Karnataka High Court

Ashok vs Mahesh And Anr on 3 January, 2023

Bench: J.M.Khazi

                        1      MFA No.201095/2017




       IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 3RD DAY OF JANUARY, 2023

                     BEFORE

       THE HON'BLE MS. JUSTICE J.M.KHAZI

          MFA NO 201095 OF 2017 (MV)

BETWEEN

ASHOK S/O NAGENDRAPPA BABANGOL
AGE: 24 YEARS, OCCUPATION: MANAGER, NOW NIL
R/O VILLAGE JAMBGA(B), TQ. & DIST.KALABURAGI
NOW RESIDING AT VILLAGE ALGOOD
TQ.BASAVAKALYAN, DISTRICT: BIDAR
                                     ...APPELLANT

(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)

AND


1. MAHESH S/O SHIVSHARANAPPA MANE
AGE: MAJOR, OCCUPATION: BUSINESS AND OWNER OF
APE AUTO RICKSHAW BEARING REG NO.KA-39/6521
R/O VILLAGE KALKADIGALLI, ISHWAR NAGAR
BASAVAKALYAN, DISTRICT: BIDAR

2. VIKAS S/O DASHRATH GAIKWAD
AGE:MAJOR, OCCUPATION: BUSINESS AND PREVIOUS
OWNER OF APE AUTO RICKSHAW BEARING REG
NO.KA-39/6521, R/O SASTAPUR, TQ. BASAVAKALYAN
DISTRICT BIDAR
                             2        MFA No.201095/2017




3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.
DR.JAWALI COMPLEX, SUPER MARKET
KALABURAGI - 585101
                                             RESPONDENTS
(SRI SHIVANAND PATIL, ADVOCATE FOR R3;
V/O DT. 13.07.2017, NOTICE TO R1 AND R2 IS
DISPENSED WITH)

   THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO,
MODIFY THE JUDGMENT AND AWARD DATED 27.01.2016
PASSED BY THE II ADDL. DISTRICT AND SESSIONS
COURT    AND    ADDL.    MACT,      BIDAR     SITTING       AT-
BASAVAKALAYN IN M.V.C.NO.65/2015, BY ENHANCING
THE COMPENSATION.


     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This miscellaneous first appeal is filed by

petitioner under Section 173(1) of Motor Vehicles Act

(hereinafter referred to as 'the Act' for short), seeking

enhancement of compensation for the injuries

sustained by him in a road traffic accident dated

29.04.2014.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioner that on

29.04.2014 at about 4-30 p.m., the petitioner and

another were standing near Algood bus stand to go to

their village. At that time, a Ape Auto bearing

registration No.KA-39/6521 (hereinafter referred as

"offending vehicle") driven by its driver in a rash or

negligent manner came and dashed against them. In

the said accident, he sustained grievous injuries

resulting in permanent partial disability. After

conducting detailed investigation, the concerned police

have filed chargesheet against the driver of the

offending vehicle. As the present and previous

owners of the offending vehicle respondent Nos.1 and

2 and as insurer, respondent No.3 are jointly and

severally liable to pay the compensation.

4. Though duly served with notice, respondent

Nos.1 and 2 remained absent and as such, they were

placed ex parte by the Tribunal.

5. Respondent No.3 appeared and filed

written statement contending that accident occurred

due to the negligence of petitioner and another who

without due care and caution rushed to the road. It

has disputed the age, occupation, income of the

petitioner, nature of the injuries sustained by him and

medical expenses incurred for the treatment.

6. Based on the pleadings, the Tribunal has

framed necessary issues.

7. Petitioner got himself examined as P.W.1

and the doctor as P.W.3. The other petitioner has

examined himself as P.W.2. Both petitioners have

relied upon Exs.P.1 to 24.

8. Respondent No.3 has not led any oral and

documentary evidence.

9. Vide the impugned judgment and award,

the Tribunal has partly allowed the claim petition filed

by the petitioner granting compensation in a sum of

Rs.1,96,920/- with interest at 7% per annum. In case

the award is not satisfied within a period of two

months, the Tribunal has directed the respondents to

pay interest at 12% per annum from the date of

default as detailed below:

1) Pain and sufferings Rs.25,000/-

2) Loss of life amenities Rs.10,000/- and pleasure

3) Medical attendant Rs.10,000/-

charges, food and nutrition charges and transportation charges

4) Loss of income during Rs.12,000/- laid up period

5) Loss of future income Rs.97,920/-

   6) Medical expenses            Rs.42,000/-
        Total                     Rs.1,96,920/-

10. During the course of arguments, learned

counsel representing the petitioner submitted that

having regard to the fact that the petitioner has

sustained comminuted tibia platue fracture of right

side and has undergone surgical treatment, the

compensation granted is on the lower side. Though

the doctor has deposed that the disability sustained by

the petitioner is 22%, the Tribunal has erred in taking

it as only 8%. The Tribunal erred in taking the income

of the petitioner as Rs.8,000/- p.m. as against

Rs.18,000/- earned by him. The compensation

granted under the head medical expenses and on

other heads is also on the lower side and prays to

enhance the same.

