Karnataka High Court
Sachin S/O Dilip Dhare vs Pavan S/O Babasaheb Patiland Anr on 18 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 200675 of 2021
C/W MFA No. 200676 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO. 200675 OF 2021 (MV-I)
C/W
MISCL. FIRST APPEAL NO. 200676 OF 2021
M.F.A NO.200675 OF 2021
BETWEEN:
VISHAL,
S/O. ASHOK DHARE,
AGE: 25 YEARS,
OCC: AGRI. STUDENT,
MILK VENDER AND PAPER VENDOR (NOW NIL),
Digitally signed R/O. RAJAJI NAGAR,
by VARSHA N
RASALKAR VIJAYAPURA - 586 101.
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MR. PAVAN,
S/O. BABASAHEB PATIL,
AGE: 44 YEARS,
OCC. BUSINESS,
R/O, A/P: PIMPALKHUTE, TQ. MADHA,
DIST: SOLAPUR,
MAHARASHTRA STATE - 413 000.
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MFA No. 200675 of 2021
C/W MFA No. 200676 of 2021
2. THE BRANCH MANAGER,
THE BHARATI AXA GENERAL INSURANCE CO. LTD.,
1ST FLOOR, FERAN ICON, SURVEY NO.28,
AKME BALLET DODDANEKUNDI,
OPPOSITE OUTER,
RING ROAD, BENGALORE - 560 037.
...RESPONDENTS
(BY SRI. MANJUNATH MALLAYYA SHETTY, ADVT. FOR R2;
V/O DATED: 09.03.2022 NOTICE TO R1 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO ENHANCE THE COMPENSATION
AMOUNT PAYABLE TO THE APPELLANT BY SUITABLY
MODIFYING THE JUDGMENT AND AWARD 01.10.2019 PASSED
BY III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPUR IN MVC
NO.1205/2016, IN THE INTEREST OF JUSTICE AND EQUITY.
M.F.A NO.200676 OF 2021
BETWEEN:
SACHIN,
S/O. DILIP DHARE,
AGE: 26 YEARS,
OCC: AGRI. STUDENT, MILK VENDER
AND PAPER VENDOR (NOW NIL),
R/O. RAJAJI NAGAR,
VIJAYAPURA - 586 101.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MR. PAVAN,
S/O. BABASAHEB PATIL,
AGE: 40 YEARS,
OCC. BUSINESS,
R/O, A/P: PIMPALKHUTE,
TQ: MADHA, DIST: SOLAPUR,
MAHARASHTRA STATE - 413 000.
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MFA No. 200675 of 2021
C/W MFA No. 200676 of 2021
2. THE BRANCH MANAGER,
THE BHARATI AXA GENERAL
INSURANCE CO. LTD.,
1ST FLOOR, FERAN ICON,
SURVEY NO.28,
AKME BALLET DODDANEKUNDI,
OPPOSITE OUTER,
RING ROAD, BENGALORE - 560 037.
...RESPONDENTS
(BY SRI. MANJUNATH MALLAYYA SHETTY, ADVT. FOR R2;
V/O DATED: 23.11.2021 NOTICE TO R1 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO ENHANCE THE COMPENSATION
AMOUNT PAYABLE TO THE APPELLANT BY SUITABLY
MODIFYING THE JUDGMENT AND AWARD 01.10.2019 PASSED
BY IIIRD ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPUR IN MVC
NO.1204/2016, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY
K V ARAVIND J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with
the consent of both the learned counsel, it is taken up for
disposal.
2. These appeals by the claimants arises out of the
common judgment and award in MVC No.1204/2016 and
MVC No.1205/2016 dated 01.10.2019 on the file of the III
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Additional Senior Civil Judge and MACT XII Vijayapur (for
short 'the Tribunal').
3. MFA No.200675/2021 is against MVC
No.1205/2016 and MFA No.200676/2021 is against MVC
No.1204/2016.
