Karnataka High Court
Babusab S/O. Goresab Bepari vs Ajay Sinha S/O. Appasab Gayakwad on 26 February, 2024
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NC: 2024:KHC-D:4518
MFA No. 101526 of 2014
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. 101526 OF 2014 (MV-I)
BETWEEN:
BABUSAB S/O. GORESAB BEPARI,
AGE: 46 YEARS,
OCC: NOW NIL, (ANIMA SELLING PAGENT),
R/O. NOORANI GALLI, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELGAUM.
...APPELLANT
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. AJAY SINHA S/O. APPASAB GAYAKWAD,
AGE: MAJOR, OCC: BUSINESS,
R/O. KADOLI, DIST: KOLHAPUR,
MAHARASHTRA.
2. THE DIVISIONAL MANAGER,
SENIOR EXECUTIVE,
THE NEW INDIA ASSURANCE COMPANY LTD,
Digitally
signed by
ROHAN
1663, SHRI BHAWANI CHAMBERS,
ROHAN
HADIMANI
T
HADIMANI T
Date:
2024.02.28
2ND FLOOR, RAMLINGKHIND GALLI,
12:12:57
+0530 BELGAUM-590001.
...RESPONDENTS
(BY SRI. M. M. NAIKWADI, ADV. FOR RESPONDENT NO.1,
SRI. S. V. YAJI, ADV. FOR RESPONDENT NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MOTOR VEHICLES ACT 1988, AGAINST JUDGMENT AND AWARD
DTD: 10.04.2014, PASSED IN MVC.NO.2163/2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDL. MACT, SAUNDATTI, PARTLY
ALLOWING THE CLAIM PETITITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4518
MFA No. 101526 of 2014
JUDGMENT
Though the matter is listed for admission, with the
consent of learned counsel for the parties, it is taken up
for final disposal.
2. This appeal is by the claimant challenging the
contributory negligence as well as seeking enhancement of
compensation awarded under judgment and award dated
10.04.2014 in MVC No.2163/2012 by the Senior Civil
Judge and Additional MACT, Saundatti (for short,
'Tribunal'), whereby the claim petition filed by the
appellant is allowed by awarding total compensation of
Rs.2,38,500/-. Being aggrieved by the quantum of
compensation, the claimant is in this appeal.
3. Brief facts of the case are:
On 27.4.2012, the appellant was proceeding on his
motorcycle bearing No.KA-24/H-1307 on
Yallammanagudda-Saundatti road, at that time, Chevrolet
Tavera vehicle bearing No.MH-06/AS-3553 came in a rash
and negligent manner and dashed from rear side of the
NC: 2024:KHC-D:4518
vehicle to the appellant, as a result, he lost control, fell
down and sustained grievous injuries. It is stated that he
was shifted to Government Hospital, Saundatti and took
treatment to fracture of Tibia and Fibula and for the
abrasions on his right great toe, including internal pain
and injury. It is averred that the appellant was earning
Rs.15,000/- per month by doing animal vending business.
Due to the accident, he sustained disability and does not
carry out his business activities.
4. The respondents entered appearance and filed
separate objections denying the claim petition averments.
The insurer contended that the amount claimed by the
appellant is exorbitant and due to the negligence of the
appellant, the accident took place and there is no
negligence on the part of the driver of the Chevrolet
Tavera vehicle. Thus, sought for dismissal of the petition.
5. Tribunal considering the evidence available on
record, partly allowed the claim petition by awarding
compensation of Rs.2,38,500/- under different heads:
NC: 2024:KHC-D:4518
HEADS AMOUNT
(in Rs.)
Pain and suffering 25,000/-
Attendant Food and nutrition 4,500/-
Food and nutrition 9,000/-
Loss of income during laid up period 20,000/-
Loss of income due to disability 1,80,000/-
Total 2,38,500/-
6. Smt. Shaila Bellikatti, learned counsel
appearing for the appellant submits that the Tribunal
committed grave error in awarding meager compensation
to the appellant. It is submitted that the appellant was
doing animal vending business and earning Rs.15,000/-
per month. However, the Tribunal has assessed his income
at Rs.5,000/- per month, which is required to be
reassessed. It is further submitted that Tribunal has failed
to consider the disability of appellant in its proper
prospective, as the Doctor who is examined the appellant
has assessed the disability of the appellant at 40%.
However, the Tribunal has wrongly assessed disability of
the appellant at 20%. It is also submitted that the Tribunal
has not awarded any compensation under the head of loss
NC: 2024:KHC-D:4518
of amenities and the award of compensation under other
heads are also on the lower side. Hence, she seeks to
allow the appeal by modifying the impugned judgment and
award.
7. Per contra, Shri.N.M.Naikwadi, learned counsel
for the respondent No.1 and Shri.S.V.Yaji, learned counsel
for respondent/Insurer supports the impugned judgment
and award of the Tribunal and submits that the Tribunal
taking note of the evidence available on record has rightly
awarded the compensation, which does not call for any
interference in this appeal. Hence, they seek to dismiss
the appeal.
8. Having heard the learned counsel for the parties
and on perusal of the material available on record, the
only point that would arise for consideration in this appeal
is, whether the claimant would be entitled to enhanced
compensation?
9. Answer to the above point would be in the
'affirmative' for the following reasons:
NC: 2024:KHC-D:4518
10. There is no dispute with regard to the
occurrence of the accident on 27.04.2012 and the injuries
suffered by the claimant. The parties to the proceedings
does not dispute that the offending vehicle was insured
with respondent No.2. Admittedly, the appellant has not
placed any cogent and acceptable evidence before the
Tribunal to assess the income of the appellant. In view of
the same, it would be just and appropriate to assess the
notional income of the appellant at Rs.6,500/- per month,
taking note of the income chart prepared by Karnataka
State Legal Services Authorities for the year 2012.
Accordingly, the appellant's income is assessed at
Rs.6,500/- per month. This Court does not find any reason
to interfere with the assessment of the disability by the
Tribunal. This Court is of the view that assessment of
disability is just and proper. There is no dispute with
regard to age of the appellant/claimant as 44 years. The
proper multiplier would be 14. Thus, the claimant would
be entitled to modified compensation under the head of
loss of future income due to disability as under:
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Rs.6,500 x 12 x 14 x 20% = Rs.2,18,400/-
11. The Tribunal committed error in not awarding
the compensation under the head of loss of amenities.
Taking note of the injuries sustained by the appellant and
the duration of his treatment, it would be just and
appropriate to award Rs.30,000/- under the head of loss
of amenities and addition of Rs.6000/- for Food and
nutrition. In so far as award of compensation on other
heads are just and proper and same are unaltered.
12. Thus, the claimant would be entitled to total
compensation on the following heads:
HEADS AMOUNT
(in Rs.)
Pain and suffering 25,000/-
Attendant 4,500/-
Food and nutrition 15,000/-
Loss of income during laid up period 26,000/-
(6500x4)
Loss of amenities 30,000/-
Loss of income due to disability 2,18,400/-
Total 3,18,900/-
Amount awarded by Tribunal 2,38,500/-
Enhancement 80,400/-
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13. Thus, the claimant shall be entitled to total
compensation of Rs.3,18,900/- as against Rs.2,38,500/-
awarded by the learned Tribunal.
14. 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.3,18,900/-
as against Rs.2,38,500/- awarded by
the Tribunal.
c) The enhanced compensation of
Rs.80,400/- 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 interest before the
Tribunal within a period of six weeks
from today.
NC: 2024:KHC-D:4518
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
RKM
