Karnataka High Court
Shankareppa F. Dharwad vs Sri. Madiwalappa Fakirappa Dharwad on 4 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:198
MFA No. 23154 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.23154 OF 2011 (MV-I)
BETWEEN:
SHANKAREPPA F.DHARWAD,
AGE: 46 YEARS, OCC: NIL,
R/O: KALLE VILLAGE,
TQ. AND DIST. DHARWAD.
...APPELLANT
(BY SRI. PRASHANT S.KADADEVAR, ADVOCATE)
AND:
1. SRI. MADIWALAPPA FAKIRAPPA DHARWAD
AGE: MAJOR, OCC: BUSINESS,
R/O: KALLE VILLAGE,
TQ. AND DIST. DHARWAD.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
CLUB ROAD, BELAGAVI.
...RESPONDENTS
Digitally (BY SRI. N.R. KUPPELUR, ADVOCATE FOR R2;
signed by
BHARATHI R1 SERVED)
BHARATHI H M
HM Date:
2024.01.09 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
10:35:51
+0530 SECTION 173(1) OF M.V. ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED 26.04.2011, PASSED IN M.V.C. NO.1463/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE & ADDL. M.A.C.T,
BAILHONGAL AT BAILHONGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:198
MFA No. 23154 of 2011
JUDGMENT
Heard Sri. Prashant S. Kadadevar, learned counsel for
the appellant and Sri. N R. Kuppelur, learned counsel for
respondent No.2/Insurance Company.
2. This appeal is filed by the claimant seeking
enhancement of compensation in respect of road traffic
accident said to have occurred on 29.11.2008 at 11.00 A.M
involving the goods tempo bearing Reg. No.KA-25/A-3425
and tractor bearing Reg. No.KA-24/T-1108.
3. The accident is established by placing necessary
evidence on record. The claimant is an injured, who was
traveling in the goods tempo.
4. The claim petition is under Section 163(A) of the
Motor Vehicles Act, 1988 and the Tribunal has considered the
relevant materials on record and took 5% of the total
disability though 45% have been assessed in the disability
certificate insofar as the claimant is concerned.
5. Sri. Prashant S. Kadadevar, learned counsel for
the claimant/appellant vehemently contended that taking 5%
NC: 2024:KHC-D:198
of the disability as against 45% assessed in the disability
certificate has resulted in miscarriage of justice and sought
for allowing the appeal.
6. Per contra, Sri. N R. Kuppelur, learned counsel
representing the Insurance Company opposes the appeal
grounds by contending that the Tribunal has granted more
than what is contemplated under the provisions of Section
163(A) of the Motor Vehicles Act and therefore, appeal needs
to be dismissed.
7. Perused the material on record meticulously in
view of the rival contention of the parties.
8. In the absence of treating doctor being
examined, usually the Court would assess 1/3rd of the
disability factor shown in the disability certificate. Applying
the said settled practice to the case on hand, assessment of
the disability at 5% by the Tribunal has resulted in the
miscarriage of justice. Instead of reworking the amount of
compensation as is ordered by the Tribunal, by reducing on
the other heads and enhancing by reassessing the disability
NC: 2024:KHC-D:198
factor, enhancing the compensation in another Rs.20,000/-
globally would meet the ends of justice.
9. Accordingly, the following order is passed:
ORDER
a) Appeal is allowed. As against the sum of
Rs.84,000/- compensation awarded by the
Tribunal, the appellant would be entitled to sum
of Rs.1,04,000/- with interest at 6% per annum
from the date of petition till date of realization.
b) The balance amount to be deposited by the
Insurance Company within four weeks from
today.
Sd/-
JUDGE
PMP
