Karnataka High Court

Rasheed vs Venkatrao And Anr on 3 July, 2024

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                                                            MFA No.202867 of 2022




                                 IN THE HIGH COURT OF KARNATAKA,

                                         KALABURAGI BENCH

                               DATED THIS THE 3RD 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.202867 OF 2022 (MV-I)

                      BETWEEN:

                      RASHEED
                      S/O HASANSAB PINJAR,
                      AGED 27 YEARS,
                      OCC: TAILORING WORK (NOW NIL)
                      R/O: BATAGERA (B) TQ: SEDAM,
                      DIST: KALABURAGI.
                                                                      ...APPELLANT

                      (BY SMT. LAKSHMI G.E., ADVOCATE)

Digitally signed by   AND:
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
                      1.   VENKATRAO
COURT OF                   S/O DEVARAO BIRADAR,
KARNATAKA
                           AGE: MAJOR,
                           OCC: BUSINESS,
                           R/O: CHIMKOD
                           TQ: AND DIST: BIDAR - 585 401.

                      2.   THE GENERAL MANAGER
                           IFFCO-TOKIO GEN INSURANCE CO. LTD.,
                           THROUGH ITS BRANCH MANAGER,
                           G1, G2, G-12, G-13 ASIAN ARCADE
                           NEAR ANAND HOTEL
                           S.B. TEMPLE ROAD, KALABURAGI
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                                 NC: 2024:KHC-K:4540-DB
                                       MFA No.202867 of 2022




      DIST: KALABURAGI - 585 102
      INSURER OF CAR BEARING NO.KA-38-M-3046
      TATA M INDIA VISTA VX CAR.
                                         ...RESPONDENTS

(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
    V/O. DTD.10.07.2023 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
OF THE LEARNED SENIOR CIVIL JUDGE AND M.A.C.T., SEDAM
IN M.V.C. NO.1202/2018 DATED 29.03.2022 AND ENHANCE
THE    COMPENSATION         AWARDED   OF   RS.15,73,950/-    TO
RS.89,80,000/- WITH INTEREST AT 6% PER ANNUM FROM THE
DATE OF THE PETITION TILL THE DATE OF DISPOSAL.


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


                            JUDGMENT

This appeal is filed by the appellant/claimant being

dissatisfied with the compensation awarded in MVC

No.1202/2018 dated 29.03.2022 passed by the Senior

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

seeking enhancement of compensation.

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2. Brief facts leading to rise filing of this appeal

are as under:

That, on 10.11.2017 at about 9.00 a.m., when the

petitioner and his brother's son by name, Akhil were

proceeding on a motorcycle bearing No.KA-32/EF-0031

towards Batagera village on the left side of Sedam to

Kodangal Road, in front of KEB Sub-Station near VCF

Sedam, a Car bearing Reg.No.KA-38/M-3046 Tata M.

Indica Vista Vx Car came from opposite direction with high

speed and in a rash and negligent manner by its driver

and dashed against the motorcycle of the petitioner, due

to which the petitioner and Akhil fell down and sustained

grievous injuries and there was damages to the

motorcycle of the petitioner also. Thereafter, the petitioner

was shifted to Govt. General Hospital, Sedam and later he

was shifted to Yashoda Hospital, Hyderabad for better

treatment. It is the case of the petitioner that he was aged

22 years and was working as a Tailor and earning

Rs.30,000/- p.m. The petitioner was hale and healthy prior

to the date of the accident. Due to accident, the petitioner

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suffered permanent disability and he could not do his job

as he used to do earlier. Hence, the petitioner filed claim

petition under Section 166 of M.V.Act claiming

compensation.

3. 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 prays to dismiss the petition against

respondent No.1.

4. 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.

5. 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.3 and

also got examined his employer as P.W.2. The respondent

neither examined any witness nor produced any

documents. The Tribunal, after recording the evidence,

hearing on both sides and on the assessment of oral and

documentary evidence, partly allowed the claim petition

and ordered that the petitioner is entitled for

compensation of Rs.15,73,950/-. It is held that the

respondents are jointly and severally liable to pay

compensation and further directed the respondent No.2-

insurer to deposit the compensation amount within two

months from the date of the order. The petitioner,

aggrieved by the judgment and award, filed this appeal

seeking enhancement of compensation.

