Karnataka High Court
Shri.Ganapat S/O Sadanand vs Shri.Swapnil S/O Laxman Kale on 2 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:2397
MFA No. 101670 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 101670 OF 2019 (MV-I)
BETWEEN:
SHRI.GANAPAT S/O. SADANAND TUKKAR,
AGE: 36 YEARS, OCC: FABRICATOR, NOW NIL.
R/O: 141, NEMINATH GALLI,
MARUTI ROAD, OLD GANDHI NAGAR,
BELAGAVI, PIN:590004,
TQ:DIST:BELAGAVI-590004.
...APPELLANT
(BY SRI. HANAMANT R.LATUR, ADVOCATE)
AND:
1. SHRI. SWAPNIL S/O. LAXMAN KALE,
AGE: 42 YEARS, OCC: BUSINESS,
R/O H.NO.83/2, MARUTI ROAD,
GANDHI NAGAR, BELAGAVI
PIN:590004 TQ:DIST:BELAGAVI-590004.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
Digitally
signed by HAVING ITS DIVISIONAL OFFICE,
SAROJA
SAROJA HANGARAKI 3933/B2, MOODALAGI BUILDING,
HANGARAKI Date: 2ND FLOOR, CLUB ROAD, BELAGAVI,
2024.02.19
15:58:03 DIST: BELAGAVI-590001.
+0530
...RESPONDENTS
(BY SRI. SUBHAS J.BADDI, ADVOCATE FOR R2;
R1 SERVED)
THIS M.F.A. IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 20.11.2018 PASSED
IN MVC NO.2604/2017 ON THE FILE OF THE XI ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, DISMISSING THE CLAIM
PETITION FILED UNDER SECTION 166 OF M.V. ACT.
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NC: 2024:KHC-D:2397
MFA No. 101670 of 2019
THIS M.F.A., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Hanamant R. Latur, Sri.Subhas J.Baddi,
learned counsel for the parties.
2. Unsuccessful claimant is appellant challenging the
validity of the judgment and award passed in MVC
No.2604/2017 dated 20.11.2018 on the file of XI Addl.
District and Sessions Judge and Addl. MACT, Belagavi.
3. Facts in brief which are utmost necessary for disposal
of the appeal are as under:
3.1 Claimant laid a claim under Section 166 of MV Act
contending that he was the pillion rider of vehicle bearing
No.KA-22/EN-5209 met with a road traffic accident
occurred on 21.05.2017 at about 9 p.m. on Modaga-
Sambra road near Basavan Kudachi bypass.
3.2. Injured was shifted to the KLE hospital where he took
treatment and cured himself. He had suffered head injury.
There was a delay of 9 days in lodging the complaint about
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the incident with police. After lodging the complaint police
investigated the matter and charge sheeted the rider of
the motorcycle.
4. Claim petition came to be dismissed on contest by
the tribunal on the ground that there is a delay of 9 days
in filing the complaint, even though, there is no evidence
placed on record on behalf of the insurance company.
5. Said dismissal of the claim petition is called in
question in this appeal.
6. Sri.Hanamanth R.Latur, learned counsel for the
appellant reiterating the grounds urged in the appeal
memorandum contended that mere delay of 9 days in
filing the complaint has been blown out of proportion by
the learned trial judge without noticing the settled
principle of law and wrongly dismissed the claim petition
resulting in miscarriage of justice and sought for allowing
the appeal.
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7. Per contra, Sri.Subhas J.Baddi, learned counsel for
the respondent No.2 contended that not only there was no
complaint for a period of 9 days but there was also no MLC
report sent by the KLE Hospital and therefore, tribunal was
right in rejecting the claim petition.
8. In view of the rival contentions of the parties, this
court has perused the material on record meticulously.
9. On such perusal of the material on record, there is no
delay in admitting the injured to the KLE Hospital as could
be seen from the medical records.
10. In the medical records, especially wound certificate,
there is a specific mention that injured got injuries as per
the wound certificate in a road traffic accident that
occurred on 21.05.2017 at 9 p.m.
11. Therefore, there is sufficient material on record to
establish that injured sustained injuries as per Ex.P.6 in a
road traffic accident. Mere not sending MLC report by the
KLE Hospital or delay in filing the complaint with the police
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itself cannot be a ground for denying the compensation to
the claimant nor case of the claimant could be doubted.
12. Under such circumstances, recording of such a
finding by the trial court that the claimant is not entitled
for the compensation and dismissing the same needs
interference at the hands of this court.
13. Having said thus, the next question that is to be
decided by this court in this appeal is what is the quantum
of compensation that needs to be awarded.
14. For the accidental injuries of the year 2017, in the
absence of proper proof of income, sum of Rs.10,250/- is
to be taken as notional income. Though the doctor has
assessed the disability to the whole body, since the DW.2
is not the treated doctor, 1/3 of the 20% is to be
considered for assessing the disability that comes to 7%.
Therefore, on the head loss of income due to disability the
claimant is entitled for sum of Rs.1,37,760/-(Rs.10,250/-
X12X7X16).
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15. On the head of pain and suffering, loss of amenities,
loss of income during laid up period appellant is entitled
for enhancement of compensation. Instead of reassessing
the compensation on each and every head, if a sum of
Rs.3,00,000/- is awarded as compensation for the
accidental injuries, that would meets the ends of justice.
Insurance company is liable to pay the compensation
since the vehicle in question was duly insured as on the
date of accident.
16. Accordingly, the following:
ORDER
i) Appeal is allowed.
ii) Impugned judgment and award passed in
MVC No.2604/2017 is set aside.
iii) Appellant/claimant is entitled for
compensation in a sum of Rs.3,00,000/- along
with interest at 6% p.a. from the date of
petition till realization.
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iv) Insurance company is liable to pay the
compensation since the vehicle in question was
duly insured as on the date of accident.
v) Insurance company is granted with four
weeks time to deposit the compensation
amount.
Sd/-
JUDGE
HMB
