Karnataka High Court
Ramesh S/O Shivaji Jadhav vs Narayan And Anr on 3 July, 2024
-1-
NC: 2024:KHC-K:4560-DB
MFA No. 201692 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. 201692 OF 2022 (MV-I)
BETWEEN:
RAMESH S/O SHIVAJI JADHAV
AGE: 36 YEARS, OCC: BUSINESS,
R/O CHAUHAN WADI, VELAPUR,
TQ: MALSHIRAS, DIST. SOLAPUR -413 113.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
Digitally signed by 1. NARAYAN
BASALINGAPPA
SHIVARAJ S/O BHAU SARGAR,
DHUTTARGAON AGE: 46 YEARS, OCC:BUSINESS,
Location: HIGH
COURT OF R/O KOLA, TALUK: SANGOLA,
KARNATAKA DISTRICT: SOLAPUR -413 314,
STATE: MAHARASHTRA.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE CO.LTD,
HANAMSHETTY BUILDING,
GURUKUL ROAD, VIJAYAPURA -586 101.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
-2-
NC: 2024:KHC-K:4560-DB
MFA No. 201692 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED 29.07.2021 PASSED BY THE
COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND MEMBER, MACT-IV, AT VIJAYAPURA, IN M.V.C
NO.23/2017, 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
appellant under Section 173(1) of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the Act', for short) being
dissatisfied with the judgment and award dated
29.07.2021 passed in MVC No.23/2017 by the Court of III
Addl. District and Sessions Judge and Member, MACT-IV,
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.
3. The facts giving rise to the filing of the appeal
briefly stated are that, on 08.11.2016 at 7.30 p.m., near
the house of Shahaji Anand More, Velapur on Velapur-
NC: 2024:KHC-K:4560-DB
Sangola Road, the petitioner was driving the TaTa Ace
Vehicle bearing registration No.MH-10/AQ-3822 from the
side of Sangola towards Velapur, at that time, a Eicher
Tempo bearing registration No.MH-45/5354 came from
opposite direction with a high speed in a rash and
negligent manner and dashed to the TaTa Ace by causing
accident. Due to the said impact, the petitioner has
sustained grievous multiple injuries. The petitioner was
doing business and getting monthly income of Rs.20,000/-
per month. Due to the accidental injuries, he became
permanent disable. Hence, the petitioner filed a claim
petition under Section 166 of M.V.Act, seeking
compensation on the ground of injuries sustained in the
road traffic accident.
4. After service of notice, respondent Nos.1 and 2
appeared and filed written statement denying the contents
of claim petition contending that the tribunal has no
jurisdiction to entertain the claim petition and it is
contended that the driver of the offending vehicle was not
possessing valid and effective driving license as on the
NC: 2024:KHC-K:4560-DB
date of the accident and there is violation of policy
conditions. Respondent No.2 is not liable to pay
compensation as demanded by the petitioner. Hence,
prayed to dismiss the claim petition.
5. On the basis of pleadings, the Tribunal framed
relevant issues for consideration.
6. There is another claim petition filed by other
petitioner and both are clubbed together and allowed
common evidence. In order to substantiate his case,
petitioner in this case got examined himself as PW.1 and
also examined one doctor as PW.2 and got marked
documents as Exs.P1 to P15. On the other hand,
respondents have not led any evidence but got marked the
policy as Ex.R1.
7. The Tribunal, after recording the evidence,
hearing on both sides and on the assessment of oral and
documentary evidence answered issue Nos.1 and 4 in the
affirmative, issue Nos.2 and 3 in the negative and issued
No.5 as per final order and allowed the petition in part with
costs and it is ordered that, the petitioner is entitled for
NC: 2024:KHC-K:4560-DB
compensation of Rs.2,73,927/- with interest @ 6% p.a.
from the date of petition till realization of compensation
amount and directed the respondent No.2 to deposit the
compensation amount within 30 days from the date of
judgment. The petitioner, being dissatisfied with
compensation awarded by the tribunal has filed the
present appeal seeking for enhancement of compensation
amount.
8. Heard the learned counsel for petitioner and
learned counsel for respondent-Insurance Company.