4. Both the claimants preferred petitions under
Section 166 of the Motor Vehicles Act, 1988 (for short 'the
M.V. Act'), seeking compensation due to injuries sustained
in the accident that occurred on 27.05.2016, due to rash
and negligent driving of the driver of Bolero Jeep bearing
Reg.No.MH-45-N-4720. The claimants contended that they
were earning a sum of Rs.10,000/- p.m. each from
agriculture and paper vending work.
5. On service of notice, respondents appeared
through their counsels and filed written statements.
Respondent No.1 filed common written statement in both
the petitions admitting ownership of the offending vehicle
and stated that the vehicle was insured with respondent
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No.2 as on the date of accident. Though, he denied
occurrence of the accident and the claimants sustaining
injuries and contended that if any liability, is directed to be
indemnified by respondent No.2.
6. Respondent No.2 filed written statement
denying insurance policy to the offending vehicle, alleged
occurrence of the accident and disputed injuries due to the
accident, apart from denying age, occupation and income
of the claimants. Further, contended that petitions are
filed in collusion with respondent No.1. Driver of the
Bolero vehicle did not possess a valid and effective driving
licence, accident occurred due to negligence of the
claimants. Thus, prays to dismiss the claim petition.
7. The Tribunal based on pleadings, framed the
following issues in common to both the petitions:
1) "Whether the respective petitioners prove that
they sustained injuries in the Motor vehicle
accident at 9.00 a.m, on 25-05-2016 on Veet
Korti road, in Veet village opposite Dandappa
Jadhav Kirana Shop on account of rash and
negligent driving of Bolero No.MH-45/N-4720 by
its driver as alleged?
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2) Whether the respondent No.2 proves that, they
are not liable to pay compensation as driver of
the vehicle not having valid and effective
Driving License?
3) Whether the petitioner is entitled for the reliefs
as sought for if so what is the quantum and
from whom?
4) What order or award."
8. Claimants in both the petitions have examined
themselves as PWs.1 and 2, four doctors have been
examined as PWs.3 to 6 and got marked Exs.P1 to 28.
Respondent No.1 has not examined any witness and no
documents are marked. Respondent No.2 examined RW.1
and got marked Exs.R1 to R2.
9. The Tribunal based on the evidence on record
held that the accident occurred due to rash and negligent
driving of the offending vehicle.
10. In MVC No.1204/2016, the Tribunal awarded
compensation of Rs.2,31,300/- under the following heads:
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Compensation
Different Heads amount
Pain and sufferings 25,000/-
Medical expenses/bill 4,500/-
Loss of earning during laid up period 5,000/-
Loss of future earning on account of 1,72,800/-
permanent disability
Loss of amenities and future unhappiness 20,000/-
Attendant, diet, conveyance and other 4,000/-
charges
Total 2,31,300/-
11. The Tribunal while awarding compensation,
considered the disability at 10%, age of the claimant as 22
years and applied multiplier '18' and assessed the monthly
income at Rs.8,000/- p.m.
12. In MVC No.1205/2016, the Tribunal awarded
compensation of Rs.18,23,178/-. The Tribunal considered
the disability at 20%, age as 21 years and applied
multiplier '18' and assessed the monthly income at
Rs.8,000/- p.m.
13. We have heard Sri. Sanganagouda V. Biradar,
learned counsel for the appellant / claimant, Sri.
Manjunath Mallayya Shetty, learned counsel for
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respondent No.2 - Insurance Company. Notice to
respondent No.1 in MFA No.200676/2021 is dispensed
with vide order dated 23.11.2021. In MFA
No.200675/2021 notice to respondent No.1 is dispensed
with vide order dated 09.03.2022.
