Karnataka High Court

Shailendra @ Sikandar vs Ramdas And Anr on 1 July, 2024

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                                                   NC: 2024:KHC-K:4439-DB
                                                          MFA No.201155 of 2019



                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 1ST DAY OF JULY, 2024

                                              PRESENT

                             THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                                 AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                           MISCL. FIRST APPEAL NO.201155 OF 2019 (MV-I)


                      BETWEEN:

                      SHAILENDRA @ SIKANDAR
                      S/O MARUTI JYOTI,
                      AGE: 28 YEARS,
                      OCC: LORRY DRIVER,
                      R/O: MARKUDA VILLAGE,
                      TQ: & DIST: BIDAR.
                                                                    ...APPELLANT

                      (BY SRI B. ALI MOHAMAD, ADVOCATE)

Digitally signed by
BASALINGAPPA
                      AND:
SHIVARAJ
DHUTTARGAON
Location: HIGH        1.   RAMDAS
COURT OF
KARNATAKA                  S/O WAMANRAO DHAWADE,
                           AGE: 58 YEARS,
                           OCC: OWNER OF THE ASHOK LEYLAND LORRY
                           BEARING REG.NO.MH.42/T-779,
                           R/O: AP BHIGAWAN SAI NAGAR,
                           TQ: INDAPUR,
                           DIST: PUNE (MAHARASHTRA STATE)

                      2.   I.C.I.C.I LOMBARD
                           GENERAL INSURANCE CO., LTD.,
                           NEAR OPP. S.B.H., STATION BAZAR,
                           DIST. COURT ROAD,
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                                    NC: 2024:KHC-K:4439-DB
                                           MFA No.201155 of 2019



     KALABURAGI - 585 102.
                                                   ...RESPONDENTS

(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
    V/O. DTD. 30.01.2024 NOTICE TO R1 IS DISPENSED
    WITH)

         THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
IN M.V.C. NO.677/2016 ON THE FILE OF I ADDITIONAL
SENIOR CIVIL JUDGE AND M.A.C.T., AT KALABURAGI AND THE
IMPUGNED       JUDGMENT     AND     AWARD     DATED     07.06.2018
PASSED IN M.V.C.NO.677/2016 ON THE FILE OF THE COURT
OF   I    ADDITIONAL     SENIOR    CIVIL   JUDGE    AND    M.A.C.T.,
KALABURAGI         MAY     BE      MODIFIED        BY     GRANTING
COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND
THIS MISCELLANEOUS FIRST APPEAL MAY BE ALLOWED AS
PRAYED WITH COST, IN THE INTEREST OF JUSTICE AND
EQUITY.


         THIS MFA COMING ON FOR ADMISSION THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:


                           JUDGMENT

This Miscellaneous First Appeal is filed under Section

173(1) of Motor Vehicles Act, 1988 by the petitioner

challenging the judgment and award dated 07.06.2018 in

MVC No.677/2016 passed by the learned I Addl. Senior

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Civil Judge & MACT, Kalaburagi (for short, 'the Tribunal')

seeking enhancement of compensation.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is the petitioner and the

respondents are the respondents before the Tribunal.

3. Brief facts leading to rise filing of this appeal

are as under:

That on 01.10.2013, the petitioner was driving his

Lorry bearing Reg.No.AP-09/TA-0185 from Surat to

Hyderabad with a load of clothes. At that time, a Lorry

bearing Reg.No.MH-42/T-779 driven by its driver in a rash

and negligent manner came from wrong side i.e., from

Tuljapur side and dashed to his Lorry. As a result of which,

he sustained grievous injuries and immediately he was

shifted to Govt. General Hospital, Osmanabad and later for

further treatment he was shifted to Apex Hospital, Bidar.

The petitioner has spent huge amount towards his medical

treatment. The petitioner was hale and healthy as on the

date of the accident. After the accident, the petitioner has

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suffered permanent disability and he could not do his day-

to-day work. Hence, the petitioner filed a claim petition

under Section 166 of M.V.Act claiming compensation of

Rs.56,75,000/-.

4. The respondent No.1 filed written statement

denying the age, occupation and income of the petitioner.

It is contended that the driver of the offending vehicle was

holding a valid and effective driving license as on the date

of the accident. It is contended that the said vehicle was

insured with the respondent No.2 and contended that the

respondent No.1 is not liable to pay compensation to the

petitioner and prayed to dismiss the petition against the

respondent No.1.

5. The respondent No.2 filed written statement

denying the averments made in the claim petition and

contended that the driver of the offending vehicle was not

possessing valid and effective driving license as on the

date of the accident. Hence, the Insurance Company is not

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liable to pay compensation. Accordingly, prayed to dismiss

the claim petition.