9. Learned counsel for the appellant/petitioner
submits that, the tribunal has erred in assessing the
disability at 10% only which is on the lower side. Further
he submits that in order to prove the disability, the
petitioner examined the doctor as PW.2 who has issued
the disability certificate and he deposed that the petitioner
suffered disability in relation to right lower limb is 34% to
36%. He submits that the tribunal has erred in assessing
the permanent disability at 10% only. He also submits that
the compensation awarded under other heads is on lower
NC: 2024:KHC-K:4560-DB
side. Hence, on these grounds he prays to allow the
appeal.
10. Per contra, the learned counsel for the
respondent/Insurance Company supports the judgment
and award passed by the tribunal contending that the
same does not call for any interference. Hence, on this
ground he prays to dismiss the appeal.
11. Perused the records and considered the
submission made by the learned counsel for the parties.
The only point that arises for our consideration is with
regard to quantum.
12. There is no dispute that the petitioner met with
an accident and sustained injuries and further in order to
prove that the accident has occurred due to the rash and
negligent driving by the driver of the offending vehicle, the
petitioner has produced Ex.P1, the certified copy of FIR
and Ex.P7, the certified copy of charge sheet, which
discloses that the accident was occurred due to rash and
negligent driving of the driver of the offending vehicle. The
NC: 2024:KHC-K:4560-DB
tribunal was justified in recording a finding that the
accident was occurred due to rash and negligent driving by
the driver of the offending vehicle.
13. Insofar as quantum of compensation is
concerned, the petitioner has contended that prior to the
accident he was hale and healthy, aged about 32 years
and doing business and earning Rs.20,000/- per month.
Due the accident he has suffered permanent disability. In
order to substantiate the same, he has examined the
doctor as PW.2, who deposed that he has examined the
petitioner and issued disability certificate as per Ex.P13,
on the basis of radiological and clinical examination and
deposed that after examining the petitioner he assessed
the permanent disability in relation to right lower limb is
34% to 36%. During the cross examination the petitioner
has admitted that PW.2 is not a treated doctor. Hence, the
tribunal has assessed the disability of the petitioner at
10%, which is on the lower side. Considering the evidence
of PW.2 and disability certificate and the fracture of femur
NC: 2024:KHC-K:4560-DB
and fibula and also the medical records produced by the
petitioner, we assess the permanent disability at 13% to
the whole body.
14. In order to substantiate his case, the petitioner
has not produced any evidence with regard to his income.
Therefore, the notional income has to be assessed as per
the guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken place in
the year 2016, the notional income has to be taken at
Rs.8,750/- p.m. The petitioner is aged about 32 years at
the time of the accident and multiplier applicable to his
age group is '16' which is rightly taken by the tribunal.
Thus, the petitioner is entitled for compensation of
Rs.2,18,400/- (Rs.8,750/- x 12 x 16 x 13%) on account of
'loss of future income'.
15. Considering the evidence of PW.2 and disability
certificate, we re-assess the compensation under the
following heads as under;
NC: 2024:KHC-K:4560-DB
Sl. Heads By Tribunal By this Court
No.
1. Pain and sufferings Rs.35,000/- Rs.50,000/-
2. Loss of amenities Rs.30,000/- Rs.40,000/-
3. Towards attendant Rs.5,000/- Rs.15,000/-
charges, nourishment
and diet
4. Towards medical Rs.35,927/- Rs.35,927/-
expenses
5. Loss of future income Rs.1,68,000/- Rs.2,18,400/-
6. Loss of income during ---- Rs.26,250/-
laid up period
Total Rs.2,73,927/- Rs.3,85,577/-
16. The petitioner is entitled for a total
compensation of Rs.3,85,577/- as against Rs.2,73,927/-
awarded by the tribunal. Hence, the petitioner is entitled
for an enhanced compensation of Rs.1,11,650/- with
interest @ 6% p.a.
17. 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.
- 10 -
NC: 2024:KHC-K:4560-DB
(c) The petitioner is entitled for a total
compensation of Rs.3,85,577/- as against
Rs.2,73,927/- awarded by the tribunal, along
with interest at the rate of 6% per annum
from the date of petition till realization. The
petitioner is entitled for an enhanced
compensation of Rs.1,11,650/- with interest
@ 6% p.a.
(d) The respondent No.2-Insurance Company is
directed to deposit the enhanced
compensation amount before the tribunal
within a period of eight weeks from the date
of receipt of certified copy of this judgment.
(e) The rest of the order passed by the tribunal is
not disturbed.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT;BN