In MVC No.1204/2016:
14. Learned counsel for the claimant submits that
the claimant was doing agriculture and paper vending
work and earning a sum of Rs.10,000/- p.m., the income
considered at Rs.8,000/-p.m. is on the lower side. Learned
counsel further submits that due to accident, the claimant
has suffered fracture at acetabulum left, with dislocation of
hip left with left femur, injury to left thigh femur. The
claimant has undergone three surgeries and steel rods
have been fixed, the doctors have assessed the disability
to lower limb at 30 to 35%, 10% as functional disability
considered by the Tribunal is on the lower side. Learned
counsel further submits that the compensation awarded
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under other heads is on the lower side. Thus, prays to re-
assess the same.
15. Per contra, learned counsel for the Insurance
Company submits that as per the evidence of the doctors,
the injuries and fractures have been cured and re-united,
the injuries or disability will not impact the earning
capacity of the claimant. Hence, the Tribunal is justified in
considering the functional disability at 10%. Learned
counsel further submits that in the absence of any
evidence to prove the income, the Tribunal is justified in
assessing the notional income at Rs.8,000/- p.m. Further,
submits that the compensation awarded under other heads
is reasonable. Thus, contends that the judgment and
award does not call for any interference.
16. We have considered the submissions, perused
the appeal papers and also evidence made available to us
by the counsel for the claimant.
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17. The injuries due to accident involving Bolero
Jeep bearing Reg.No.MH-45-N-4720 is not in dispute in
this appeal. As per discharge card - Ex.P16, the claimant
has suffered fracture acetabulum left, with dislocation of
hip left with left femur, injury to left thigh femur. CT scan
at Ex.P14 reflects fracture of posterior hip of left
acetabulum. PW.3 - Orthopedic surgeon has confirmed the
above referred injuries. Apart from the injuries, PW.3 has
stated that the claimant suffers from left thigh and left
knee joint and discomfort in sitting and squat. It is further
stated on existence of rod and screw in the lower limb.
18. Though PW.3 has stated that fractures are re-
united, the nature of injuries when compared to the
activity carried on by the claimant i.e., agriculture and
paper vending, the claimant being deprived of carrying on
his work as he was before the accident cannot be ignored.
Considering the nature of injuries and the agricultural
activities carried on by the claimant, the functional
disability assessed by the Tribunal at 10% is on the lower
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side. Considering the age and nature of injuries sustained
in the accident, we deem it appropriate to assess the
functional disability at 15%.
19. Though, the claimant has contended that he
was earning a sum of Rs.10,000/- p.m., no evidence has
been placed on record. In absence of any evidence to
prove the income, the Tribunal is justified in assessing the
notional income. However, the assessment of notional
income at Rs.8,000/- p.m. is on the lower side. As per the
chart prepared by the KSLA for the accident of the year
2016, the notional income is to be considered at
Rs.8,750/- p.m. Hence, the income of the claimant is
assessed at Rs.8,750/- p.m. The age and applicable
multiplier is not in dispute in this appeal. Hence, 22 years
age and applicable multiplier '18' considered by the
Tribunal is sustained. The loss of future earning is
re-calculated as under:
Rs.8,750/- x 12 x 18 x 15% = Rs.2,83,500/-.
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20. The claimant has suffered injuries and has
undergone surgeries and also has undergone follow up
treatment. The claimant was inpatient for 15 days. During
the period of treatment, follow up treatment and till the
healing of the injuries, the claimant has suffered loss of
earning. Considering the above aspects, we hold that the
compensation of Rs.25,000/- towards pain and suffering is
on the lower side and the same is enhanced to
Rs.40,000/-.
21. The loss of earning during laid up period
assessed by the Tribunal at Rs.5,000/- which is on the
lower side. We deem it appropriate to award two months
income assessed towards loss of earning during laid up
period, the same is as below:
Rs.8,750/- x 2 = Rs.17,500/-.
22. Given the injuries and period of treatment, the
claimant was deprived of amenities. The compensation
awarded at Rs.20,000/- towards loss of amenities and
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future unhappiness is on the lower side and the same is
enhanced to Rs.40,000/-.
