Karnataka High Court

The Divisional Manager vs Sharath Kumar And Anr on 20 February, 2024

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                                                   NC: 2024:KHC-K:1649
                                                   MFA No. 201394 of 2021
                                               C/W MFA No. 200141 of 2023



                              IN THE HIGH COURT OF KARNATAKA,
                                     KALABURAGI BENCH
                         DATED THIS THE 20TH DAY OF FEBRUARY, 2024
                                          BEFORE
                        THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
                        MISC. FIRST APPEAL NO.201394 OF 2021 (MV-I)
                                            C/W
                         MISC. FIRST APPEAL NO.200141 OF 2023(MV-I)
                   IN MFA NO.201394/2021:-

                   BETWEEN:

                   THE DIVISIONAL MANAGER,
                   THE UNITED INDIA INSURANCE COMPANY LTD,
                   DIVISIONAL OFFICE,
                   OPP. SANGAM TALKIES,
                   SUPER MARKET,
                   KALABURAGI-585 101.
                                                              ...APPELLANT
                   (BY SRI. MOHD. ABDUL QUAYUM, ADVOCATE)

                   AND:

Digitally signed   1.  SHARATH KUMAR
by KHAJAAMEEN          S/O SHIVASHARANAPPA NAVALBA,
L MALAGHAN
Location: High         AGE: 34 YEARS, OCC: SERVICE AS TERRITORIAL
Court of               SALES EXECUTIVE, IN IDEA MOBILE COMPANY
Karnataka
                       NOW NIL,
                       R/O. VILLAGE DANDOTI,
                       TQ. CHITAPUR, DIST: KALABURAGI-585211.
                   2. M/S VENKATESHWARA CLEARING AGENCY
                       REPRESENTED BY DEEPAK VYAS,
                       SHOP NO. 9 NEAR SRINIVAS CHOWK,
                       ACC GATE, WADI, TQ. CHITTAPUR,
                       DIST: KALABURAGI-585225.
                                                            ...RESPONDENTS
                   (BY SRI. SANJEEV PATIL, ADV. FOR R1;
                   R2-SERVED)
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                                  NC: 2024:KHC-K:1649
                                  MFA No. 201394 of 2021
                              C/W MFA No. 200141 of 2023



       THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
PRAYING TO A) CALL FOR THE RECORDS IN MVC.NO.905/2018
BY THE SENIOR CIVIL JUDGE AND MACT AT CHITTAPUR.
B) SET ASIDE THE JUDGMENT AND AWARD DATED 18.08.2021
PASSED IN MVC.NO.905/2018 BY THE SENIOR CIVIL JUDGE
AND MACT AT CHITTAPUR REDUCING THE COMPENSATION
AND ETC.

IN MFA NO.200141/2021:-
BETWEEN:
SHARATH KUMAR
S/O SHIVASHARANAPPA NAVALBA,
AGE: 35 YEARS, OCC: TERRITORIAL SALES
EXECUTIVE, IN IDEA MOBILE COMPANY
NOW NIL,
R/O. DANDOTI, TQ. CHITAPUR,
DIST: KALABURAGI.

                                             ...APPELLANT
(BY SRI. SANJEEV PATIL, ADVOCATE)

AND:

1.   M/S VENKATESHWARA CLEARING AGENCY
     REP. BY DEEPAK VYAS, SHOP NO. 9,
     NEAR SRINIVAS CHOWK, ACC GATE,
     WADI, TQ. CHITTAPUR,
     DIST: KALABURAGI-585224.

2.   THE DIVISIONAL MANAGER,
     THE UNITED INDIA INSURANCE CO. LTD.,
     DIVISIONAL OFFICE,
     OPP. SANGAM TALKIES,
     SUPER MARKET,
     KALABURAGI-585 101.
                                          ...RESPONDENTS
(BY SRI. MOHD. ABDUL QUAYUM, ADV. FOR R2;
 V/O DATED 09.01.2023 NOTICE TO R1 IS DISPENSED WITH)
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                                      NC: 2024:KHC-K:1649
                                       MFA No. 201394 of 2021
                                   C/W MFA No. 200141 of 2023



       THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.

ACT,   PRAYING TO EXERCISE ITS APPELLATE JURISDICTION,

CALL FOR THE ENTIRE LOWER COURT RECORDS AND MODIFY

THE JUDGMENT AND AWARD DATED 18.08.2021 PASSED BY

THE LEARNED SENIOR CIVIL JUDGE AND MACT AT CHITTAPUR

IN MVC.NO.905/2018 BY ENHANCING THE COMPENSATION

AMOUNT AS PRAYED FOR AND ETC.



