Karnataka High Court
The Divisional Manager vs Hanmanth And Anr on 6 December, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
-1-
NC: 2023:KHC-K:9037
MFA No. 202019 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6 TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.202019 OF 2019 (MV-I)
BETWEEN:
THE DIVISIONAL MANAGER,
CHOLAMANDALAM MS GEN. INS. CO. LTD.,
KALBURGI SQUARE (BUILDING) DESAI CROSS,
DESHPANDE NAGAR HUBLI-29,
NOW REPRESENTED BY
CHOLA MS GEN. INSURANCE COMPANY LIMITED,
THROUGH AUTHORISED SIGNATORY,
UNIT NO.4, 9TH FLOOR, LEVEL-06,
GOLDEN HEIGHTS COMPLEX,
59TH 'C' CROSS, INDUSTRIAL SUBURB,
RAJAJI NAGAR, 4TH MAIN,
BENGALURU-560 010.
Digitally signed
by LUCYGRACE ...APPELLANT
Location: HIGH
COURT OF (BY SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE)
KARNATAKA
AND:
1. HANMANTH
S/O NINGAPPA GOGEBAL,
AGE: 41 YEARS,
OCC: AGRICULTURE & COOLIE,
R/O KUPPI CROSS, TQ. HUNASAGI,
DIST. YADGIR-585 401.
2. VIJAY REDDY
S/O GOUDAPPAGOUD PATIL,
-2-
NC: 2023:KHC-K:9037
MFA No. 202019 of 2019
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O YEVOOR, TQ. SHAHAPUR,
DIST. YADGIR-585 401.
...RESPONDENTS
(SRI. SHARANAGOUDA V. PATIL, ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 16 TH DAY OF APRIL, 2019 PASSED BY THE
SENIOR CIVIL JUDGE AND ADDITIONAL MACT AT SHORAPUR
IN MVC NO.262/2018.
THIS APPEAL COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the Insurance Company being
aggrieved by the judgment and award dated 16.04.2019
passed in MVC No.262/2018 on the file of Senior Civil
Judge and Additional MACT at Shahapur (for short
'Tribunal'), by which, the Tribunal while partly allowing the
claim petition of the claimant has awarded compensation
of Rs.6,73,000/- with interest at 6% p.a. from the date of
petition till realiastion, directing respondent No.2 -
Insurance Company therein to pay the compensation.
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2. Brief facts of the case are that, on 04.03.2018
at about 6.30 p.m., claimant was proceeding towards
Kuppi cross from Hunasagi along with one Ningappa on a
motorcycle bearing Reg. No.KA-33/L-7235 and when they
reached near Kanakadas Chowk, a tipper lorry bearing
Reg. No.KA-33/A-5925 driven by its driver in a rash and
negligent manner came from the opposite direction and
dashed against the motorcycle, due to which the claimant
fell down and sustained injuries in the nature of fracture to
his head, wound over right patella and wound over his
right ear. That, he was admitted in B.M. Patil Medical
College, Vijayapur and thereafter shifted to Vasudev
Hospital for higher treatment and he undergone operation
spending huge amount towards his treatment. That,
before the accident, he was hale and healthy, earning
Rs.2,00,000/- per annum from his agriculture work and he
was holding land of 4 Acres. The accident has caused
disability reducing his earning ability. Hence, he filed claim
petition seeking compensation of Rs.23,00,000/-.
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3. In response to the notice issued by the tribunal,
objections statements were filed by respondent Nos.1
and 2, denying the mode and manner of accident and also
contending that the accident had occurred on account of
rash and negligent riding of the motorcycle, owner of
which was not made party to the proceedings.
4. Based on the pleadings, the Tribunal framed
issues and recorded the evidence. The claimant examined
himself as PW.1 and one Dr. Rajendra Kothari as PW.2 and
exhibited 9 documents as Exs.P1 to P9. One witness has
been examined on behalf of the respondents as RW.1 and
exhibited two documents as Exs.R1 and R2.
5. On appreciation of the evidence, the Tribunal
arrived at a conclusion that the accident in question has
occurred on account of rash and negligent driving of the
offending tipper by its driver and assessed the
compensation payable to the claimant in a sum of
Rs.6,73,000/- with interest at 6% p.a. Being aggrieved by
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the quantification of the compensation, the Insurance
Company is before this Court.