11. On the other hand, learned counsel for

respondent No.3 submits that having regard to the

fact that the disability of 22% is with regard to the

particular limb, 8% with regard to the whole body

taken by the Tribunal is correct. The compensation

granted on the other heads is also reasonable and

sought for dismissal of the appeal.

12. By filing memo, the learned counsel for the

petitioner got the notice to respondent Nos.1 and 2

dispensed with.

13. Heard learned counsel for the petitioner

and learned counsel for respondent No.3 and perused

the records.

14. Respondent No.2 has not challenged the

impugned judgment and award.

15. Based on the complaint lodged in respect of

the accident, the concerned police have conducted

detailed investigation and filed the chargesheet

against the driver of the offending vehicle. During the

course of his evidence, the petitioner who is examined

as P.W.1 has deposed with regard to the accident and

injuries suffered by him. Taking into consideration the

documents placed on record and the evidence of

P.W.1 and 2, the Tribunal has rightly held that the

accident was occurred due to the rash or negligent

driving by the driver of the offending vehicle.

16. The petitioner has contended that he was

working as Manager in Santosh Transport, Auto Nagar

Gulbarga and earning Rs.18,000/- p.m. However, to

support this, he has not produced any documents.

Therefore, the Tribunal has considered the income of

the petitioner on notional basis at Rs.6,000/- p.m.

Having regard to the fact that the accident is of the

year 2014, based on minimum wages, it would be

reasonable to take the notional income at Rs.7,500/-

p.m. as against Rs.6,000/- taken by the Tribunal.

Though in the claim petition, the petitioner has given

his age as 22 years, based on the medical records, the

Tribunal has considered his age as 30 years and

consequently, 17 multiplier based on Sarla Verma

(smt) & Others vs. Delhi Transport Corporation

& Another1. With these components, it is necessary

to examine whether the compensation granted to the

petitioner is reasonable and adequate or it requires

enhancement under the following heads:

17. Compensation for the laid up period:-

The petitioner has sustained communited tibia platue

fracture of right side and it has resulted in permanent

partial disability of 22% of the said limb. Since it is

the fracture of the bigger of the two bones in the

lower leg, it would be reasonable to expect that the

petitioner was under treatment for a minimum period

of three months. However, the Tribunal has granted

compensation under this head for a period of two

months at the rate of Rs.6,000/-. As already

discussed, the income ought to have been taken at

(2009) 6 SCC 121

Rs.7,500/- p.m. Therefore, at this rate, for a period

of three months, the petitioner is entitled for

compensation in a sum of Rs.22,500/- as against

Rs.12,000/- granted by the Tribunal.

18. Compensation for the physical

disability:- As the disability suffered by the petitioner

in respect of the right lower limb is determined as

22%, so far as whole body is concerned, 1/3rd of it is

to be taken into consideration. Therefore, I hold that

rightly the Tribunal has taken the whole body

disability at 8%. Taking into consideration the age of

the petitioner and the appropriate multiplier 17 and

the income at Rs.7,500/- p.m. the compensation

under the head loss of future prospects is Rs.7,500 x

12 x 17 x 8% = Rs.1,22,400/- as against Rs.97,920/-

granted by the Tribunal.

19. Pain and suffering:- Having regard to the

fact that the petitioner has sustained communited

tibia platue fracture of right side and it has resulted in

disability, grant of compensation in a sum of

Rs.25,000/- under the head pain and suffering is on

the lower side. It would be reasonable to enhance the

same to Rs.40,000/-.

20. Loss of amenities of life:- The Tribunal

has granted compensation of Rs.10,000/- under this

head. However, taking into consideration the fact that

the petitioner has suffered permanent partial

disability, it would be reasonable to enhance the same

to Rs.20,000/-.

21. Medical expenses:- Based on the medical

bills, the Tribunal has rightly granted compensation in

a sum of Rs.42,000/- and it requires no interference.

22. Medical attendant charges, food and

nutrition charges and transportation charges:-

The Tribunal has granted compensation in a sum of

Rs.10,000/- under this head. Having regard to the

fact that the petitioner has suffered fracture, has

undergone surgery and was under treatment for a

long period of three months, it would be reasonable to

enhance to same to Rs.20,000/-.

23. Thus, in all the petitioner is entitled for

total compensation in a sum of Rs.2,66,900/- together

with interest at 6% p.a., as against Rs.1,96,920/-

granted by the Tribunal as detailed below:

Sl.No.          Heads        Amount           Amount
                             awarded by the   awarded by this
                             Tribunal         Court
1.         Compensation      Rs.12,000/-      Rs.22,500/-
           for the laid up
           period
2.         Compensation     Rs.97,920/-       Rs.1,22,400/-
           for the physical
           disability
3.         Pain        and Rs.25,000/-        Rs.40,000/-
           sufferings





4.      Loss of amenities     Rs.10,000/-      Rs.20,000/-
        of life
5.      Medical expenses      Rs.42,000/-      Rs.42,000/-
6.      Medical               Rs.10,000/-      Rs.20,000/-
        attendant
        charges,      food
        and       nutrition
        charges        and
        transportation
        charges
              Total           Rs.1,96,920/-    Rs.2,66,900/-

24. Of course as the insurer of the offending

vehicle, respondent No.3 is liable to pay the enhanced

compensation with accrued interest. Accordingly, I

proceed to pass the following: