Karnataka High Court
Yallappa Basappa Talawar vs Narayan Shivaji @ Shivappa Tolagi on 24 November, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 100701 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100701 OF 2020 (MV-I)
BETWEEN:
YALLAPPA BASAPPA TALAWAR,
AGE: 42 YEARS, OCC: AGRICULTURE & MASON,
NOW NIL, R/O: JAKKANAIKANKOPPA-591102,
TQ: BAILHONGAL.
... APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. NARAYAN SHIVAJI @ SHIVAPPA TOLAGI,
AGE: MAJOR, OCC: BUSINESS, R/O: H. NO.138,
AT: POST: K.K.KOPPA-590020,
TQ: DIST: BELAGAVI.
2. SHRIRAM GENERAL INSURANCE CO. LTD.,
SHIVAKUMAR R/BY ITS DIVISIONAL MANAGER,
HIREMATH E.8, RICO INDUSTRIAL AREA,
SITAPUR, JAIPUR, RAJASTHAN STATE-302302.
Digitally signed ... RESPONDENTS
by SHIVAKUMAR
HIREMATH (BY R1 SERVED; SRI. SURESH S. GUNDI, ADVOCATE FOR RF2)
Date: 2023.12.05
11:04:36 +0530 THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 02.07.2018
PASSED IN MVC NO.1928/2015 ON THE FILE OF THE IX ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:
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MFA No. 100701 of 2020
JUDGMENT
This appeal is filed by the injured claimant seeking
enhancement of the compensation being aggrieved by the
judgment and award dated 02.07.2018 passed in MVC
No.1928/2015 by the IX Addl. District and Sessions Judge
and Addl. MACT, Belagavi (hereinafter referred to as 'the
Tribunal').
2. Brief facts giving rise to filing of this appeal are
on 22.01.2015, the claimant was proceeding on a
motorcycle bearing No.KA-22/EL-5405 along with his
relative who was riding the said motorcycle. It is averred
that the rider of the motorcycle was riding the motorcycle
in a rash and negligent manner, lost control over the same
and made the claimant to fall down and resulted in
causing injuries to him. It is further averred that the
claimant was treated as inpatient in different hospitals and
spent Rs.10,00,000/- for the treatment. Hence, the
claimant has filed a claim petition seeking compensation.
It is averred that the claimant was aged 37 years, doing
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agricultural activities and earning a sum of Rs.5,00,000/-
per annum. It is further averred that due to the accidental
injuries, the claimant has sustained permanent physical
disability and the respondents No.1 and 2 being the owner
and insurer of the motorcycle, are liable to pay the
compensation.
3. The respondents filed separate objections
denying the averments made in the claim petition. It was
contended that the compensation amount claimed is
exorbitant. It was further contended that the respondent
No.2 is the insurer and the liability, if any, be saddled on
the respondent No.2 to pay the compensation.
4. Respondent No.2 contended that there is delay
of 2 days in lodging the complaint and the claimant has
not sustained injuries in the accident. It is further
contended that the motorcycle has been falsely implicated
in the accident colluding with respondent No.1 and the
police. It is also contended that the rider of the
motorcycle was not possessing valid and effective driving
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licence as on the date of accident and sought for dismissal
of the claim petition.
5. The Tribunal framed issues and recorded the
evidence of parties. The appellant examined himself as
PW-1 and examined Dr. S.H. Motimath as PW-2 and got
marked Exs.P-1 to P-16. The respondents have not
examined any witness, with consent marked insurance
policy as Ex.R-1. The Tribunal based on the material
available on record, partly allowed the claim petition and
has awarded compensation of Rs.14,48,978/- with interest
at 6% p.a. from the date of petition.
6. Learned counsel Sri Harish Maigur appearing for
the appellant submits that the appellant injured has
sustained grievous injuries in the road accident and
suffered 100% disability. It is submitted that the
appellant was carrying agricultural activities and is having
13 acres of irrigated land and used to grow commercial
crops and earn income to the tune of Rs.5,00,000/- p.a.
The entire income used to contribute to the family by
appellant and in view of the accident, the income arising
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from the agriculture has substantially reduced. Hence, the
Tribunal erroneously assessed the income of the appellant
at Rs.7,500/- p.m.
7. It is submitted that the appellant has examined
Dr. S.H. Motimath as PW-2 who has issued the disability
certificate has opined that the appellant has suffered
100% disability due to the accident. However, the
Tribunal erroneously assessed the disability of the
appellant at 80%. It is further submitted that the Tribunal
has not awarded any compensation for loss of future
prospects of the appellant and award of compensation
under other heads is on lower side. He seeks to allow the
appeal by enhancing the compensation.
8. Per contra, learned counsel Sri Suresh S. Gundi
appearing for respondent No.2 supports the impugned
judgment and award and submits that the Tribunal has
justified in assessing the income of the appellant as the
agriculture land is standing in the name of the appellant's
father. It is submitted that the Tribunal has assigned
proper reasons while considering the disability which does
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not call for any interference in the appeal. It is further
submitted that in the case of injury, award of any
compensation under the head loss of future prospects
would not arise and award of compensation on other
heads is also just and proper does not call for any
enhancement in the present appeal. He seeks to dismiss
the appeal.
9. Having heard the learned counsel for parties,
perused the memorandum of appeal and Tribunal records.
The point that arises for consideration in this appeal is:
"Whether the appellant/claimant is entitled
for the enhanced compensation?"
10. The point is answered in the affirmative for the
following reasons:
(a) It is not in dispute that in the road accident
dated 22.01.2015, the appellant suffered injuries and he
was inpatient for 43 days in different hospitals. The
appellant claimed that he was carrying out the agriculture
activities and growing commercial crops in 13 acres of
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irrigated land and was getting income of Rs.5,00,000/- per
annum. To substantiate the income, the appellant has
produced Ex.P-16 RTC extracts, the said RTC extracts
stand in the name of father of the appellant the said
revenue records indicate that the appellant used to grow
commercial crops and admittedly the appellant was 37
years on the date of accident and was carrying out
agricultural activities prior to the accident. The appellant's
father's name being reflected in the RTC by itself cannot
be a ground to come to the conclusion that the entire land
belongs to the father of the appellant injured and the
appellant has no contributed to the income to the family.
Admittedly, the respondents have not placed any evidence
before the Court to disprove the claim of the appellant.
Taking note of the nature of land, extent of the land and
nature of the crops grown in the land by the appellant, this
Court is the considered view the Tribunal has not justified
in assessing the income of the appellant at Rs.7,500/-
p.m. Taking into account the aforesaid facts and evidence
on record, and the contribution made by the appellant
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injured prior to the accident to the family, this Court is of
the considered view that it would be just and appropriate
to assess the income of the appellant at Rs.10,000/- p.m.
(b) The Tribunal has assessed the disability
suffered by the claimant at 80%. On close scrutiny of the
evidence on record, more particularly, Ex.P-6 wound
certificate, which indicates the following injuries and
disability:
Swelling, tenderness over lower neck, neck
movements painful and restricted, complete
paraperesis of both upper and lower limbs.
Keeping in mind the wound certificate and the oral
testimony of Dr.S.H. Motimath PW-2, this Court is the
considered view that the Tribunal has not properly
appreciated the medical evidence on record in assessing
the disability. PW-2 has deposed that the claimant has
got permanent physical disability to the extent of 100% to
the whole body. The relevant deposition of PW-2 are
extracted herein below:
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"2] I have been working as Orthopaedic Surgeon in
Motimath Hospital, 37 Sangameshwar Nagar, Belagavi.
My Registration number is 19650. I have examined the
Petitioner Shri. Yallappa Basappa Talawar aged about 39
years of Jakanayakankop on 22-5-2017 for the
alleument of permanent physical disability for the
injuries sustained by him in the road traffic accident
occurred on 22-1-2015, pillion rider on the two wheeler
fell down on the road and A sustained sustained injury
to cervical spine C3, C4 whiplash injury. Operated in
Lakeview Hospital on 30-3-15. A C D F with iliac crul
graft done. Cervical disc protruding with spinal cord
injury at C3, C4 level.
3] History of present complaint: Weakness of both
upper limbs and lower limbs. Not able to to understand
any sensation about urinary bladder and bowels polling
motions G stool(s). Not able to do any day today
activities.
4] On examination A 2" scar over right side of neck.
