Karnataka High Court
Shivanand Basavanneppa Gamanagatti vs Ashok B. Gudisagar on 26 February, 2024
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NC: 2024:KHC-D:4529
MFA No. 20317 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 20317 OF 2012 (MV-I)
BETWEEN:
SHIVANAND BASAVANNEPPA GAMANAGATTI,
AGE: 40 YEARS, OCC: NOW NIL,
R/O. AGADI, TQ: HUBLI, DIST: DHARWAD.
...APPELLANT
(BY SRI. ASHOK ANGADI, ADV. FOR
SRI. S. M. KALWAD, ADVOCATE)
AND:
1. ASHOK B. GUDISAGAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. BAZAAR ROAD, TQ: NARGUND,
DIST: GADAG.
2. THE DIVISIONAL MANAGER,
THE NATIONAL INSURANCE CO. LTD,
SUJATHA COMPLEX, P. B. ROAD,
HUBLI, DIST: DHARWAD.
Digitally
signed by
ROHAN 3. GOPALKRISHNA N. GUDISAGAR,
ROHAN HADIMANI
HADIMANI T AGE: MAJOR, OCC: DRIVER,
T Date:
2024.02.28
12:11:58
R/O. TMC ROAD, TQ: NARGUND,
+0530
DIST: GADAG.
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 04/10/2011 MADE IN M.V.C NO.212/2011 (OLD
NO.464/2010) PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL M.A.C.T, HUBLI BY SADDLING THE ENTIRE
LIABILITY ON THE RESPONDENT NO.2, IN THE INTEREST OF
JUSTICE AND EQUITY.
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NC: 2024:KHC-D:4529
MFA No. 20317 of 2012
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORDER
This appeal is by the claimant challenging the
contributory negligence as well as seeking enhancement of
compensation awarded under judgment and award dated
4.10.2011 in MVC No.212/2011 (Old No.464/2010) by the
learned Principal Senior Civil Judge & Addl. MACT, Hubli (for
short, 'Tribunal').
2. Heard the learned counsel Sri.Ashok Angadi for
Sri.S.M. Kalwad, learned counsel for the appellant and learned
counsel Sri.G.N.Raichur, for the respondent/insurer. Perused
the appeal papers including original records.
3. Brief facts giving rise to file this appeal are that the
claimant filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 claiming compensation for the accidental
injuries that occurred on 19.02.2010 involving motorcycle
bearing registration No.KA-25/ED-7159 and Maruti Swift car
bearing registration No.KA-26/M-2696. It is stated that the
claimant/injured was aged 38 years as on the date of the
accident and working as Clerk at Vyavasaya Seva Sahakara
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Bank, Agadi, Hubli Taluk, getting salary of Rs.6,000/- per
month and he was also earning Rs.10,000/- per month from
agriculture.
4. Before the Tribunal, owner of the offending car
remained exparte. The Insurance Company contested the
proceedings by filing its statement of objections and denied the
entire claim petition averments.
5. The claimant in order to prove his case examined
himself as PW1 and one doctor examined as PW2 apart from
marking documents Exs.P1 to P16. The respondents examined
one witness as RW1 and marked documents as Ex.R1 to R4.
6. The Tribunal upon hearing the learned counsel on
both sides and perusing the records, allowed the claim petition
in part awarding a compensation of Rs.3,99,000/- with interest
thereon at 6% per annum from the date of petition till date of
payment, fixing contributory negligence to an extent of 50% on
the claimant.
7. Learned counsel appearing for the
appellant/claimant submits that the Tribunal committed an
error in fixing contributory negligence to an extent of 50% on
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the claimant, which is against law and contrary to the material
available on record. He further submits that the Tribunal while
awarding compensation assessed notional income of the injured
at Rs.4,000/-, which is very meager, inasmuch as the claimant
was working as Clerk in Sahakari Bank and getting salary of
Rs.6,000/- per month, so also earning Rs.10,000/- from
Agriculture. It is further submitted that the compensation
awarded by the Tribunal on all heads is on the lower side and
same requires to be enhanced taking note of the injuries
suffered by the claimant and also treatment taken by him.
Thus, he prays for allowing the appeal and to enhance the
compensation.
