Karnataka High Court

Shrishail vs Muragesh And Anr on 2 July, 2024

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                                                  NC: 2024:KHC-K:4463-DB
                                                       MFA No. 201473 of 2021




                                 IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                               DATED THIS THE 2ND 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. 201473 OF 2021 (MV-I)

                      BETWEEN:

                      SHRISHAIL
                      S/O MALLAPPA BHAIRASHETTI,
                      AGE: 29 YEARS, OCC:AGRICULTURE,
                      GRADUATE PERSON,ATTENDING COACHING
                      CLASSES OF KPSC AND UPSC EXAMS,
                      R/O DOMANAL, TQ AND DIST.VIJAYAPURA,
                      DUE TO HEAD INJURY, UNABLE TO UNDERSTAND
                      WORDLY AFFAIRS AND MOVE FROM THE BED,
                      PRESENTED BY HIS GUARDIAN MOTHER
                      SMT. SUSHILABAI
Digitally signed by   W/O MALLAPPA BHAIRASHETTY,
BASALINGAPPA
SHIVARAJ              AGE: 54 YEARS, OCC.H.H.WORK,
DHUTTARGAON           R/O DOMANAL, TQ AND DIST.VIJAYAPURA- 586 103.
Location: HIGH
COURT OF
KARNATAKA                                                         ...APPELLANT
                      (BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)

                      AND:

                      1.   MURAGESH
                           S/O YALAGURI PATTANSHETTI,
                           AGE: 39 YEARS, OCC: BUSINESS,
                           R/O H.NO.112, GANGA NILAYA
                           VIDHYA NAGAR, OPP.BLDEA HOSPITAL,
                           VIJAYAPURA - 586 101.
                           (OWNER OF CAR NO.KA-28/M-9969)
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                                NC: 2024:KHC-K:4463-DB
                                       MFA No. 201473 of 2021




2.   THE CHIEF EXECUTIVE OFFICER
     THE BHARTI AXA GENERAL
     INSURANCE COMPANY LIMITED,
     1ST FLOOR, FERNS ICON,
     SURVEY NO.28, DODDANAKUNDI VILLAGE,
     K.R.PURAM HOBLI, BANGALORE-560 037.

                                       ...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH)

      THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 10.06.2021
PASSED IN MVC NO.325/2017 ON THE FILE OF THE COURT OF
THE IV ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT
VIJAYAPURA.     AND ALLOW THIS APPEAL TO GRANT THE
COMPENSATION      AMOUNT     BY      RS.84,35,922/-    ONLY     AS
CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE Court. IN
THE INTEREST OF JUSTICE AND EQUITY.


      THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:



                        JUDGMENT

This miscellaneous first appeal is filed by the

petitioner challenging the judgment and award dated

10.06.2021 passed in MVC No.325/2017 by the IV Addl.

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District and Sessions and MACT-XIII, Vijayapura,

(hereinafter referred to as 'the Tribunal', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims Tribunal.

Appellant is the petitioner and the respondents are the

respondents.

3. The facts giving rise to filing of this appeal

briefly stated are that, on 28.12.2016 at about 7.30 a.m.,

the petitioner was proceeding on a motorcycle bearing

registration No.KA-28/EJ-9888. At that time, the

respondent No.1 being the driver of car bearing

registration No.KA-28/M-9969 came from Solapur side

with a high speed in a rash and negligent manner and

dashed to the motorcycle of the petitioner by causing

accident. Due to the said accident, the petitioner sustained

grievous injuries and the accident was occurred due to

rash and negligent driving by the driver of the offending

vehicle. The petitioner has spent huge amount towards

medical expenses. The petitioner is aged about 25 years

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and working as self-employee and earning monthly income

of Rs.15,000/- per month. After the accident, the

petitioner could not able to do work as he was doing

before the accident. Hence, the petitioner filed claim

petition under Section 166 of M.V. Act seeking

compensation of Rs.86,90,000/- with interest @ 18% p.a.

for having sustained injuries in the road traffic accident

and accordingly prays to allow the claim petition.

4. Respondent No.1 filed the written statement

denying the averments made in the claim petition. It is

contended that, the vehicle was insured with the

respondent No.2, at the time of accident policy was also

valid. In case the compensation is awarded the

respondent No.2 is liable to indemnify the respondent No.1

and prayed to dismiss the claim petition against

respondent No.1.

5. Respondent No.2 filed the written statement

denying the averments made in the claim petition and

contended that the driver was not possessing the valid and

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effective driving license as on the date of accident. Hence,

respondent No.1 had violated the terms of insurance

policy. Respondent No.2 is not liable to pay the

compensation and prayed to dismiss the claim petition.

6. The Tribunal on the basis of rival pleadings of

the parties framed the issues for its consideration.

7. In order to substantiate the case, petitioner got

examined PW.1 to 4 and got marked 20 documents as

Exs.P1 to 20. The respondents did not examine any

witnesses. The respondent No.2 got marked insurance

policy as Ex.R1, but has not led any oral evidence.

8. The Tribunal, after recording the evidence,

hearing on both sides and on the assessment of oral and

documentary evidence answered issue Nos.1 and 3 in the

affirmative, issue No.2 in the negative, issue No.4 as per

the final order. The Tribunal allowed the claim petition in

part with costs. It is ordered that the petitioner is entitled

for compensation of Rs.2,54,078/- with interest @ 6% p.a.

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from the date of petition till its realization and held that

respondent Nos.1 and 2 are jointly and severally liable to

pay the compensation to the petitioner. Respondent No.2

was directed to deposit the entire compensation amount

with accrued interest within 30 days from the date of

judgment.

