Karnataka High Court
Vishal vs Ashwin Nandkumar Raghoji And Ors on 28 February, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-K:1804-DB
MFA No.202008 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.202008 OF 2023 (MV-I)
BETWEEN:
VISHAL
S/O ARUN DEOKATE
AGE: 31 YEARS,
OCC: DRIVER, NOW NIL
R/O. KONHERI, TALUK: MOHOL,
DIST: SOLAPUR
NOW R/O ARAKERI,
TQ: AND DIST : VIJAYAPUR - 586 103.
...APPELLANT
Digitally signed (BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
by VARSHA N
RASALKAR
Location: HIGH
COURT OF
AND:
KARNATAKA
1. MR. ASHWIN NANDKUMAR RAGHOJI
PROP: ASHWIN TRADING CO.,
PHILIPS FACTORY ROAD
P.O LONIKALBHOR, TQ: HAVELI
DIST: PUNE - 411 001
(OWNER OF TRUCK BEARING
NO.MH-12 DT - 4868)
2. THE MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
GURUKUL ROAD, VIJAYAPURA - 586 101.
-2-
NC: 2024:KHC-K:1804-DB
MFA No.202008 of 2023
3. SATRUGU CARRIES PROP.
RAJKUMAR V. NANDWANI,
380 KAMAL MOTORS THANE
NASHIK BYPASS AT-SARAVALI VLG
TQ: BHIWANDI THANE BULKER - 421 302
(OWNER OF TRUCK BEARING
NO.MH-04-GR-8962)
4. THE MANAGER LEGAL,
THE BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.,
MADIWALE COMPLEX, CLUB ROAD,
BELGAUM - 590 002.
...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE FOR R2;
V/O DATED 19.02.2024 NOTICE TO R1, R3 AND R4
ARE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED: 21.11.2022 PASSED IN M.V.C. NO.370/2020
ON THE FILE COURT OF THE II ADDL. SENIOR CIVIL JUDGE
AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII,
VIJAYAPURA AT VIJAYAPURA AND ALLOW THIS APPEAL BY
ENHANCING THE COMPENSATION AMOUNT OF RS.22,50,799/-
ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE
COURT IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS MFA COMING ON FOR ADMISSION THIS DAY
K V ARAVIND J., DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-K:1804-DB
MFA No.202008 of 2023
JUDGMENT
Though appeal is listed for admission, with consent of
both learned counsel heard for final disposal.
This appeal by the claimant seeking enhancement of
compensation not being satisfied with the judgment and
award dated 21.11.2022 passed in MVC No.370/2020 on
the file of the II-Addl. Senior Civil Judge & MACT-VII,
Vijayapura.
2. The claimant filed petition under Section 166 of
the Motor Vehicles Act, 1988 (for short, 'the Act') claiming
compensation for accidental injuries sustained on
26.10.2019 involving three trucks bearing Reg. No.
MH-04/GR-8962, Reg.No.MH-12/DT-4868 and Reg. No.
NL-01/AC-1133.
3. It is stated that the petitioner was working as
driver. While driving truck bearing Reg.No.MH-04/GR-
8962, a truck bearing Reg.No.MH-12/DT-4868 came from
opposite direction and dashed the truck driven by the
NC: 2024:KHC-K:1804-DB
petitioner and also dashed to another truck bearing
Reg.No.NL-01/AC-1133. Due to the impact petitioner
sustained grievous injuries. It is stated that the petitioner
spent Rs.6,50,000/- for treatment. He was earning
Rs.15,000/- per month and was aged 29 years as on the
date of the accident.
4. On issuance of notice, respondent Nos.1 and 3
did not appear and were placed ex parte before the
Tribunal.
5. Respondent Nos.2 and 4 appeared through their
respective counsels and filed statement of objections.
6. Respondent No.2-insurer admitted the policy to
truck bearing Reg.No.MH-12/DT-4868 and alleged that
accident occurred due to rash and negligent driving by the
claimant-petitioner himself. Respondent No.4 insurer of
truck bearing Reg.No.MH-04/GR-8962 though admitted
policy alleged breach of policy conditions.
NC: 2024:KHC-K:1804-DB
7. The Tribunal on the pleadings, framed the
following issues:
1. Whether the petitioner proves that the accident
alleged in the petition occurred due to culpable
rash and negligent driving by the drivers of Truck
bearing Reg.No.MH-12/DT-4868 and Bulker
Truck No.MH-04/GR-8962 and on account of the
said accident, the petitioner sustained injuries?
2. Whether the respondent No.2 proves that there
was violation of policy conditions and as such it is
not liable to pay compensation?
3. Whether the respondent No.4 further proves that
this tribunal is having no territorial jurisdiction to
try and entertain the petition?
4. Whether the petitioner is entitled for the
compensation? If so what rate and from whom?
5. What order or award?
8. The petitioner examined himself as PW.1 and
examined another witness as PW.2 and got marked Exs.P1
to P22. No evidence was recorded on behalf of the
respondents.
NC: 2024:KHC-K:1804-DB
9. The Tribunal concluded that accident occurred
due to rash and negligent driving of the driver of the truck
bearing Reg.No.MH-12/DT-4868 and fastened liability on
respondent No.2. The Tribunal while awarding
compensation considered the monthly income of the
claimant at Rs.13,250/- and age of the claimant as 29
years and applied multiplier at '17'. The Tribunal awarded
total compensation of Rs.7,99,201/- under various heads
as under:
Sl. Compensation
Different heads
No. Amount
1 Pain & sufferings Rs.40,000-00
2 Medical expenses Rs.4,62,961-00
Loss of earning during laid up
3 Rs.30,000-00
period
Loss of future earning on account Rs.2,16,240-00
of permanent disability
Loss of amenities and future
5 Rs.20,000-00
unhappiness
Attendant, diet, conveyance and
6 Rs.30,000-00
others charges
Total Rs.7,99,201-00
NC: 2024:KHC-K:1804-DB
10. Heard Sri C. L. Koujalagi, the learned counsel
for the appellant and Sri Sharanabasappa M. Patil, the
learned counsel for respondent No.2/insurer.
