Karnataka High Court
Shri.Yashwant vs Sri.Mahantesh on 26 June, 2024
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NC: 2024:KHC-D:8695
MFA No. 102472 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102472 OF 2016 (MV)
BETWEEN:
SHRI. YASHWANT KRISHNA KUMBAR,
AGE: 32 YEARS, OCC: AGRICULTURE &
BRICKS MANUFACTURER, R/O: BAD,
TQ: HUKKERI, DIST: BELAGAVI-590001.
...APPELLANT
(BY SRI. ASHOK A. NAIK, ADVOCATE)
AND:
1. SRI.MAHANTESH DUNDAPPA GOTURI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O: AKIWAT, TQ: HUKKERI,
DIST: BELAGAVI-590001.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI-590001.
Digitally 3. SRI. SHIVANAND PITAMBAR GOTURI,
signed by
MANJANNA AGE: 57 YEARS, OCC: AGRICULTURE,
E
R/O: AKIWAT, TQ: HUKKERI,
Location:
HIGH DIST: BELAGAVI.
COURT OF
KARNATAKA ...RESPONDENTS
(BY SMT. ARUNA DESHPANDE, ADV. FOR R2;
NOTICE TO R1 & R3 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED 02.04.2016, PASSED IN
MVC.NO.1680/2014 ON THE FILE OF THE MEMBER ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, HUKKERI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8695
MFA No. 102472 of 2016
JUDGMENT
Heard learned counsel for the appellant and learned
counsel for respondents on admission. With the consent of
learned counsel for the parties, the matter is taken up for
final disposal at the admission stage itself.
2. This appeal is filed by the claimant aggrieved by
the judgment and award dated 02.04.2016 in MVC
No.1680/2014 passed by the Additional Motor Accident
Claims Tribunal, Hukkeri, ("the Tribunal" for short),
whereby the Tribunal awarded a compensation of
Rs.3,79,075/- to the claimant.
3. For the sake of convenience, the parties are
referred to as per their ranking referred to in the claim
petition before the Tribunal.
4. Heard learned counsel appearing for the
claimant and learned counsel appearing for respondent
No.2/Insurance Company. Perused the judgment and
award of the Tribunal.
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5. There is no dispute regarding the injuries
sustained by the claimant in a road traffic accident that
was occurred on 18.04.2014 at about 16.45 hours, the
claimant was proceeding as a pillion rider on motorcycle
bearing registered No.KA-23/EE-0981 from Sankeswhar to
Akiwat side, the rider was riding the motorcycle in
moderate speed by following traffic rules. At the same
time, near the land of Nagannavar, the rider of motorcycle
bearing registered No.KA-23/Y-3929, came from opposite
direction in a rash and negligent manner and dashed to
the claimant's motorcycle. Due to the said impact, the
claimant sustained fracture and grievous injuries.
Immediately, the claimant was shifted to Dr.Hattarki
Hospital and Trauma Centre at Gadhinglaj, wherein he was
diagnosed with X-ray, scan and other medical
examinations and the doctor has conducted surgical
operation for the fractures sustained by the claimant.
6. Considering the oral evidence of PWs.1 & 2 and
the documents produced at Exs.P.1 to P.16, the Tribunal
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has awarded a sum of Rs.3,79,075/- as compensation to
the claimant. Being aggrieved by the same, the claimant is
before this Court seeking enhancement.
7. Learned counsel for the appellant/claimant
submits that, the Tribunal has failed to consider the
injuries sustained by the claimant and the amount that
was spent towards medical treatment. The Tribunal has
taken the disability at 55% to the whole body, which is on
the lower side. In fact, the Tribunal ought to have
considered the disability at 100%, as the claimant suffered
permanent physical disability i.e. amputation to the right
leg. Further, the compensation awarded by the Tribunal on
all the heads are not reasonable and hence, he prays to
allow the appeal.
8. Learned counsel appearing for respondent
No.2/Insurance Company submits that, the Tribunal
considering the medical evidence as well as oral evidence
and other aspects of the matter has awarded the
compensation which is exorbitant and higher side. Further,
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there is contributory negligence on the part of rider of
motorcycle bearing registered No.K-23/EE-0981, wherein
the claimant was proceeding as a pillion rider and
therefore, contributory negligence has to be fastened at
50% on the claimant and 50% liability on the Insurance
Company. Hence, he prayed to dismiss the appeal.
