Karnataka High Court
The General Manager vs Basavaraj Fakkirappa Hulagar on 9 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
-1-
NC: 2024:KHC-D:3138
MFA No. 24512 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.24512 OF 2013 (MV-I)
BETWEEN:
THE GENERAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
STATION ROAD, GADAG,
REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, ARIHANT PLAZA,
KESHWAPUR, HUBLI-23.
...APPELLANT
(BY SRI. RAJESH B.RAJANAL, ADVOCATE)
AND:
1. SRI. BASAVARAJ FAKKIRAPPA HULAGAR,
AGE: 33 YEARS, OCC: BUSINESS and AGRICULTURE,
R/O. KADAKOL, TQ: SAVANUR,
DIST: HAVERI.
2. SRI. JAGADISH SHIDDALINGAPPA
PATTANASHETTI
BHARATHI
HM AGE: 41 YEARS, OCC: OWNER OF THE
Digitally signed by
MAHINDRA TEMPO BEARING NO. KA-20/2592,
BHARATHI H M
Date: 2024.02.21
11:58:36 +0530
R/O. HATTIMATTUR, TQ: SAVANUR,
DIST:HAVERI.
...RESPONDENTS
(BY SRI. SHIVAKUMAR S.BADAWADAGI, ADVOCATE R1;
R2 SERVED)
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:19-08-2013 PASSED IN MVC
NO.105/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND MEMBER,
ADDL.MACT, HAVERI, AWARDING THE COMPENSATION OF
Rs.6,92,000/- WITH INTEREST AT THE RATE OF 6% P.A., ON
-2-
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MFA No. 24512 of 2013
Rs.6,82,000/- FROM THE DATE OF PETITION TILL THE DATE OF
REALISATION.
THIS M.F.A., COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for orders, it is taken up for
final disposal.
2. Heard Sri.Rajesh B. Rajanal, learned counsel for the
appellant and Sri.Shivakumar S. Badawadagi, learned counsel
for respondent No.1.
3. Appeal filed by Insurance Company on the quantum
of compensation as well as contributory negligence on the part
of the claimant challenging the validity of the judgment and
award passed in MVC No.105/2012 dated 19.08.2013 on the
file of Senior Civil Judge and AMACT, Haveri.
4. Brief facts of the case are as under:
Claimant suffered accidental injuries on 20.01.2012 at
6.45 am when he was proceeding on the motor cycle bearing
No.KA-27/7221 and on account of negligent driving by the
driver of Mahindra tempo bearing No.KA-20/2592. He was
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shifted to the hospital and treated in the hospital. He has
suffered four to five fractures.
5. Tribunal on contest, allowed the claim petition
partly in a sum of Rs.6,92,000/-.
6. Being aggrieved by the quantum of compensation
and also taking note of recitals of spot mahajar to the effect
that the accident has occurred in the middle of the road,
Sri.Rajesh B. Rajanal, learned counsel sought for attributing
contributory negligence to the rider of the motor cycle and also
reassess the quantum of compensation.
7. He further pointed out that though the medical bills
are to the tune of Rs.1,00,000/-, Tribunal has granted
vociferously Rs.1,50,000/-. He also contended that on the
question of disability, though the Doctor has assessed 50%,
Tribunal in the absence of treated doctor being examined, it
has taken 30% which is in correct and it should have been
1/3rd and sought for reassessment of the compensation by
reducing the quantum.
8. Per contra, Sri.Shivakumar S. Badawadagi, learned
counsel representing the claimant/respondent No.1 contended
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that the Tribunal has not assessed the monthly income properly
and has taken Rs.5,500/- as notional monthly income in the
absence of proper proof of income and it should have been in
such circumstances minimum of Rs.6,500/-. He also pointed
out that on the head of pain and suffering award of
compensation is on the lower side, as the claimant has suffered
four to five fractures and therefore sought for quantum to be
maintained.
9. Insofar as, contributary negligence is concerned,
Sri.Shivakumar S. Badawadagi, learned counsel pointed out
that there is no material on record to show that the rider of
motor cycle is also responsible for the accident and therefore
under such circumstances non attributing any contributory
negligence to the claimant is just and proper and only on the
basis of the recitals in spot mahajar, this Court cannot
ascertain as to who is at fault and sought for dismissal of the
appeal.
10. Having heard the parties in detail, this Court
perused the material on record meticulously.
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11. On such perusal of the material on record, claimant
is successful in establishing that he has suffered accidental
injuries when he was proceeding on motor cycle bearing No.KA-
27/7221 at 6.45 am on 20.01.2012 involving a Mahindra
Tempo bearing No.KA-20/2592.
12. Tribunal, on consideration of the material placed on
record, allowed the compensation in a sum of Rs.6,92,000/-.
13. Further, the Tribunal has taken into consideration
the monthly income in a sum of Rs.5,500/- in the absence of
proper proof of income and it should have been Rs.6,500/-
which is normally assessed by this Court for the accidental
injuries for the year 2012.
14. However, Tribunal was at wrong in assessing 30%
disability factor as PW.2 is not a treated Doctor, who has
assessed disability factor at 50%.
15. In such circumstances, normally this Court would
assessed 1/3rd of the disability factor as mentioned in the
disability certificate. Further, even though the medical bills are
only to the extent of Rs.1,00,000/-, Tribunal has granted
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Rs.1,50,000/- which is also incorrect. Therefore, a case is
made out for reassessment of the compensation.
16. Further, since the income is not properly taken,
disability factor is also not taken properly, instead of reducing
the amount on the head of loss of income due to permanent
disability and other heads, if a sum of Rs.92,000/- is reduced
from the quantum of compensation, ends of justice would be
met.
17. There is no material placed by the parties so as to
ascertain whether the claimant was really negligent so as to
attribute sum amount of contributory negligence.
18. In view of the foregoing discussions, following :
ORDER
(i) Appeal is allowed in part as against a sum of
Rs.6,92,000/- awarded by the Tribunal,
claimant would be entitled to sum of
Rs.6,00,000/- with interest at 6% p.a. from
the date of institution till realization.
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(ii) Amount in deposit is ordered to be transmitted
to the Tribunal.
(iii) Balance amount to be deposited within a
period of four weeks from today.
Sd/-
JUDGE
KAV