6. Sri Manjunath Mallayya Shetty, learned counsel
appearing for the appellant - Insurance Company taking
the Court through the reasoning assigned by the Tribunal
and the documents produced by the claimant, submits
that though the claimant claimed to have suffered injuries
in the nature of fracture to his head, no medical records
supporting the fracture are produced. He submits that the
assessment of disability by the Tribunal at 26% is without
any basis, as PW.2-Doctor, who had assessed the
disability at 35%, in the cross-examination had admitted
that he is not the expert in the field of Neuro Science and
that he had not treated the claimant. Thus, learned
counsel submits that without there being any acceptable
evidence on record, the Tribunal has assessed the
disability at 26%, which is exorbitant. He also refers to
the medical bills and submits that the Tribunal without
looking to the contents of Ex.P8 has granted Rs.3,44,128/-
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towards reimbursement of the medical expenses. Thus, he
submits that there is complete lack of appreciation of
material evidence by the Tribunal warranting interference.
7. Per contra, Sri Sharanagouda V. Patil, learned
counsel appearing for respondent No.1 - claimant submits
that the claimant has suffered severe head injury which
emanating from Ex.P5 - discharge card issued by Vasudev
Hospital. He also submits that the Tribunal, appreciating
the material evidence, more particularly, the evidence of
PW.2 has assessed the disability at 26% and the same
cannot be found fault with. He further points out that
though the claimant has not filed any appeal, he is entitled
for the just compensation. In that, he submits that the
Tribunal has taken the notional income at Rs.6,000/- per
month, which is grossly inadequate, considering the year
of accident being of 2018. He submits that the
compensation awarded by the Tribunal though inadequate,
the equities has to be made in favour of the claimant.
Hence, seeks for dismissal of the appeal.
NC: 2023:KHC-K:9037
8. Heard the learned counsel for the parties and
perused the records.
9. The Hon'ble Apex Court in the case of Ramla
and Others vs. National Insurance Company Limited
and Others reported in (2019) 2 SCC 192 has held that
the just compensation is the one, what the victims are
entitled to, based on the evidence on record. The Courts
are duty bond to award just compensation.
10. Though there appears to be considerable force
in the submission being made by the learned counsel for
the appellant - Insurance Company that assessment of
disability of 26% by the Tribunal as against the
assessment of disability of 35% to the whole body by
PW.2 may require interference, in view of the fact that the
Tribunal has taken notional income of the claimant at
Rs.6,000/- per month, this Court is of the considered view
that the assessment of notional income by the Tribunal is
grossly inadequate. This Court in the absence of any
NC: 2023:KHC-K:9037
material evidence, takes into consideration the chart
prepared by the Karnataka Legal Services Authority, in
terms of which, notional income of the victims of the road
traffic accident of the year 2018 is determined at
Rs.11,750/- per month. Whereas, the Tribunal has
assessed the notional income of the claimant at Rs.6,000/-
per month, which is half of the notional income
determined by the KSLSA. In that view of the matter, even
if as contended by the appellant - Insurance Company the
disability assessed by the doctor at 35% is reduced to
18% (which is half of the disability assessed), the claimant
would still be entitled for more than what the Tribunal has
awarded. Therefore, though the Insurance company has
made out a case for interference to the extent of reducing
the disability, in view of the gross inadequate assessment
of notional income by the Tribunal at Rs.6,000/- per
month, which at least could have been at Rs.11,750/-, this
Court declines to reduce the compensation awarded by the
Tribunal on that count. The same reasoning would apply
even in the case of grant of Rs.3,44,128/- towards
NC: 2023:KHC-K:9037
reimbursement of medical expenses and the compensation
awarded under other heads.
11. It is necessary to see that respondent No.1 -
claimant was admitted as an inpatient for a period of 08
days and considering the nature of head injury, he must
have been advised rest for about three months. The
Tribunal has awarded a meager sum of Rs.4,000/- towards
loss of income during laid up period. The general standard
is, awarding of the compensation of three months notional
income in the case of severe injuries. Even calculating on
that count, the amount awarded towards the
reimbursement of medical expenses and the inadequate
compensation awarded under the other heads would stand
squared of.
12. Respondent No.1/claimant has also not been
awarded loss of amenities. Though no appeal is filed by
the claimant, for the aforesaid reasons, in view of the
- 10 -
NC: 2023:KHC-K:9037
Tribunal having assessed the disability at 26% and having
awarded reimbursement of medical expenses at
Rs.3,44,128/-, this Court does not see any reason to
interfere and reduce the compensation awarded by the
Tribunal, as the same would meet requirement of
awarding just compensation.
13. In that view of the matter, the appeal is
disposed of confirming the compensation awarded by the
Tribunal. The amount in deposit, if any, be transmitted to
the Tribunal.
Sd/-
JUDGE
LG