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6. Heard the learned counsel for the petitioner and

also learned counsel for respondent No.2-Insurance

Company.

7. Learned counsel for the appellant/petitioner

submits that, the petitioner in order to prove the disability

examined the doctor as RW.3, who has issued the

disability certificate as per Ex.P12 and opined that the

petitioner has suffered disability to the extent of 42% to

the whole body, which is on the lower side. She also

contend that the compensation awarded under the other

heads is also on the lower side. Hence, she submits that

the impugned judgment passed by the Tribunal requires to

be modified by enhancing the compensation. Accordingly,

she prays to allow the appeal.

8. Per contra, learned counsel for the respondent

No.2-Insurance Company supports the impugned

judgment and award passed by the Tribunal and submits

that the Tribunal was justified in assessing the disability at

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14% to the whole body, which does not call for any

interference and the compensation granted under other

heads are just and proper. Hence, on these grounds, she

prays to dismiss the appeal.

9. Perused the records and considered the

submissions of the learned counsel for the parties. The

point that arises for our consideration is quantum.

10. 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 vehicle, the

petitioner has produced the copy of certified copies of FIR

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

11. Insofar as quantum of compensation, the

petitioner has contended that prior to the accident he was

hale and healthy, aged about 23 years and he was doing

tailoring work and earning Rs.30,000/-p.m. and in order to

establish his income examined his employer as P.W.2, who

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deposed that the petitioner is a professional tailor in

Sedam town and he is working in his shop since 08 years

and he paying Rs.350/- per pair and was earning Rs.700/-

per day. But in the cross-examination, P.W.2 admits that

he has not obtained any permission from the Municipality

for running tailoring shop and admits that he has not given

any letter number about issuing Certificate marked at

Ex.P.18. Further, P.W.2 admits that he used to pay salary

by cash and he has not maintained any documents to that

effect. Therefore, any amount of oral evidence led by the

employer i.e. P.W.2 would not come into the aid of the

petitioner as the oral evidence does not dispense with the

production of documentary evidence. In the absence of

proof of income, since the accident has taken place in the

year 2017, the notional income has to be taken at

Rs.10,250/- p.m. as per guidelines issued by the

Karnataka State Legal Services Authority.

12. In order to prove the permanent disability of

the petitioner has examined P.W.3, the doctor who has

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deposed before the Tribunal that he has clinically

examined P.W.1 and after examining P.W.1 and after

going through the medical records opined that the

petitioner has suffered disability to the extent of 42% to

the whole body wherein the Tribunal has taken disability at

14% to the whole body. Though P.W.2 is not a treating

doctor, however taking note that he being expert in the

medical field, issued disability certificate at Ex.P.12 after

examining P.W.1 stating that petitioner has suffered

grievous injuries and he has opined that the petitioner has

suffered disability of 42% to the whole body. But the

Tribunal has taken the disability at 14%, which is in our

opinion is on the lower side. We re-assess the disability

after taking into consideration the evidence of P.W.3 and

medical records, at 20% to the whole body. The applicable

multiplier to the age group of petitioner is '18'.

13. Thus, we re-assess the compensation under the

following heads:

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Sl.       Heads       By Tribunal      By this Court
No.
 1. Towards pain and       Rs.40,000/-      Rs.75,000/-
    sufferings
 2. Towards loss of      Rs.2,92,700/-    Rs.4,42,800/-
    future income
    (Rs.10250/- x 12x
    18x 20%)
 3. Towards attendant      Rs.10,500/-      Rs.25,000/-
    charges, food and
    conveyance

4.   Towards medical          Rs.11,80,000/-      Rs.11,80,000/-
     expenses


5.   Towards loss of             Rs.30,750/-            Rs.41,000/-
     income during
     treatment
6.   Towards loss of             Rs.20,000/-            Rs.40,000/-
     future amenities

                  Total   Rs.15,73,950/-          Rs.18,03,800/-



     14.   The   petitioner      is    entitled   for     a    total

compensation of Rs.18,03,800/- as against Rs.15,73,950/-

awarded by the Tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.2,29,850/- with

interest @ 6% p.a.