       THESE APPEALS, COMING ON FOR ADMISSION, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Aggrieved by the award passed in MVC.No.905/2018

dated 18.08.2021 both the insurance company as well as

the claimant are before this Court.

02. The appeal of the claimant is MFA.200141/2023

and the appeal of the insurance company is

MFA.No.201394/2021.

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03. The claim petition is filed seeking compensation

of an amount of Rs.25,00,000/- and the Tribunal had

awarded an amount of Rs.9,46,676/-. It is the case of the

claimant that on 02.09.2016 at about 02.30 p.m. he was

riding his Hero-Honda Bike along with his friend. While he

was returning to his village, at that time a Lorry came

from opposite direction in a rash and negligent manner,

without giving any signal and the driver abruptly took the

lorry towards right side of the road and dashed against the

claimant's bike and caused the accident. The claimant had

sustained several injuries and spent huge amounts

towards treatment. As per the evidence of the doctor the

claimant had sustained i) Traumatic brain and face

injuries, ii) Postural giddiness, neck pain and restricted

neck movements and unable to lift weight and deformed

look of face, psychosomatic disturbance of heaviness in

head which causes forgetfulness and loss concentration,

iii) Inability to mastication roti, fruits etc., and iv) Partial

loss of hearing in left ear is due to damage to auditory.

According to the Doctor he had suffered 49% disability to

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the whole body. When it comes to the income of the

claimant, according to the claimant, he was earning

Rs.16,476/- per month. The Tribunal had considered the

same. When it comes to the age, the Tribunal had taken

the age of the claimant as 25 years and granted the

compensation.

04. The learned counsel appearing for the insurance

company submits that as per the cause title itself the

claimant's age is 31 years. The Tribunal without any basis

had taken the age of the claimant as 25 years. It is

submitted that the doctor who had given the disability

certificate stated that the claimant is having 49%

disability. It is submitted that he was not a treated doctor

or there is no discussion on what basis the doctor had

come to such conclusion, which is on the higher side. The

Tribunal had jumped to the conclusion on all aspects

without any discussion. He further submits that the

compensation that was awarded by the Tribunal is on the

higher side and the same has to be reduced.

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05. The learned counsel appearing for the claimant

submits that the claimant had sustained the head injury

and the disability as stated by the Doctor is correct and

the Tribunal without any discussion had taken 25%

disability, which is on the lower side and the claimant is

entitled for enhancement of the compensation.

06. Having heard the learned counsel on either

side, perused the entire material on record.

07. In this case, according to the claimant, he was

earning Rs.16,476/- per month. The Tribunal had also

taken the same as his income. This Court had perused the

list of documents which are filed in that the salary

certificate is not part of the evidence nor the claimant had

examined anybody in support of the same. On what basis

the Tribunal had considered the salary, reasoning is not

forthcoming. Then coming to the age of the claimant, as

per the cause title and as per the case of the claimant, he

himself is 31 years, on what basis the Tribunal had taken

the age of the claimant as 25 years is also without any

NC: 2024:KHC-K:1649

basis. Then coming to the disability, this Court had

perused the disability certificate. The doctor is not a

treated doctor, but it cannot be a ground to disbelieve his

evidence. The doctor had not given the specifications and

the basis on which he had arrived at that conclusion. What

is the disability to the limb and what is the disability to the

whole body is not mentioned in the disability certificate.

08. The learned counsel appearing for the claimant

submits that though it is not marked, but placed the salary

particular of the claimant before the Tribunal. This Court

has also found that the some numbers given in the B-

series is there in the Lower Court records.

09. Considering all these facts and circumstances of

the case, balancing the interest of both the parties, this

Court deems it appropriate to remand the matter to the

Tribunal for consideration of the claim petition by giving

opportunity to both the parties.

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10. The judgment and award passed by the

Tribunal in MVC.No.905/2018 dated 18.08.2021, is set-

aside and both the appeals are allowed and the matter is

remanded back to the Tribunal. The Tribunal shall consider

the following aspects:-

I. The age of the claimant, II. The salary of the claimant, III. The disability of the claimant and IV. The claimant shall be referred to the Medical Board for assessing the disability.

11. Both the claimant and the insurance company

are at liberty to adduce the evidence before the Tribunal.

Without further reference, the parties shall appear before

the Tribunal on 18.03.2024. The Tribunal shall dispose of

the case within 06 months from 18.03.2024. The parties

shall co-operate with the trial and if they are not

cooperating with the trial, the Tribunal shall go-ahead with

the material available on record.

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a. The amount in deposit shall be forthwith

transferred to the Tribunal and shall kept in a

fixed deposit.