6. The Tribunal, on the basis of the pleadings of

the parties framed relevant issues. The petitioner, in order

to prove his case examined himself as PW.1 and in order

to prove the disability, examined the doctor as PW.2 and

produced the documents as Exs.P1 to P12. Respondent

No.2 examined its official as RW.1 and got marked two

documents as Exs.R.1 and 2. The Tribunal, after recording

the evidence, hearing on both sides and on the

assessment of oral and documentary evidence, answered

issue No.1 in the affirmative, issue No.2 in the negative,

issue No.3 partly affirmative and issue No.4 as per final

order. The claim petition was partly allowed and the

Tribunal ordered that the petitioner is entitled to a total

compensation of Rs.6,17,200/- along with interest @ 6%

p.a. It is held that the respondents are jointly and

severally liable to compensation and further directed the

respondent No.2-Insurer to deposit the compensation

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amount within a period of one month from the date of

award. The petitioner being dissatisfied with the

compensation awarded by the Tribunal, filed this appeal

seeking enhancement of compensation.

7. Heard the learned counsel for the petitioner and

also learned counsel for respondent No.2-Insurance

Company.

8. Learned counsel for the petitioner submits that,

in order to prove the disability of the petitioner, examined

the doctor as RW.2, who opined that the petitioner has

suffered permanent disability of 40% to the whole body

and accordingly issued the disability certificate as per

Ex.P8. However, the Tribunal has assessed the disability at

15%, which is on the lower side. He also submits that the

compensation awarded under the other heads is also on

the lower side. Accordingly, he prays to allow the appeal.

9. Per contra, learned counsel for the respondent

No.2-Insurance Company supports the impugned

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judgment and award passed by the Tribunal and submits

that the Tribunal was justified in assessing the disability at

15% to the whole body. Hence, on these grounds, he

prays to dismiss the appeal.

10. Perused the records and considered the

submissions of the learned counsel for the parties. The

point that arises for our consideration is quantum.

11. It is not in dispute that the petitioner met with

an accident and sustained grievous injuries. In order to

prove that the accident was occurred due to rash and

negligent driving by the driver of the offending Lorry, the

petitioner has produced the certified copies of FIR and

charge sheet, which are marked at Exs.P1 and P3.

12. Insofar as quantum of compensation, the

petitioner has contended that prior to the accident he was

hale and healthy, aged about 26 years and he was working

as a Driver and earning Rs.12,000/- p.m. In order to

substantiate his income, the petitioner has not produced

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any income proof. In the absence of such income proof,

the Tribunal has taken the notional income at Rs.7,000/-

p.m. as per the guidelines issued by the Karnataka State

Legal Services Authority. The notional income assessed by

the Tribunal is just and proper and does not call for any

interference.

13. In order to prove the disability, the petitioner

examined the doctor as PW.2, who opining that the

petitioner has suffered permanent disability of 40% to the

whole body, has issued disability certificate at Ex.P.8 as

per the Guidelines issued by the Ministry of Social Justice

and Empowerment, Govt. of India, in the month of June,

2001.

14. The injuries mentioned in the disability

certificate are as under:

"1. There is malunited fracture of both femur with implants in situ in both femur. There is 2.5 CM bone gap at fracture sites of both femur. There is fibrous scar healed secondary of old cut lacerated wound ... 35%.

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2. There is true shortening of femur by 3.5 cm when compared with both femur. This resulting in short lump gait ...15%.

3. There is malunitd fracture of both medial malleoli with malunion of both lower ends of fibulas' resulted in antalgic part of right ankle joint ... 10%.

4. There is fracture dislocations of navicular medial cunniform both of foot right found clinically resulting in medial border of foot right is reduced by 2 cm and right forefoot of grit is painful ...15%.

5. Hence, patient cannot walk fast nor run, cannot do heavy manual work. Total disability of lower limbs - 75% and 40% to the whole body".

15. However, the Tribunal has assessed the

disability at 15% to the whole body, which is on the lower

side. Considering the evidence of PW.2 and nature of

injuries sustained by the petitioner, we are of the opinion

that the disability has to be enhanced to 20%. The

petitioner is aged 26 years at the time of the accident and

multiplier applicable to his age group is '17' which is

rightly taken by the Tribunal. Thus, the petitioner is

entitled for compensation of Rs.2,85,600/- (Rs.7,000/- x

12 x 17 x 20%) on account of 'loss of future income'.

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16. Considering the evidence of PW-2, disability

certificate and taking note of other aspects, the

compensation is re-assessed under different heads as

under:

Sl.

                          Heads                            Amount
            No.
                    Towards pain and
            1.                                        Rs.75,000/-
                    sufferings
                    Towards medical
            2.                                       Rs.2,62,000/-
                    expenses
                    Towards future
            3.                                        Rs.40,000/-
                    income
                    Towards food and
                    extra nourishment
            4.                                        Rs.25,000/-
                    and medical
                    attendant charges

                    Towards conveyance
            5.                                        Rs.20,000/-
                    charges

                    Towards loss of
            6.      income during the                 Rs.21,000/-
                    period of treatment
                    Towards permanent
            7.                                       Rs.2,85,600/-
                    disability

                    Deprivation of future
            8.                                        Rs.30,000/-
                    amenities
                          Total                    Rs.7,58,600/-


      17.     The      petitioner      is    entitled      for   a    total

compensation of Rs.7,58,600/- as against Rs.6,17,200/-

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awarded by the Tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.1,41,400/ with

interest @ 6% p.a.