Karnataka High Court

Shivakumar vs Sambanna And Anr on 6 June, 2024

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                                                   NC: 2024:KHC-K:3669-DB
                                                        MFA No.200324 of 2019



                                  IN THE HIGH COURT OF KARNATAKA
                                         KALABURAGI BENCH
                                DATED THIS THE 6TH 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.200324 OF 2019 (MV-I)

                       BETWEEN:
                       SHIVAKUMAR S/O RANGAPPA
                       AGED: 30 YEARS,
                       OCC: CONTRACTOR NOW NIL,
                       R/O. H.NO.E/337,
                       HOUSING BOARD COLONY BADEPUR
                       BANASHANKARI LAYOUT KOTNOOR-D,
                       TQ. AND DIST. KALABURAGI.
                                                                  ...APPELLANT
                       (BY SRI. B.ALI MOHAMMED, ADVOCATE)
                       AND:

                       1.   SAMBANNA S/O KASHAPPA WALIKAR,
                            AGED MAJOR,
Digitally signed by
BASALINGAPPA                OCC: OWNER OF THE TOYOTA
SHIVARAJ
DHUTTARGAON                 INNOVA CAR BEARING
Location: High Court
Of Karnataka
                            NO.TP KA-32-TP-032691,
                            R/O. H.NO.110, KALYAN NAGAR,
                            SHAHABAD ROAD RAJAPUR,
                            KALABURAGI.
                       2.   THE MANAGER IFFCO TOKIO
                            GENERAL INSURANCE COMPANY LTD.,
                            G1, G2, G12 AND G13 ASIAN ARCADE
                            NEAR ANAND HOTEL,
                            S.B. TEMPLE ROAD
                            KALABURAGI.
                                                                ...RESPONDENTS
                       (BY SRI SUDARSHAN M., ADVOCATE FOR R2;
                       NOTICE TO R1 IS DISPENSED WITH)
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                                  NC: 2024:KHC-K:3669-DB
                                       MFA No.200324 of 2019



     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL THE RECORDS IN
M.V.C.NO.425/2016 ON THE FILE OF III ADDITIONAL SENIOR
CIVIL JUDGE AND M.A.C.T., AT KALABURAGI AND THE
IMPUGNED JUDGMENT AND AWARD DATED 23.07.2018
PASSED IN M.V.C.NO.425/2016 ON THE FILE OF THE III
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 FINAL HEARING THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is filed by the appellant/claimant

challenging the judgment and award dated 23.07.2018

passed in MVC No.425/2016 by the III Addl. Senior Civil

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

seeking for 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:

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That on 12.07.2015 at about 2.00 p.m., both the

petitioner and one Lokesh, who is the petitioner in MVC

No.426/2016 were proceeding on Toyota Innova Car

bearing TP No.KA-32/TP-032691 from Sulepeth to

Kalaburagi, near Ram Nagar Cross, on Chincholi-

Kalaburagi road, at that time, the driver of the said Car

started to drive the same in a rash and negligent manner

and with high speed and dashed to a road side tree, as a

result, the said vehicle turned turtle and both the

petitioners were sustained injuries and they were shifted

to the Basaveshwar Hospital, Gulbarga and thereafter they

were shifted to Chirayu Hospital, Kalaburagi, where both

the petitioners took treatment as an inpatient for about 21

days. The petitioner has spent a huge amount towards the

medical treatment. The petitioner was hale and healthy as

on the date of the accident. After the accident, the

petitioner has suffered permanent disability and he could

not do day today work. Hence, the petitioner filed a claim

petition under Section 166 of M.V.Act claiming

compensation.

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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

respondent No.1. 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 liable to pay compensation.

Accordingly, prayed to dismiss the claim petition.

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

the parties frames 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

produced the documents at Exs.P1 to P15 and the

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respondent No.1 was examined as RW.1 and examined its

official as RW.2 however no documents have been

produced. 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 partly affirmative and issue No.3 as

per final order. The claim petition was partly allowed and

ordered that the petitioner is entitled for compensation of

Rs.3,39,100/-. 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

amount within a period of 30 days from the date of order.

The petitioner, aggrieved by the judgment filed this appeal

seeking enhancement of compensation.

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

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

certificate as per Ex.P6 wherein he has opined that the

petitioner has suffered permanent disability of 50%.

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. Further, he also placed the reliance on the

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

Erudhaya Priya Vs. State Express Transport

Corporation Ltd. reported 2020 SCC Online SC 601

and submits that the Tribunal ought to have also added

future prospects to the income of the petitioner, but the

Tribunal has failed to add future prospects. Hence, he

submits that the impugned judgment passed by the

Tribunal requires to be modified by enhancing the

compensation. Accordingly, he 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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15% to the whole body. On these grounds, he 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 copy 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 34 years and he is a

contractor and in order to establish that he is a registered

contractor he has produced license issued by the

competent authority which is marked as Ex.P10. Due the

accident he has suffered permanent disability. In order to

substantiate the same, he has examined the doctor as

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PW.3, who has issued the disability certificate which is

marked as Ex.P6, wherein he has examined the petitioner

on 26.10.2013 and also perused the records and opined

that the petitioner has suffered Neurological disability

amounting to 50%. However, the tribunal has assessed

the disability at 15% which is on the lower side.

Considering the evidence of PW.3 and nature of injuries by

the petitioner, we are of the opinion that the disability has

to be enhanced to 35%.

12. Further, though the petitioner has produced the

copy of license issued by the competent authority,

however he has not produced any record to show the

monthly income of the petitioner. 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 2015, the notional

income has to be taken at Rs.8,000/- p.m. To the

aforesaid amount 40% has to be added toward future

prospects in view of the law laid down by the Hon'ble Apex

Court in Erudhaya Priya's case stated supra, which comes

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to Rs.11,200/-. The petitioner is aged about 34 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.7,52,640/- (Rs.11,200/- x 12 x 16 x 35%) on account

of 'loss of future income'.

13. Considering the evidence of PW 3 and disability

certificate, the compensation is re-assessed under

different heads as under;

Sl.            Heads            By Tribunal     By this Court
No.
1.    Towards pain and          Rs.30,000/-     Rs.60,000/-
      sufferings
 2.   Towards medical           Rs.53,500/-     Rs.53,500/-
      expenses
 3.   Towards future income     Rs.2,01,600/-   Rs.7,52,640/-

 4.   Towards attendant's       Rs.23,000/-     Rs.50,000/-
      charges, food and
      conveyance

 5.   Towards loss of           Rs.10,000/-     Rs.25,000/-
      amenities and nutrition
      food

 6.   Towards loss of income    Rs.21,000/-     Rs.24,000/-
      during the period of
      treatment
            Total               Rs.3,39,100/-   Rs.9,65,140/-
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     14.     The   petitioner      is    entitled   for   a   total

compensation of Rs.9,65,140/- as against Rs.3,39,100/-

awarded by the tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.6,26,040/- with

interest @ 6% p.a.

15. In view of the above discussions, we proceed to

pass the following: