Karnataka High Court
Ashok vs Raju And Anr on 27 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 202520 of 2019
C/W MFA No. 200596 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 202520 OF 2019 (MV-I)
C/W
MISCL. FIRST APPEAL NO. 200596 OF 2022
MFA NO. 202520 OF 2019.
BETWEEN:
SEENABAI W/O SHYAMU RATHOD,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: ANAKERI, LT NO. 3,
TQ. & DIST. VIJAYAPUR-586101.
...APPELLANT
(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)
AND:
Digitally signed
by LUCYGRACE 1. RAJU S/O DAMALU RATHOD,
Location: HIGH AGE: 28 YEARS, OCC: AGRICULTURE,
COURT OF R/O: TORAVI, ATHANI ROAD,
KARNATAKA
DIST. VIJAYAPUR-586101.
2. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
1ST FLOOR, BIDARI COMPLEX, S.S. FRONT ROAD,
VIJAYAPUR-586101.
...RESPONDENTS
(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
V/O DTD. 29.03.2023 NOTICE TO R1 DISPENSED WITH)
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MFA No. 202520 of 2019
C/W MFA No. 200596 of 2022
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, MODIFY THE JUDGMENT AND
AWARD PASSED BY THE COURT OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND MACT NO. VI, AT-VIJAYAPUR IN MVC
NO.1171/2015 DATED-15.05.2018 AND BE PLEASED TO ALLOW
THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED
FAR BY THE APPELLANT.
IN MFA NO. 200596 OF 2022.
BETWEEN:
ASHOK
S/O DAMULU JADHAV,
AGE: 38 YEARS, OCC: GOUNDI WORK,
R/O TORAVI,
TQ. AND DIST. VIJAYAPUR.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. RAJU
S/O DAMALU RATHOD,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O TORAVI ATHANI ROAD,
VIJAYAPURA.
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, BIDARI COMPLEX, S.S. FRONT ROAD,
VIJAYAPUR.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR R2;
VIDE ORDER DATED 23.03.2022 NOTICE TO R1
IS DISPENSES WITH)
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MFA No. 202520 of 2019
C/W MFA No. 200596 of 2022
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, ALLOW THE APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 15.05.2018
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND
MACT-VI, VIJAYPUR IN MVC NO.1480/2015 AND
CONSEQUENTLY BE PLEASED TO ENHANCE THE
COMPENSATION FROM RS.87,300/- TO RS.8,50,000/- WITH
INTEREST AT 12% PER ANNUM FROM THE DATE OF PETITION
TILL ACTUAL REALIZATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the claimants being
aggrieved by the common judgment and award dated
15.05.2018 passed in MVC No.1171/2015 and MVC
No.1480/15 on the file of I Additional Senior Judge, MACT
VI, Vijayapur District (hereinafter referred to as the
'Tribunal' for short) by which the Tribunal has awarded
compensation of Rs.3,81,783/- and Rs.87,300/-
respectively.
2. The brief facts of the case are that on 05.08.2013
at about 10.00 a.m., claimant namely Sri. Ashok was
sitting on the motor cycle bearing registration No.KA-28-
EG-2024 as a pillion rider, being ridden by its rider in a
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rash and negligent manner. When they came near Kidney
Foundation Hospital, Vijayapura located on Solapur road
the rider of the motor cycle dashed against the pedestrian
namely Smt. Seenabai, the claimant in M.V.C.No.
1171/2015, thereby causing injuries to the pillion rider
Sri.Ashok and the said pedestrian Smt. Seenabai. There
upon, claim petitions were filed in M.V.C.No. 1171/2015
by Smt. Seenabai (appellant in M.F.A.No.202520/2022)
and MVC No.1480/15 by Sri. Ashok (appellant in M.F.A.
No. 200596/2022) seeking compensation of
Rs.15,00,000/- and Rs.8,00,000/- respectively. Smt.
Seenabai claim to have been working as agriculturist
earning Rs.10,000/- per month while Sri. Ashok claim to
have been doing goundi work earning Rs.10,000/- per
month. The respondent No.1 did not appear before the
Court and was placed ex-parte in both the cases. The
respondent No.2-Insurance Company appeared before the
Court and has filed statement of objection denying the
claim petition averments and disputing the mode and
manner of the accident, seeking dismissal of the same.
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3. Tribunal framed the issues and recorded evidence.
Both the claimants examined themselves as PW-1 and PW-
2 and two doctors have been examined as PW-3 and PW-4
respectively. The tribunal after assessing the evidence
held that the accident in question had occurred on account
of rash and negligent riding of the motor cycle by its rider
and consequently awarded compensations of
Rs.3,81,783/- in respect of claim made by Smt. Seenabai
and Rs.87,300/- in respect of claim made by Sri. Ashok
respectively.
4. Being aggrieved by the same the claimants are
before this Court.