23. The Tribunal has awarded a sum of Rs.4,000/-
towards attendant, diet, conveyance and other charges,
the same is on the lower side. Considering the period of
treatment, the same is enhanced to Rs.10,000/-.
Compensation awarded by the Tribunal under medical
expenses head is retained.
24. Thus, the claimant is entitled to the following
compensation:
As awarded by As awarded
Compensation under the Tribunal by this Court
different Heads (Rs.) (Rs.)
Pain and sufferings 25,000/- 40,000/-
Medical expenses/bill 4,500/- 4,500/-
Loss of earning during laid 5,000/- 17,500/-
up period
Loss of future earning on 1,72,800/- 2,83,500/-
account of permanent
disability
Loss of amenities and 20,000/- 40,000/-
future unhappiness
Attendant, diet, 4,000/- 10,000/-
conveyance and other
charges
Total 2,31,300/- 3,95,500/-
Enhancement 1,64,200/-
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25. Thus, in MVC No.1204/2016, the total
compensation awarded is Rs. 3,95,500/- as against
Rs.2,31,300/- as awarded by the Tribunal.
In MVC No.1205/2016:
26. Learned counsel for the claimant submits that
the claimant has suffered fracture to left femur midshat,
fracture left ramus mandibular, lower end of radius,
abrasion over left supra-orbital region and the same is
operated on two occasions. Learned counsel further
submits that the claimant has suffered disability to eye at
30 to 35%, dental disability at 70 to 80% and Neuro
disability at 50% and functional disability at 30%. The
Orthopedic surgeon has assessed the permanent disability
at 30 to 35%. The over all functional disability assessed by
the Tribunal at 20% is on the lower side.
27. Learned counsel further submits that the
claimant was earning a sum of Rs.10,000/- p.m. from
agricultural and paper vending, the income assessed by
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the Tribunal at Rs.8,000/- is on the lower side. Learned
counsel further submits that, considering the nature of
injuries and other aspects, compensation awarded under
other heads is on the lower side. Thus prays to re-assess
the compensation.
28. Per contra, learned counsel for the insurer
submits that the disability assessed at 20% is based on
evidence of doctors and as per the percentage of disability
assessed by the respective doctors. On over all
consideration of disability assessed by all the doctors i.e.,
Eye specialist, Dental surgeon, Neuro surgeon and
Orthopedic surgeon, the disability at 20% is justified.
Learned counsel further submits that in the absence of any
evidence to prove the income, the notional income
assessed by the Tribunal is just and proper. It is further
submitted that the compensation awarded under other
heads is just and proper. Thus, the judgment and award
does not call for any interference of this Court.
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29. We have considered the submissions of learned
counsel for the parties, perused the appeal papers and
evidence made available to us by the counsel for the
claimant.
30. The injuries suffered due to accident occurred
on 27.05.2016 involving Bolero Jeep bearing Reg.No.MH-
45-N-4720 is not in dispute in this appeal.
31. As per the statement of PW.3 - Orthopedic
surgeon, the claimant has suffered left femur midshat,
fracture left ramus mandibular, lower end of radius,
abrasion over left supra-orbital region, the claimant is
suffering from joint movements and restricted terminal 10
to 15 degree limb on walking, restricted abduction on left
hip, restriction on left knee movements, unable to sit or
squat with cross leg, requirement of further operation
surgeries for removal of implant.
32. The PW.4 - Eye surgeon has stated on
existence of signs suggestive of blindness of right eye,
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suggestive of right anterior usual pathway lesion, lost
vision of right eye to the extent of 30 to 35%. PW.5 -
General surgeon has stated that the IQ of the claimant is
reduced to 70 to 80%, cannot make out any smell by both
nostrils and suffers from loss of partial memory power.
Assessed Neurological disability at 20%.
33. PW.6 - Dental surgeon has assessed the
disability at 70 to 80% stating that the claimant suffers
from disability to bite and chew food properly and
suffering from clarity while talking. Though, all the doctors
have been extensively cross-examined by the insurer, no
contrary evidence has been elicited nor produced.
