Karnataka High Court
The Branch Manager vs Shri.Venkobanna S/O Gururaj Shresty on 3 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 100709 of 2021
C/W MFA No. 101174 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO. 100709 OF 2021 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101174 OF 2020
IN M. F. A. NO. 100709 OF 2021
BETWEEN:
VENKOBANNA
S/O. GURURAJ SHRESTRY SIRIGERI
AGE. 44 YEARS, OCC. CONTRACTOR
AND AGRICULTURE,
R/O. WARD NO.17, GANGAVATI,
DIST. KOPPAL,
NOW AT: KAMALAPUR ONI, DHARWAD.
...APPELLANT
(BY SRI. ANAND BAGEWAD, ADVOCATE FOR
SRI. SANJAY CHANAL, ADVOCATE)
AND:
1. MARUTI S/O. GOVINDAPPA RAYACHUR
Digitally
signed by AGE. MAJOR, OCC. PRIVATE JOB,
BHARATHI
BHARATHI H M
R/O. H.NO.4-6-76, KEHAR ONI,
HM Date: GANGAVATHI, DIST. KOPPAL. PIN-583227
2024.01.11
11:41:14 (OWNER OF THE CAR BEARING ITS REG.NO.
+0530 KA-03/MN-51867)
2. THE BRANCH MANAGER
FUTURE GENERAL INDIA
INSURANCE CO. LTD.,
NO. 165/5D, IIND FLOOR,
KALBURGI LANDMARK SCHOOL
NEAR PB ROAD, HUBBALLI-580029.
...RESPONDENTS
(BY SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
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MFA No. 100709 of 2021
C/W MFA No. 101174 of 2020
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 28.11.2019 PASSED IN MVC
NO.932/2015 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M. F. A. NO. 101174 OF 2020
BETWEEN:
THE BRANCH MANAGER,
FUTURE GENERAL INDIA
INSURANCE COMPANY LTD.,
NO. 165/5 D, IIND FLOOR,
KALBURGI LANDMARK SCHOOL
NEAR P.B. ROAD, HUBALI
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. SHRI. VENKOBANNA S/O. GURURAJ SHRESTY SIRIGERI,
AGE. 44 YEARS, OCC. CONTRACTOR AND
AGRICULTURE,
R/O. GANGAVATHI, DIST. KOPPAL,
PRESENTLY R/AT: KAMALAPUR,
KUMBAR ONI, DHARWAD-580001.
2. SHRI. MARUTI S/O. GOVINDAPPA RAYACHUR,
AGE. MAJOR, OCC. PRIVATE JOB,
R/O. H.NO.4-6-76, NEKAR ONI,
GANGAVATHI, DIST. KOPPAL.
(OWNER OF THE CAR BEARING ITS REG.NO.
KA-03/MN-51867) 583227.
...RESPONDENTS
(BY SRI. ANAND BAGEWAD, ADVOCATE FOR
SRI. SANJAY CHANAL, ADVOCATE R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 28.11.2019 PASSED IN MVC
NO.932/2015 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 100709 of 2021
C/W MFA No. 101174 of 2020
THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of the validity of
judgment and award passed in MVC No.932/2015 on the
file of IV Additional Senior Civil Judge and Additional Motor
Accident Claims Tribunal, Dharwad dated 28.11.2019.
2. Facts in brief which are utmost necessary for
disposal of this case are as under:
2.1 In respect of a road traffic accident occurred on
05.03.2015 at about 3.15 a.m. involving a car bearing
No.KA-03/MN-5187, a claim petition came to be filed by
the claimant Sri.Venkobanna claiming compensation in a
sum of Rs.25,00,000/- with interest t 18% p.a.
2.2 The claim petition averments reveal that
Sri.Maruti was driving the said car in a rash and negligent
manner without following the requisite rules and on
account of his rash and negligent driving, the car got
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toppled near Hill View restaurant while car was proceeding
from Goa to Gangavathi. The injured persons were shifted
to Civil Hospital, Dharwad and thereafter to SDM Hospital
for further treatment. On account of the accidental
injuries, the claimant was required to undergo surgery on
18.03.2015. It is further contended that the claimant was
a contractor and agriculturist having monthly income of
Rs.35,000/- and he was also an income tax assessee.
2.3 Upon receipt of notice of claim petition, the
driver of the car did not appear before the Tribunal and he
was placed exparte. Respondent No.2 - Insurance
Company appeared before the Tribunal and resisted the
claim petition by denying the contentions urged in the
claim petition including the monthly income and nature of
injuries sustained by the claimant. The Tribunal raised
necessary issues.