Complete weakness of both lower limbs and parietal
weakness of both the upper limbs urinary catheter
present in bladder. Not able to sit or stand. The
permanent physical disability of whole body is 100%
(One hundred percent)"
On bare perusal of the oral testimony of PW-2,
disability certificate and other medical evidence on record
clearly demonstrates that the movement of the appellant
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is restricted and the appellant is unable to do his routine
activities. Keeping in mind the evidence on record, this
Court is the considered view that it would be just and
appropriate to assess the permanent disability of the
appellant at 90% as against 80% considered by the
Tribunal.
This Court on appreciation of the oral testimony of
PW-2 and medical evidence on record, it is evident that
the appellant injured has lost mobility and suffered
permanent disability due to the road accident in question
and he is unable to carry out any activities to earn his
livelihood and he would not be in a position to contribute
any income to the family. Keeping in mind the nature of
disability suffered by the appellant injured and keeping in
mind the enunciation of law laid down by the Hon'ble
Supreme Court in the case of Hemaraj Vs. Oriental
Insurance Co. Ltd.1, and keeping in mind the permanent
disability of the appellant is assessed at 90%. It would be
2018 ACJ 5
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just and appropriate to add 50% to the assessed income
of the appellant for determining the compensation for loss
of future prospects of the appellant.
Rs.10,000 + 5,000 (50% fo Rs.10,000/-) = 15,000/-
Rs.15,000 x 12 x 15 x 90% =24,30,000/-
(c) The Tribunal has awarded a sum of
Rs.1,00,000/- under the head pain and suffering, a sum of
Rs.25,000/- towards food, transportation and attendant
charges, a sum of Rs.75,000/- is awarded towards loss of
amenities. The award of compensation on the aforesaid
heads by the Tribunal is on the lower side. Keeping in
mind the nature of injuries suffered by the appellant and
the appellant was inpatient for a period of 43 days in 2
different hospitals and has undergone major surgery by
inserting implants in the body and keeping in mind the
disability assessed by PW-2, this Court is of the considered
view that the appellant is entitled additional Rs.25,000/-
under the head pain and suffering, additional Rs.25,000/-
under the head food and nourishment, transportation and
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attendant charges, additional Rs.25,000/- under the head
loss of amenities. The appellant was inpatient for a period
of 43 days and thereafter he has continued to take follow
up treatment. Keeping in mind these aspects it would be
just and proper to award Rs.25,000/- towards loss of
income during laid up period.
11. The appellant is entitled for the following
modified compensation with interest at the rate of 6%:
1 Pain and sufferings Rs.1,25,000/-
2 Loss of amenities Rs.1,00,000/-
3 Conveyance charges, attendant Rs.50,000/-
charges, food and nourishment
charges
4 Medical bills Rs.1,43,978/-
5 Loss of income during laid up period Rs.25,000/-
6 Loss of earning capacity Rs.24,30,000/-
7 Future medical expenses Rs.25,000/-
Total Rs.28,98,978/-
Compensation awarded by the Rs.14,48,978/-
tribunal
Enhanced compensation Rs.14,50,000/-
10. Thus, the claimant would be entitled to total
compensation of Rs.28,98,978/- as against
Rs.14,48,978/- awarded by the Tribunal with interest at
6% p.a. from the date of petition till realisation.
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However, the claimant is not entitled for the interest for
498 days being the delay in filing the appeal vide order
dated 26.06.2023.
11. Hence, we pass the following order.
ORDER
i. The appeal is allowed in part.
ii. The judgment and award dated 02.07.2018
passed in MVC No.1928/2015 by the IX
Addl. District and Sessions Judge and Addl.
MACT, Belagavi, is modified and the
appellant/claimant would be entitled to
total compensation of Rs.28,98,978/- as
against Rs.14,48,978/- awarded by the
Tribunal.
iii. The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till date of
payment excluding the interest for 498
days being the delay in filing the appeal.
iv. Respondent/insurance company shall
deposit the enhanced compensation
amount along with accrued interest before
the Tribunal within a period of six weeks
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from the date of receipt of certified copy of
this judgment.
v. Registry to transmit the records to the
Tribunal forthwith.
vi. Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
NAA
CT:BCK
