Karnataka High Court

Santosh S/O Subhash vs Ganpati S/O Gopu And Anr on 3 June, 2024

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                                                  NC: 2024:KHC-K:3527-DB
                                                         MFA No.200231 of 2023




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 3RD DAY OF JUNE, 2024

                                             PRESENT

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

                           MISCL. FIRST APPEAL NO.200231 OF 2023 (MV-I)

                      BETWEEN:

                      SANTOSH
                      S/O SUBHASH,
                      AGE: 31 YEARS,
                      OCC: AGRICULTURE AND LABOUR,
                      NOW NIL,
                      R/O BHUYAR RAMCHANDRANAIK TANDA,
                      TQ: CHINCHOLI, DIST: KALABURAGI,
                      NOW R/AT BEHIND R.T.O. OFFICE, KALABURAGI.
                                                                   ...APPELLANT

Digitally signed by   (BY SRI SANJEEV PATIL, ADVOCATE)
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
                      AND:
Location: High
Court Of Karnataka
                      1.   GANPATI
                           S/O GOPU,
                           AGE: MAJOR,
                           OCC: AGRICULTURE,
                           R/O BHUYAR RAMCHANDRANAIK TANDA,
                           TQ: CHINCHOLI,
                           DIST: KALABURAGI - 585 307.

                      2.   THE LEGAL MANGER,
                           RELIANCE GENERAL INSURANCE CO LTD.,
                           DIVISIONAL OFFICE,
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                                       NC: 2024:KHC-K:3527-DB
                                           MFA No.200231 of 2023




    ASIAN PLAZA,
    NEAR TIMMAPURI CIRCLE,
    KALABURAGI - 585 102.
                                                     ...RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
   V/O DTD: 24.03.2023 NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD PASSED BY THE III ADDITION SENIOR CIVIL
JUDGE AND M.A.C.T., KALABURAGI, IN M.V.C.NO.1051/2019,
DATED 24.02.2022, BY ENHANCING THE COMPENSATION AS
PRAYED FOR, 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 by the

petitioner under Section 173(1) of the Motor Vehicles Act

(for short 'the Act') challenging the judgment and award

dated 24.02.2022 passed in MVC No.1051/2019 by the III

Additional Senior Civil Judge and MACT, Kalaburagi

(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.

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3. Brief facts leading rise to filing of this appeal

are as under:

On 02.10.2018, at about 3.00 p.m., near bus stand

of Kanunayak Thanda, Chincholi taluk, the petitioner and

other villagers were standing by the side of the bus stand

of Kanunayak Thanda as to go to their Thanda, at that

time a motorcycle bearing Registration No.KA-32/ED-0036

being driven by its rider in a rash and negligent manner

and dashed to the petitioner. As a result, the petitioner

sustained grievous injuries. The petitioner was hale and

healthy prior to the accident. It is contended that after

the accident, the petitioner has suffered 100% permanent

disability and could not able to do any work. The

petitioner has incurred huge amount towards medical

expenses. The accident was caused due to rash and

negligent driving of the rider of the motorcycle. Hence, the

petitioner filed the claim petition under Section 166 of

Motor Vehicles Act and accordingly prays to allow the

claim petition.

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4. Though respondent No.1 appeared through his

counsel, but he did not file the written statement.

Respondent No.2 filed the written statement denying the

averments made in the claim petition. It is contended that

the rider of the motorcycle was not possessing valid

driving license as on the date of accident. Hence

insurance company is not liable to pay compensation as

claimed by the petitioner. Hence, prayed to dismiss the

claim petition.

5. The Tribunal on the basis of pleadings of the

parties, framed the issues for consideration.

6. In order to substantiate the case, petitioner

herein got examined himself as PW.1 and got marked 15

documents as Exs.P1 to 15. The respondents have not

adduced either oral or documentary evidence.

7. The Tribunal after recording the evidence of the

petitioner, hearing on both side and on the assessment of

oral and documentary evidence allowed the claim petition

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in part and awarded the compensation of Rs.7,48,749/-

with interest @ 6% p.a., from the date of petition till its

realization. It is also held that the respondent Nos.1 and 2

are jointly and severally liable to pay the compensation

amount and directed respondent No.2 to deposit the

compensation amount. The petitioner, aggrieved by the

judgment and award passed by the Tribunal, has filed this

appeal for enhancement of compensation.

8. We have heard the learned counsel for the

petitioner and learned counsel for respondent No.2-

Insurance Company.

9. Learned counsel for the petitioner submits that,

the petitioner has suffered 100% permanent disability,

wherein the Tribunal has taken disability at 17% to the

whole body which is on lower side. He submits that this

Court vide order dated 04.04.2024, the appellant was

directed to appear before the Medical Board on

25.04.2024 and medical board was directed to submit the

report to this Court on or before 31.05.2024. Pursuant to

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the order passed by this Court dated 04.04.2024,

Gulbarga Institute of Medical Science on the examination

of the petitioner, has submitted the report, wherein the

Board was of the opinion that the petitioner has suffered

90% permanent / non-progressive disability. Hence, he

submits that the Tribunal ought to have taken permanent

disability at 100%. On the contrary, the Tribunal has

taken disability at 17% which is on lower side. He also

submits that the Tribunal has awarded lower

compensation on the other heads. Hence, on these

grounds, he seeks for enhancement of compensation.