8. Per contra, Sri.G.N.Raichur, learned counsel for the
respondent/Insurance Company supporting the impugned
judgment and award would submit that the Tribunal based on
the entire material available on record has rightly held that the
accident in question took place due to rash and negligent
driving of both rider of the motorcycle as well as driver of the
offending car, as such, they are equally contributed to the
occurrence of the accident. He further submits that in the
absence of any documentary evidence on record, the Tribunal
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justified in assessing notional income of the injured at
Rs.4,000/- per month, which is just and proper. He would
further submit that the compensation awarded by the Tribunal
on all heads is just and reasonable, which requires no
interference. He therefore, submits there is no merit in the
appeal and it is liable to be dismissed.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers including the Tribunal
records, the following points would arise for consideration:
a) Whether the Tribunal is justified in fixing 50%
contributory negligence on the
appellant/claimant?
b) Whether the appellant/claimant would be
entitled for enhanced compensation?
10. Answer to the above points would be in the
'affirmative' for the following reasons:
11. There is no dispute with regard to the accident
resulting in injuries to the claimant. Insofar as contributory
negligence is concerned, the Tribunal recorded a finding that
the accident in question was head on collision and Ex.P3-
complaint discloses that the petitioner/claimant was riding his
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motorcycle in a rash and negligent manner in a wrong side and
therefore, both rider of the motorcycle as well as driver of the
offending car contributed to the occurrence of the accident to
an extent of 50% each. The said finding recorded by the
Tribunal is based on appreciation of oral and documentary
evidence available on record and same is just and proper.
Hence, the contention of the appellant/claimant with regard to
contributory negligence is rejected.
12. With regard to quantum of compensation, the
Tribunal assessed monthly income of the injured at Rs.4,000/-.
The claimant in order to prove his income has not produced any
acceptable document much less cogent document. In the
absence of any documentary evidence to prove the avocation
and income, this Court would normally assess the income
notionally taking note of income chart prepared by the KSLSA
based on the year of accident. The accident is of the year
2010. As per the chart, the notional income for the year 2010
is Rs.5,500/- per month. The Tribunal assessed disability of
the injured at 30% considering the nature of injuries, evidence
of PW2-doctor coupled with Ex.P6-wound certificate, which in
my view is just and proper, needs no interference. There is no
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dispute with regard to the age of the injured as 38 years and
multiplier of 15. Thus, loss of future income due to disability is
recomputed as under:
Rs.5,500 (income) x 12(months) x 15(multiplier) x 30%
(disability) = Rs.2,97,000/-
13. The Tribunal awarded a sum of Rs.80,000/- under
the head of pain and suffering, which requires to be enhanced
by another sum of Rs.10,000/- taking note of the fact that the
appellant was inpatient for more than 1 month. The Tribunal
committed an error in not awarding any compensation on the
head of loss of amenities, which the claimant would be entitled
to Rs.25,000/- under the said head. Under the head of loss of
income during laid up period, the claimant would be entitled to
Rs.16,500/-(Rs.5,500 x 3). The Tribunal has awarded
Rs.93,000/- towards medical expenses as per medical bills,
which is not disturbed. The Tribunal has awarded a sum of
Rs.10,000/- under the head of conveyance, diet and
attendant charges and it is undisturbed. Thus, in all, the
claimant shall be entitled to modified compensation under the
following heads:
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HEADS AMOUNT
(in Rs.)
Towards pain and suffering 90,000/-
Towards Medical expenses 93,000/-
Conveyance, diet and attendant charges 10,000/-
Loss of future earnings due to disability 2,97,000/-
Loss of amenities 25,000/-
Loss of income during laid-up period 16,500/-
Total 5,31,500/-
50% contributory negligence 2,65,750/-
14. Thus, the claimant shall be entitled to total
compensation of Rs.2,65,750/- as against Rs.1,99,500/-
awarded by the learned Tribunal.
15. In the result, this Court proceeds to pass the
following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total compensation
of Rs.2,65,750/- as against Rs.1,99,500/-
awarded by the Tribunal.
c) The enhanced compensation of Rs.66,250/-
shall carry interest at the rate of 6% per annum
from the date of petition till the date of payment.
d) The Insurance Company shall deposit the
enhanced compensation amount with accrued
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interest before the Tribunal within a period of six
weeks from today.
e) On such deposit, the same shall be released in
favour of the appellant/claimant.
f) Registry to transmit the records forthwith to the
Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