11. The learned counsel for the appellant submits
that due to the accident, the claimant has suffered crush
injury to right lower limb with type IIIB fracture of tibia
and fibula and treated through debridement, external
fixation application, multiple procedures, skin cross leg
flap internal fixation of tibia and fibula with plate, nail and
screw. It is further submitted that PW.2/Doctor has
assessed physical disability at 24%, but the Tribunal
committed an error in considering the disability at 8%. It
is further submitted that the amount awarded under
various head is also on the lower side. Thus, prays to
enhance the compensation.
12. The learned counsel for the insurer submits that
PW.2 is not a treated doctor. The Tribunal by considering
the permanent physical disability assessed by PW.2 at
24% to right lower limb and the evidence of PW.2 has
NC: 2024:KHC-K:1804-DB
rightly assessed disability at 8%. It is further submitted
that in the absence of any proof of income, the Tribunal
justified in assessing income of the petitioner notionally.
The compensation awarded by the Tribunal is just and
proper. Thus, prays to dismiss the appeal.
13. Having heard the learned counsel for the
parties, perusal of the appeal papers, the point that arise
for our consideration is:
"Whether the compensation awarded by the
Tribunal needs re-assessment?"
14. Our answer to the above point is in the
affirmative for the following reasons.
15. PW.2/doctor has examined the petitioner and
has issued disability certificate as per Ex.P21. Though the
doctor has not treated the petitioner, the physical
disability has been assessed on the basis of the wound
certificate and discharge summary issued by Shivam
Hospital, Pune. Further, assessment is made on the basis
NC: 2024:KHC-K:1804-DB
of the certificates issued by the Jaihind Hospital, Pune and
Shaikh Institute of Orthopedic Centre Trauma, Miraj. As
per Ex.P21 disability certificate, the petitioner has suffered
IIIB fracture of tibia and fibula. Due to which the
movement is restricted, facing difficulty in climbing stairs,
sitting cross leg, difficulty in squatting. On the basis of the
above, PW.2 has assessed disability at 24%. The doctor
has only stated permanent disability. The doctor has not
assessed the whole body disability. Hence, the Tribunal
has taken the disability at 8%. By considering the material
evidence on record, the evidence deposed by the PW.2
and Ex.P21, we are of the view that whole body disability
is to be assessed at 9%. Considering the age of the
petitioner, applicable multiplier and the notional income
assessed by the Tribunal is correct and maintained.
Therefore, loss of future income due to permanent
physical disability is worked out to Rs.2,43,270/-
(Rs.13,250/- x 12 x 17 x 9%).
- 10 -
NC: 2024:KHC-K:1804-DB
16. Due to the injuries suffered the compensation
awarded at Rs.40,000/- towards pain and suffering is on
the lower side. We are of the view that the compensation
under the head pain and suffering is to be awarded at
Rs.50,000/-.
17. Due to the injuries suffered in the accident as
stated by the PW.2, the petitioner has restriction in
movement of right knee, difficulty in climbing stairs,
walking on slope, sitting cross leg and difficulty in
squatting, considering the above difficulties, the
compensation of Rs.20,000/- awarded under the head loss
of amenities and future happiness is on the lower side, we
deem it appropriate to award a sum of Rs.40,000/-
against Rs.20,000/- as awarded by the Tribunal.
18. Thus, for the aforesaid reasons, the total
compensation is re-assessed as under:
- 11 -
NC: 2024:KHC-K:1804-DB
Amount Amount
Sl. awarded by awarded by
Different heads
No. the Tribunal this Court
1 Pain & sufferings Rs.40,000/- Rs.50,000/-
2 Medical expenses Rs.4,62,961/- Rs.4,62,961/-
3 Loss of earning Rs.30,000/-
Rs.30,000/-
during laid up period
Loss of future earning
4 on account of Rs.2,16,240/- Rs.2,43,270/-
permanent disability
5 Loss of amenities and Rs.40,000/-
Rs.20,000/-
future unhappiness
Attendant, diet,
6 conveyance and Rs.30,000/- Rs.30,000/-
others charges
Total Rs.7,99,201/- Rs.8,56,231/-
Enhancement Rs.57,030/-
19. Thus, the claimant would be entitled to total
compensation of Rs.8,56,231/- as against Rs.7,99,201/-
awarded by the Tribunal.
20. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award dated
21.11.2022 passed in MVC No.370/2020 on
the file of the II-Addl. Senior Civil Judge &
- 12 -
NC: 2024:KHC-K:1804-DB
MACT-VII, Vijayapura, is modified to an
extent that the claimant is entitled to total
compensation of Rs.8,56,231/- as against
Rs.7,99,201/- awarded by the Tribunal.
(iii) The enhanced compensation amount shall
bear interest at the rate of 6% per annum
from the date of petition till its realization.
(iv) Respondent No.2-Insurer shall deposit the
said amount within eight [8] weeks from the
date of receipt of a certified copy of this
judgment along with interest at the rate of
6% per annum from the date of petition till
the date of deposit.
(v) The deposit and the disbursement shall be
made as per the award of the Tribunal.
(vi) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
SDU
CT: CS