Considering the nature of injuries and the disability
suffered due to various injuries as stated by the specialist
doctors, the percentage of disability at 20% as assessed
by the Tribunal is on the lower side. The nature of injuries
and disabilities suffered, if examined with the agricultural
activity carried on by the claimant, the functional disability
at 20% is on the lower side. Though, the disability may
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not fully prevent the claimant from carrying on the
agricultural activities, definitely the injuries and disabilities
would deprive the claimant from carrying on the
agricultural activities as he was doing before the accident.
Considering the above aspects, we deem it appropriate to
assess the functional disability at 50%.
34. Though, the claimant has contended that he
was earning a sum of Rs.10,000/- p.m., no evidence is
placed on record to prove the income. The Tribunal has
rightly assessed the notional income. The notional income
at Rs.8,000/- assessed by the Tribunal is on the lower
side. Considering the chart prepared by the KSLA for the
accident of the year 2016, the notional income is to be
considered at Rs.8,750/- p.m. Hence, we assess the
income of the claimant at Rs.8,750/- p.m. Hence, loss of
future earning is re-calculated as under:
Rs.8,750/- x 12 x 18 x 50% = Rs.9,45,000/-.
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35. The claimant has undergone surgeries,
treatment with multiple doctors and was inpatient for
about 15 days. Considering the nature of injuries,
treatment period and pain that the claimant would have
suffered, compensation of Rs.25,000/- towards pain and
suffering is on the lower side and the same is enhanced to
Rs.45,000/-.
36. Considering the treatment period as inpatient
as well as follow up treatment and clinical examinations
undergone by the claimant, a sum of Rs.5,000/- towards
loss of earning during laid up period is on the lower side.
We deem it appropriate to award three months income
towards loss of earning during laid up period and the same
is as below:
Rs.8,750/- x 3 = Rs.26,250/-.
37. Considering the above aspects i.e., injuries,
treatment, surgeries and inpatient for 15 days, the
compensation awarded at Rs.20,000/- towards loss of
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amenities is on the lower side and the same is enhanced
to Rs.40,000/-. Further, Rs.4,000/- towards attendant,
diet, conveyance and other charges is on the lower side
and the same is enhanced to Rs.10,000/-.
38. Thus, the claimant is entitled to the following
compensation:
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 25,000/- 45,000/-
Medical expenses/bill 14,23,578/- 14,23,578/-
Loss of earning during 5,000/- 26,250/-
laid up period
Loss of future earning 3,45,600/- 9,45,000/-
on account of
permanent disability
Loss of amenities and 20,000/- 40,000/-
future unhappiness
Attendant, diet, 4,000/- 10,000/-
conveyance and other
charges
Total 18,23,178/- 24,89,828/-
Enhancement 6,66,650/-
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39. Thus, in MVC No.1205/2016, the total
compensation awarded is Rs. 24,89,828/- as against Rs.
18,23,178/- as awarded by the Tribunal.
40. In the result, we pass the following:
ORDER
a) Both the appeals are allowed in part.
b) The judgment and award in MVC
No.1204/2016 and 1205/2016 dated
01.10.2019 on the file of the III Additional
Senior Civil Judge and MACT XII Vijayapur
is modified.
c) The claimant in MVC No.1204/2016 is
entitled to a total compensation of
Rs.3,95,500/-, with interest at 6% p.a.
d) The claimant in MVC No.1205/2016 is
entitled to a total compensation of
Rs.24,89,828/-, with interest at 6% p.a.
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e) The Insurance Company is directed to
deposit the compensation amount along
with interest @ 6% p.a. from the date of
filing of the claim petitions till the date of
realization, within a period of six weeks
from the date of receipt of copy of this
judgment.
f) The deposit and release of amount shall be
made in terms of the award of the
Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
DDU
CT;BN