5. Sri. Sanganabasava B. Patil, learned counsel for the
appellant- Smt.Seenabai contended that she had suffered
fractures on both the legs and also on the left hand. The
treated doctor PW-4 had assessed the disability at 20% to
the upper limbs and 30% to the lower limbs. He submits
that the claimant was earning Rs.10,000/- p.m. from the
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agricultural work, and due to the accident, she has been
rendered disabled and her earning has drastically reduced.
He submits that, she has undergone operations on two
occasions that the Tribunal without appreciating the
evidence has assessed the disability at 20% and has also
not awarded the compensations under heads adequately.
Hence, seeks for enhancement.
6. Sri. Sanganagouda V Biradar, learned counsel for
the appellant-Sri.Ashok submits that, the appellant was
earning Rs.10,000/- p.m. from goundi work and he has
sustained injuries to his left hand and disability assessed
by treated doctor PW-3 is at 10%-15% and the Tribunal
has assessed the disability at 5%. He submits that the
nature of the work being carried on by the appellant-
Sri.Ashok being a goundi worker has been drastically
affected by the injuries sustained by him, as such
disability ought to have been assessed on the higher side.
He submits that the grant of compensations under other
heads is also on the lower side.
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7. Sri. Sanjay M. Joshi, learned counsel for the
respondent-Insurance Company in both the appeals
submits that the tribunal taking into consideration of the
material evidence placed on record has rightly assessed
the disability and the income of the appellants in just and
proper manner warranting no interference. He submits
that no grounds are made out for enhancement. Hence,
seeks for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the records.
IN M.F.A No.202520/2019:
9. Accident in question resulting in injuries to the
appellant is not in dispute. As per wound certificate Ex-P4
the Appellant/claimant stated to have sustained fractures on
right tibia and fibula, fracture on left tibia and fibula and
other injuries in the body
10. PW-4 Dr. S.P.Malve has treated the claimant has
deposed that the claimant was admitted in his hospital
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between 05.08.2015 and 05.10.2015 and she was
operated thrice and she was discharged on 24.08.2015
and 06.10.2015 respectively. He has also deposed that
the claimant is having restriction of right knee flexion
beyond 90 degree and he has also deposed that she has a
problem in squatting and sitting and has thus assessed the
physical disability of 20% to the upper limbs and 30% to
the lower limbs. He has also reiterated the contents of
disability certificate produced at EX-P15. Though the said
witness has been cross-examined, nothing has been
elicited to discredit this evidence. The tribunal has
assessed the disability of the claimant at 20% to the whole
body. Considering the nature of work being the
agricultural activity that was carried down by the claimant
and also her age being assessed at 42 years and in the
light of the evidence given by the Doctor PW-4, the
assessment of disability at 20% appears to be on the
lower side. This Court is of the considered view in the fact
and circumstance of the case and in view of she having
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suffered fractures on both the legs and to her left hand,
assessment of disability at 30% will be justified.
11. Though it is contended that the claimant was
earning Rs.10,000/- from her agricultural activities, no
documents have been produced with regard to the income
of the claimant. In the absence of any evidence, taking
into consideration the guidelines issued by the Karnataka
State Legal Services Authority for the purposes of
determination of notional income, since the accident is of
the year 2015, the notional income of the claimant is
assessed at Rs.8,000/- per month. Since the age of the
claimant was 38 years at the time of accident, multiplier of
15 is applied. Calculated as above i.e., Rs.8,000 x 12 x 15
x 30%, the claimant would be entitled for a sum of
Rs.4,32,000/- towards loss of future income.
12. The Tribunal has awarded a sum of Rs.25,000/-
towards pain and suffering. This Court is of considered
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view that an addition of Rs.25,000/- be made making it
Rs.50,000/- towards pain and suffering.
13. Medical expenses of Rs.1,14,783/- awarded to
the claimant is maintained as it is.
14. The Tribunal has awarded a sum of Rs.3,000/-
towards loss of earning in the laid up period. Considering
nature of injuries sustained by claimant, she might have
been advised rest for about three months. Therefore, loss
of income during the laid period of treatment is to be
Rs.24,000/- (Rs.8,000 x 3) instead of Rs.3,000/- awarded
by the Tribunal.
15. The Tribunal has awarded a sum of Rs.20,000/-
towards loss of amenities and future unhappiness. The
same is enhanced by adding Rs.30,000/-, making it
Rs.50,000/-.
16. The Tribunal has awarded a sum of Rs.3,000/-
towards attendant, diet, conveyance and others. The same
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is enhanced by adding Rs.27,000/-, making it Rs.30,000/-
considering the fact that the claimant has undergone
surgeries and was admitted in the hospital on three
occasions.
