Karnataka High Court
Ramesh vs Sirin And Anr on 16 February, 2024
Bench: H.T.Narendra Prasad, Rajendra Badamikar
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MFA No. 201478 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MISCL. FIRST APPEAL NO. 201478 OF 2022 (MV-I)
BETWEEN:
RAMESH S/O YANKU JADHAV,
AGE: 31 YEARS, OCC: AGRICULTURE, NOW NIL,
R/O ARAKERI, L.T.NO.1,
TQ. AND DIST. VIJAYAPURA-585403.
...APPELLANT
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND:
Digitally signed
by SHILPA R 1. SIRIN S/O IRANNA SHEELAVANTH,
TENIHALLI AGE: 31 YEARS, OCC: BUSINESS,
Location: HIGH R/O NEW KUMBAR GALLI,
COURT OF
KARNATAKA JORAPURPETH, NEAR WATER TANK,
VIJAYAPUR-585403.
2. THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
BIDARI COMPLEX 1ST FLOOR,
KORI CHOUK VIJAYAPURA-585403.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
VIDE ORDER DATED 02.09.2022 NOTICE TO R1 IS DISPENSED
WITH)
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MFA No. 201478 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
A) CALL FOR THE RECORDS IN MVC NO.588/2017 ON THE FILE
OF THE MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IX,
VIJAYAPUR AT - VIJAYAPUR.
B) ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED 18.09.2021 PASSED IN MVC NO.588/2017 BY
THE MEMBER MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL
NO.IX VIJAYAPUR AT- VIJAYAPUR. AND ENHANCING THE
COMPENSATION FROM RS.6,49,250/- WITH 6% INTEREST TO
RS.60,00,000/- WITH 12% INTEREST.
C) GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS
HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE
CASE.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, H.T.NARENDRA PRASAD J., DELIVERED THE
FOLLOWING :
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act')
has been filed by the claimant challenging the judgment
and award dated 18.09.2021, passed by MACT,
Vijayapura, in MVC No. 588/2017, whereby the Tribunal
has awarded a compensation of Rs.6,49,250/- with 6%
interest.
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2. Facts giving rise to the filing of the appeal
briefly stated are that on 31.01.2016 at about 5.30 p.m.,
when claimant was proceeding in a car bearing registration
No.KA-28/ N-1792 the driver of the car drove it with a
high speed in rash and negligent manner, unable to
control over the same, dashed to the parked J.C.B.
bearing registration No.KA-28/N-289. As a result of the
aforesaid accident, the claimant sustained injuries and was
shifted to Swastya Hospital, Bijapur. Immediately after
recovery from the injury, the claimant has filed claim
petition before the Tribunal.
have appeared through their counsel. Respondent No.1
fails to file written statement. Respondent No.2-Insurance
has filed a written statement. They denied averment made
in the claim petition and also denied that accident was
taken place due to the negligence of the driver of the car.
Hence, they sought for dismissal of the claim petition.
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4. On the basis of the pleadings of the parties, the
Tribunal has framed the following issues:
"1) Whether the petitioner proves that on
31.01.2016 at about 5:30 p.m., on NH-13 near
Arakeri L.T.No.1, he sustained injuries due to
accident arising out of use of Indica Car bearing
No.KA-28/N-1792?
2) Whether respondent No.2 proves that, petition
suffers from non-joinder of necessary parties?
3) Whether the respondent No.2 proves that, the
respondent No.1 violated the policy conditions? has
4) Whether the claimant is entitled to the
compensation as claimed?
5) Who is liable to pay the compensation?
6) What order and award? "
5. To prove the case, the claimant has got
examined himself as PW1 and got exhibited documents
namely Ex.P1 to Ex.P16. On behalf of the respondents,
one witness was examined as RW-1 - the officer of the
Insurance Company and marked one document as D1-
Insurance Policy.
6. On appreciation of oral and documentary
evidence, the trial Court has allowed the claim petition and
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awarded a compensation of Rs.6,49,250/- with 6%
interest fixing the liability on respondent Nos.1 & 2 jointly
and severally. Being aggrieved by the same, the claimant
has filed this appeal.
7. Sri. Babu H Metagudda, the learned counsel
appearing for the claimant has contended that due to the
accident, the claimant has suffered grievous injuries,
fracture to the ribs and mandible fractures. Due to the
above said injury, he was unable to do his day-to-day
work. He has examined the Dr. Ashok R. Nayak,
orthopedic surgeon as PW3. He has deposed that claimant
has suffered 30 to 35% and assessed whole body disability
at 10 to 15%. Due to this disability, the claimant is unable
to do his day-to-day work. The Tribunal has failed to grant
any compensation for loss of income due to the disability.