10. Per contra, the learned counsel for the

respondent No.2/Insurance Company submits that the

compensation awarded by the Tribunal is just and proper

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

these grounds, prays to dismiss the appeal.

11. We have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for consideration is quantum.

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12. It is not in dispute that the petitioner has

suffered disability in the road traffic accident and in order

to establish the accident was occurred due to rash and

negligent riding of the offending vehicle, the petitioner has

produced the copy of FIR and the charge sheet marked as

Ex.P1 and Ex.P3. Ex.P3 discloses that the accident was

occurred due to rash and negligent riding of the offending

vehicle.

Insofar as Quantum of Compensation:

13. The petitioner contended that prior to the

accident, he was hale and healthy and aged about 28

years as on the date of accident and he was doing Coolie

work and earning Rs.5 lakh p.a. Due to accident, he has

suffered permanent disability. In order to substantiate the

same, he has examined doctor as PW.2, who has deposed

that he has examined the petitioner and issued a disability

certificate as per Ex.P11, which discloses that the

petitioner has suffered permanent disability. PW.2 has

pointed that Neurological disability amounts to 75% +20%

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(paraplegia + spasticity) respectively equivalent to 95%

disability. Further, disability certificate issued by PW.2

discloses that the petitioner has suffered the disability to

an extent of 95%. Further, this Court vide order dated

04.04.2024 directed the petitioner to appear before the

Medical board on 25.04.2024. The Medical Board was

directed to submit the report to this Court on or before

31.05.2024. Pursuant to the order passed by this Court,

Medical board has submitted the report dated 03.05.2024,

wherein the members of the Medical board have examined

the petitioner in regard to assess the disability and further

they have opined that the petitioner has suffered 90%

disability to the whole body. Thus, we are of the opinion

that the physical disability of the petitioner arrived by the

Tribunal is on lower side which needs to be enhanced by

95%. The petitioner has not produced any evidence with

regard to his income. Therefore, notional income has to

be assessed as per the guidelines of Karnataka State Legal

Services Authority, since the accident was taken place in

the year 2018, notional income has to be taken at

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Rs.11,750/-. The petitioner was aged about 28 years as on

the date of accident. We have taken disability at 95%. We

are rounding off it to 100%. Thus, in view of the decision

of the Hon'ble Apex Court in the case of JITHENDRAN VS.

NEW INDIA ASSURANCE COMPANY LIMITED AND ANOTHER,

REPORTED IN (2021) SCC ONLINE SC 983, wherein the

Hon'ble Apex Court held that in case of permanent

disability, future prospects has to be added to the

notational income. Therefore, 40% future prospects has to

be added to his notional income, which would be

Rs.11,750 + 4700 = Rs.16,450/- and the petitioner was

aged about 28 years as on the date of accident. The

multiplier applied to his age group as per as per the

judgment of the Hon'ble Supreme Court in the case of

Sarla Verma vs. Delhi Transport Corporation reported

in (2009) 6 SCC 121 is '17'. Hence, the petitioner is

entitled for Rs.16,450 X 12X 17 X100 = Rs.33,55,800/-

under the head of 'future earning disability'.

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14. Considering the evidence of PW.2 and also the

report of medical board submitted by this Court vide

communication dated 03.05.2024, we have re-assessed

the compensation under the following heads:

Compensation awarded in Rs.

           Particulars                 By the
                                                        By this Court
                                      Tribunal

    Pain and suffering                    Rs.40,000/-    Rs.1,00,000/-

    Medical expenses                Rs.2,06,009/-        Rs.2,06,009/-

    Loss of income during laid            Rs.35,250/-      Rs.98,700/-
    up period
    Loss of future earning          Rs.4,07,490/-       Rs.33,55,800/-
    disability
    Nutritious food and                   Rs.30,000/-      Rs.60,000/-
    attendant charges
    Loss of future amenities,             Rs.30,000/-      Rs.60,000/-
    and loss of happiness
    Total                           Rs.7,48,749/-       Rs.38,80,509/-

    Enhanced by this Court                    Rs.31,31,760/-


     15.   The     petitioner       is      entitled    for    a   total

compensation of Rs.38,80,509/- as against Rs.7,48,749/-

awarded by the tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.31,31,760/- with

interest @ 6% p.a.

16. Hence, we proceed to pass the following:

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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.38,80,509/- as against Rs.7,48,749/- awarded by the tribunal. The petitioner is entitled for an enhanced compensation of Rs.31,31,760/- with interest @ 6% p.a. from the date of petition till its realization.

(d) The respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount with interest before the tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.