate compensation under this

head. Therefore, we enhance the same to Rs.50,000/-.

14. Thus, the petitioner is entitled for an additional

sum of Rs.40,000/- in addition to the compensation

awarded by the Tribunal. For the aforesaid reasons, the

appeal deserves to be allowed in part. Hence, following

order:

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ORDER

The appeal is allowed in part.

The appellant is entitled for a sum of

Rs.40,000/- in addition to the compensation

awarded by the Tribunal along with interest 6%

per annum from the date of petition till its

realization.