17. Thus, the claimant is held entitled for a total
compensation of Rs.7,00,783/- instead of Rs.3,81,783/-
awarded by the Tribunal as under:
Sl. Heads By By
No. Tribunal this Court
1 Loss of future Rs.2,16,000/- Rs.4,32,000/-
earning
2 Towards pain and Rs.25,000/- Rs.50,000/-
suffering
3 Toward loss of Rs.20,000/- Rs.50,000/-
amenities
4 Towards attendant, Rs.3,000/- Rs.30,000/-
nourishment and
conveyance
5 Medical expenses Rs.1,14,783/- Rs.1,14,783/-
/Bill
6 Loss of income Rs.3,000/- Rs.24,000/-
during period of
treatment
Total Rs.3,81,783/- Rs.7,00,783/-
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M.F.A No.200596/2022 (MVC NO.1480/2015)
18. As per Ex-P12-Wound certificate the
Appellant/claimant stated to have sustained fracture to
radial head, fracture in left elbow and other injuries in the
body. PW-3-Dr.S.S.Naganand, the treating doctor in his
evidence has stated that the claimant was admitted in the
hospital from 06.08.2015 to 24.08.2015 and that he has
suffered 10% to 15% disabilities to the upper limbs and he
has also reiterated the contents of disability certificate.
The tribunal has assessed the disability of the claimant at
5% to the whole body. Considering the nature of
occupation being carried on by claimant/appellant as
goundi, the assessment of disability at 5% appears to be
on the lower side. This Court is of the consider view that
7% of the disability in the fact and circumstance of the
case will be justified.
19. Though it is claimed that the claimant was
earning Rs.10,000/- per month from his goundi work, no
documentary evidence has been produced. This Court in
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the absence of any documentary evidence regarding
income has taken into consideration the guidelines issued
by the Karnataka State Legal Services Authority, wherein
the notional income of the victims of the road traffic
accident for the year 2015 is determined at Rs.8,000/- per
month. The same is taken in this case as well. Since the
age of the claimant was 20 years at the time of accident,
multiplier of 18 is applied. Calculated as above, the
appellant is entitled for a sum of Rs.1,20,960/- (Rs.8,000
x 12 x 7% x 18) towards loss of future income.
20. The Tribunal has awarded a sum of Rs.10,000/-
towards pain and suffering. The same is enhanced to
Rs.20,000/- by adding Rs.10,000/-.
21. The Tribunal has awarded a sum of Rs.1,500/-
towards medical expenses. The same is maintained as
it is.
22. The Tribunal has awarded a sum of Rs.3,000/-
towards loss of earning during laid up period. Considering
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the nature of injuries sustained by the claimant, he might
have been advised rest for about three months.
Therefore, considering the income at Rs.8,000/- per
month, loss of income during laid up period is to be
Rs.24,000/- (Rs.8,000 x 3) instead of Rs.3,000/- awarded
by the Tribunal.
23. The Tribunal has awarded a sum of Rs.5,000/-
towards loss of amenities and future unhappiness. The
same is enhanced to Rs.15,000/- by adding Rs.10,000/-.
24. The Tribunal has awarded a sum of Rs.3,000/-
towards attendant, diet, conveyance and other charges,
which is enhanced to Rs.15,000/- by adding Rs.12,000/-.
25. Thus, the appellant is held entitled for a total
compensation of Rs.1,96,460/- instead of Rs.87,300/-
awarded by the Tribunal as under:
Sl. Heads By By
No. Tribunal this Court
1 Loss of future Rs.64,800/- Rs.1,20,960/-
earning
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2 Medical expenses Rs.1,500/- Rs.1,500/-
3 Pain and suffering Rs.10,000/- Rs.20,000/-
4 Loss of amenities Rs.5,000/- Rs.15,000/-
and future
unhappiness
5 Attendant, diet, Rs.3,000/- Rs.15,000/-
conveyance and
other charges
6 Loss of earning Rs.3,000/- Rs.24,000/-
during laid up
period
Total Rs.87,300/- Rs.1,96,460/-
26. For the foregoing reasons, following:
ORDER
a) Both the appeals are partly allowed.
b) The appellant in MFA No.202520/2019 -
claimant is held entitled for a total
compensation of Rs.7,00,783/- instead of
Rs.3,81,783/- awarded by the Tribunal with
interest at 6% per annum from the date of
claim petition till realization. However, the
appellant is not entitled to interest for the
delayed period of 484 days in filing the appeal.
c) The appellant in MFA No.200596/2022 -
claimant is held entitled for a total
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compensation of Rs.1,96,460/- instead of
Rs.87,300/- awarded by the Tribunal with
interest at 6% per annum from the date of
claim petition till realization. However, the
appellant is not entitled to interest for the
delayed period of 655 days in filing the appeal.
d) Respondent No.2 - Insurance Company shall
deposit the aforesaid compensation amount
within a period six weeks from the date of
receipt of certified copy of this judgment.
e) The award of the Tribunal is modified
accordingly.
f) Sri. Sanjay M. Joshi, learned counsel is
permitted to file vakalath for respondent No.2
in MFA No.202520/2019 within two weeks.
Sd/-
JUDGE
RL, LG