He would further contend that due to the above said
accidental injury, he was hospitalized and was inpatient for
a period of 38 days. Even after the discharge, he has been
advised to take rest. Tribunal has not granted any
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compensation for loss of income during the laid up period
and he further contended that compensation awarded by
the Tribunal for pain and sufferings, loss of amenities,
other incidental expenses are on lower side. Hence, he has
sought for enhancement of compensation.
8. Per contra, Sri. Sudarshan M, learned counsel
appearing for Insurance Company has contended that the
injury suffered by the claimant is minor in nature. The
fracture suffered by the claimant will not affect to his day-
to-day activities. Doctor has not assessed the limb
disability. The whole body disability assessed by the
Doctor at 15% is on higher side. Considering
the evidence of Doctor and injuries suffered by the
claimant, Tribunal has rightly not granted any
compensation for loss of income due to disability. He
further contended that considering the injuries suffered by
the claimant, considering the evidence of Doctor and
medical records, the compensation awarded by the
Tribunal for pain and suffering, loss of amenities,
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other incidental expenses is just and reasonable. Hence,
sought for dismissal of the appeal.
9. Heard the learned counsel for the parties.
Perused the judgment and award of the Tribunal.
10. It is not in dispute that claimant has suffered
injuries in a road traffic accident occurred on 31.01.2016
due to rash and negligent driving of driver of the car
bearing registration No.KA-28/N-1792. Due to the
accident, the claimant has suffered the following injury:
"The ribs fracture and mandible fracture are
not functional part of the body. The mandible
fracture and ribs fracture does not cause physical
disability."
11. The claimant has examined Dr.Ashok R Nayak
as PW3. In his evidence, he has deposed that the claimant
has suffered disability of 30 to 35% related to chest and
10 to 15% permanent disability related to the skull.
Considering the evidence of Doctor and Ex.P11 & Ex.P12
disability certificate and other medical records, we are of
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the opinion that whole body disability can be assessed at
10%.
12. Even though claimant has claimed that he was
earning Rs.20,000/- per month. He has not produced any
document to establish the same and in the circumstances,
notional income has to be assessed considering the
guidelines issued by Karnataka Legal Service Authority,
the notional income for the accident occurred in 2016 has
to be considered Rs.8,750/-. Accordingly, monthly income
of the claimant has to be considered as Rs.8,750/- per
month. At that time of accident he was aged about 25
years the multiplier applicable to the age group is 18.
Accordingly, loss of future earning due to the disability has
to be reassessed as follows:
8,750X12X18X10%=1,89,000/-
13. Due to the accident, the claimant has suffered
the above said injury. Considering the evidence of Doctor
and claimant has suffered 5 grievous injuries and 7 simple
injuries. Considering the age and his avocation and injury
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suffered by the claimant we are of the opinion that pain
and sufferings has to be enhanced from Rs.50,000/- to
Rs.1,00,000/-. Due to the accident, claimant has suffered
10% whole body disability. He has to suffer this disability
and unhappiness throughout of his life. Considering the
evidence of Doctor and injury suffered by the claimant we
are of the opinion that loss of amenities has to be
enhanced from Rs.40,000/- to Rs.75,000/-. Due to the
accident, claimant has suffered 5 grievous injuries and 7
simple injuries. He was inpatient for a period of 38 days.
Even after discharge, he has been advised to take rest.
Considering the evidence of Doctor and injury suffered by
the claimant, we are of the opinion that the claimant is
entitled for loss of income during the laid up period for 3
months is Rs.26,250/ (8750X3).
14. The compensation awarded by the Tribunal in
other heads are just and reasonable. Accordingly, the
appeal is allowed in part. The judgment and award
passed by the Tribunal is modified as follows:
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As awarded As awarded
by the by this Court
Compensation under
Tribunal
different Heads (Rs.)
(Rs.)
Towards Pain and 50,000 1,00,000
sufferings
Towards Loss of amenities 40,000 75,000
Towards attendant 20,000 20,000
charges, nourishment and
diet
Towards medical expenses 5,39,250 539,250
Loss of income during laid 26,250
up period
Loss of future income 1,89,000
Total 6,49,250 9,49,500
Sd/-
JUDGE
Sd/-
JUDGE
DS