9. Being dissatisfied with the compensation

awarded by the Tribunal, the petitioner has filed the

present appeal seeking enhancement of the compensation

amount.

10. We have heard the learned counsel for the

petitioner and also learned counsel for respondent No.2-

Insurance Company.

11. Learned counsel for the petitioner submits that,

the petitioner has suffered permanent disability and in

order to establish that the petitioner has suffered

permanent disability examined a doctor as PW.3, who has

opined that the petitioner has suffered permanent

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disability of 80%, wherein the Tribunal has discarded the

evidence of PW.3 only on the ground that he is not a

treated doctor. He also submits that the Tribunal has failed

to award the compensation under the heads of future

medical expenses, marriage prospects etc. Hence, on

these grounds, he prays to allow the appeal.

12. Per contra, the learned counsel for the

respondent No.2/Insurance Company supports the

judgment and award passed by the Tribunal, contending

that the compensation awarded by the tribunal is just and

proper and same does not call for any interference. Hence,

prays to dismiss the appeal.

13. We have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for our consideration is in

regard to quantum of compensation.

14. It is not in dispute that, the petitioner met with

an accident and suffered multiple injuries. In order to

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establish that the accident was occurred due to rash and

negligent riding of the driver of the offending vehicle, the

petitioner has produced the copy of FIR marked as Ex.P4,

and certified copy of the charge sheet marked as Ex.P9.

From the perusal of Ex.P9, it discloses that the accident

was occurred due to rash and negligent driving of the

driver of the offending vehicle and the Tribunal was

justified in recording the finding that the accident was

occurred due to rash and negligent driving of the driver of

the offending vehicle.

15. Insofar Assessment of Disability: Though it

is the case of the petitioner that the petitioner has

suffered several multiple injuries, in order to establish that

he has suffered permanent disability, he has examined a

doctor as PW.3, who has issued a disability certificate

marked as Ex.P20. PW.3 has examined the petitioner on

31.10.2018 for his permanent physical disability. He has

clinically examined the petitioner and calculated the

permanent physical disability as follows:

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Sl.No. Disability Disability rate

1. Altered sensorium 100% of Neurological

2. Bladder disability i.e. 75% of Neurological incontinence severe

3. Motor system disability 75% of Neurological Paraparesis right side

4. Post head injury and its 50% of Neurological epileptics Moderate

5. Ataxia Moderate 50% of Neurological

16. According to the book called a manual for

doctors to evaluate permanent physical disability by

B.P.Yadav and S.K.Verma. Therefore, he has opined that

total disability is , a= Higher value, b=

lower value = 100% Neurological and further he is of the

opinion that petitioner has suffered permanent disability of

80%.

17. The tribunal has considered the evidence of

PW.3 and disability certificate issued to him as per Ex.P20.

PW.3 is the doctor, though he may not a treated doctor,

he is an expert in the medical field and he has opined that

petitioner has suffered permanent disability of 80% to the

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whole body. The Tribunal ought to have assessed the

permanent disability. The Tribunal without assessing any

permanent disability has declined to grant compensation

under the head of loss of future income. Considering the

evidence of PW.3 and Ex.P20, we assess the disability at

40% to the whole body.

18. Insofar as Quantum of Compensation:

It is the case of the petitioner that petitioner was

aged about 25 years as on the date of accident and he was

an agriculturist and getting income of Rs.1,5000/- p.m. In

order to substantiate the case of the petitioner, the

petitioner has not produced any income proof and in the

absence of income proof, we assess the notional income as

per the guidelines issued by the Karnataka Legal Services

Authority. The accident is of the year 2016, we assess the

notional income at Rs.8,750/- p.m. As we have already

assessed disability, permanent disability at 40% and

petitioner was aged about 25 years as on the date of

accident. The multiplier applicable to the age group of the

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petitioner is '17'. Considering the monthly income of the

petitioner at Rs.8,750/- and the other factors as stated

supra, the petitioner is entitled for compensation of

Rs.7,14,000/- (Rs.8,750/- x 12 x 17 x 40%) on account of

'loss of future income'.

19. Thus, considering the evidence of PW.3 and

Ex.P9 and 20, we have re-assessed the compensation

under the following different heads:

  Sl.No.                  Heads              By this Court
    1.      Pain and suffering                     1,00,000/-

    2.      Towards loss of amenities                75,000/-

    3.      Towards attendant, charge,               50,000/-
            diet and nourishment.
    4.      Towards medical expenses
            (maintained as it is awarded           1,09,078/-
            by the Tribunal)

    5.      Loss of future income on
            account of permanent                   7,14,000/-
            disability

    6.      Future medical expenses                  30,000/-

    7.      Towards loss of income
            during   the   period of                 26,250/-
            treatment (8750 X 3)

    8.      Marriage prospects                     1,00,000/-

                       Total                      12,04,328/-
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     20.   The    petitioner       is     entitled        for      a   total

compensation of Rs.12,04,328/- as against Rs.2,54,078/-

awarded by the tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.9,50,250/- with

interest @ 6% p.a.

21. Hence, we proceed to pass the following:

ORDER

(a) The appeal is allowed in part.

(b) The impugned judgment and award passed by the Tribunal is modified.

(c) The petitioner is entitled for a total compensation of Rs. 12,04,328/- as against Rs.2,54,078/- awarded by the tribunal. The petitioner is entitled for an enhanced compensation of Rs.9,50,250/- with interest @ 6% p.a. from the date of petition till its realization.