2.4 In order to prove the case of the claimant,
claimant got examined himself as PW.1 and doctor who
treated the injured as PW.2. The claimant placed on record
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eighteen documents which were exhibited and marked as
Exs.P.1 to P.18 comprising of FIR, complaint, charge
sheet, spot panchanama, IMV report, wound certificate,
record of rights, medical bills, discharge summary, X-ray,
tax paid receipt, disability certificate and assessment
proforma. As against the evidence on record, no evidence
is placed by the respondents either oral or documentary.
2.5 On conclusion of recording of evidence, the
Tribunal assessed the material evidence on record in a
cumulative manner and allowed the claim petition in part
by granting compensation of Rs.6,38,500/-.
3. Being aggrieved by the quantum of
compensation, both the Insurance Company as well as
claimant have filed appeals.
4. Sri.S.K.Kayakamath, learned counsel for the
Insurance Company reiterating the grounds urged in the
appeal memorandum, contended that the Tribunal has
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wrongly assessed the quantum of compensation and
sought for modification of the award.
5. Per contra, Sri.Sanjay Chanal contended that
the claimant is an income tax assessee and has placed on
record additional evidence by filing an application under
Order XLI Rule 27 of Code of Civil Procedure to place on
record the income tax returns for the relevant years and
sought for enhancement of compensation.
6. This Court bestowed its attention to the rival
contentions of the parties by perusing the material on
record meticulously including the additional evidence
sought to be produced before the Court.
7. In view of the rival contentions, the following
points would arise for consideration:
i. Whether the claimant has made out a case
for placing additional evidence on record?
ii. Whether claimant has made out a case for
enhancement of compensation?
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iii. Whether the Insurance Company has made
out a case for reduction of compensation?
iv. Whether the impugned judgment and
award is suffering from legal infirmity,
perversity?
v. What order?
Reg.Point No.i
8. In the case on hand, additional evidence sought
to be placed are income tax returns of the relevant years.
It is to be noted that the claimant for the reasons best
known, did not place those documents before the Tribunal
though they were available with him. It is settled
principles of law that additional evidence cannot be
accepted by the Appellate Court only to plug the loopholes
of the case of a party. This Court is of the considered
opinion that the additional evidence now sought to be
produced without there being any proper and cogent
explanation for non-production of the same before the
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Tribunal, cannot be taken on record. Hence, point No.1 is
answered in negative.
Reg.Points No.ii, iii & iv
9. In the absence of additional evidence, this
Court has to now consider the question of quantum of
compensation. Since the accident and injuries sustained by
the claimant is not disputed, the only point that needs to
be considered is whether the quantum of compensation
awarded by the Tribunal is just and proper?
10. In the case on hand, the medical records and
the disability certificate has been taken into account by the
Tribunal while assessing the compensation and has
awarded Rs.1,00,000/- towards pain and suffering and
Rs.50,000/- towards loss of amenities. Compensation
towards medical expenses and loss of income during laid
up period is properly assessed by the Tribunal. Towards
nourishment and attendant charges, Rs.20,000/- has been
awarded and taking note of disability certificate, loss of
future income is assessed at Rs.3,15,000/-.
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11. It is now settled principles of law that while
assessing the income, the Court has to resort to guess
work in estimating the monthly income and the disability
certificate placed on record by the injured. In the case on
hand, no doubt the treating doctor has been examined as
PW.2. Disability certificate is marked at Ex.P.15. On
perusal of the same, it is seen that the claimant has
suffered 7% disability to whole body. Considering the
same, loss of future income is assessed at Rs.3,15,000/-.
The same is on higher side taking note of the fact that the
claimant is a contractor and agriculturist. However, the
compensation awarded towards nourishment and
attendant charges and loss of income during laid up period
and loss of amenities is on lower side. Reducing the
compensation on the head of loss of future income and
enhancing the compensation on the other heads would be
one and the same and it would only result in futile exercise
in reassessing the compensation.
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12. As such, on overall consideration, the quantum
of compensation assessed by the Tribunal taking 7%
disability to whole body, in the considered opinion of this
Court is more or less just and proper compensation.
13. Therefore, no case is made out either by the
claimant or by the Insurance Company to enhance or
reduce the compensation. Hence, points No.2, 3 and 4 are
answered in negative.
Reg.Point No.v
14. In view of findings on points No.1 to 4,
following order is passed:
ORDER
(i) Appeal filed by Insurance Company in MFA
No.101174/2020 and appeal filed by claimant in
MFA No.100709/2021 are hereby dismissed.
(ii) No order as to cost.
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(iii) Amount in deposit, if any, is ordered to be
transmitted to the concerned Tribunal forthwith
for disbursement.
Sd/-
JUDGE
SH