9. In view of the submission made by both counsel
and materials available on record, the following point that
would arise for Court consideration in this appeal is :
"Whether the compensation awarded by the
Tribunal is just and reasonable or does it call for
enhancement or for reduction?".
10. In order to substantiate this aspect, learned
counsel for respondent No.2/Insurance Company has not
placed any oral and documentary evidence before the Trial
Court.
11. From perusal of the material available on
record, Insurance Policy was in force and the riders of both
motorcycles were possessing valid and effective driving
license as on the date of accident. As per the contents of
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Ex.P.2-FIR, Ex.P.3-Spot Panchanama and Ex.P.7-charge
sheet, it is clear that, the Investigating Officer made rider
of both motorcycles as accused and hence, there is
contributory negligence. The content of Ex.P.7-Charge
Sheet, is not challenged by the claimant. It shows that the
rider of motorcycle bearing registered No.KA-23/EE-0981
also contributed negligence to the accident and hence, the
owner of the said motorcycle held responsible to 50%
liability but the claimant is not impleaded owner as one of
the respondent in the matter. Considering the materials
available on record, 50% liability is fastened on the
Insurance Company (offending vehicle) and 50%
contributory negligence is fastened on the rider of
motorcycle, wherein the claimant was proceeding as a
pillion rider.
12. After hearing the learned counsel for the parties
and after perusing the judgment and award of the
Tribunal, this Court is of the opinion that the compensation
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awarded by the Tribunal is not just and reasonable, it is on
the lower side and hence it is required to be enhanced.
13. As per Ex.P.8-Out Patient Certificate, Ex.P.13
Permanent Physical Disability Certificate and Ex.P.16-
Dishcharge Card, it shows that, the claimant sustained
amputation and hence, he undergone surgery. He was
admitted as inpatient for a period of 12 days. The injuries
sustained and treatment taken by the claimant is also
supported by oral evidence of the doctor.
14. P.W.2-Sri.Ravi Hattaraki, who is the Orthopedic
Surgeon has assessed the disability of claimant at 55%
and the Tribunal considered disability at 55% which is
reasonable one.
15. Having regard to the chart prepared by the
Karnataka State Legal Services Authority and High Court
Legal Services Committee, in the absence of proof of
income, thus, the notional income of the claimant is taken
at Rs.7,500/- instead of Rs.6,000/- taken by the Tribunal
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and multiplier applicable would be '15' . The accident is of
the year 2014.
16. In the instant case, the tribunal considered
income of Rs.6,000/- per month, multiplier at '15' and
disability at 55% and awarded a sum of Rs.5,94,000/-
under the head loss of future income. But, the Tribunal
has not awarded 'future prospects' as per the decision of
the Supreme Court in the case of National Insurance
Company Limited Vs. Pranay Sethi And Others1.
Hence, 40% of the 'future prospects' to be added to the
personal income of the claimant. Hence, the 'loss of future
income' is re-assessed at Rs.10,39,500/- (Rs.7,500/- +
40% X 12 X 15 X 55/100 = 10,39,500/-).
17. The Tribunal has awarded a sum of
Rs.50,000/- towards 'pain and suffering' which is
reasonable one. The Tribunal has awarded a sum of
Rs.30,000/- each towards 'loss of amenities' and 'Special
diet, attendant and conveyance charges' which is
(2017) 16 SCC 680
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reasonable one and no interference is called for in that
regard.
18. The Tribunal has awarded a sum of Rs.2,400/-
under the head 'loss of income during laid up period',
which is not reasonable one. Considering income at
Rs.7,500/- per month and the claimant must have under
treatment for a period of three months, it re-assessed at
Rs.22,000/- (Rs.7,500/- x 3).
19. The Tribunal has awarded a sum of
Rs.51,749/- towards 'medical expenses' which is
reasonable one. The Tribunal has not awarded any
compensation under the head 'Artificial Limb' (Future
Medical Expenses). Hence, Rs.50,000/- is awarded under
the head 'Artificial Limb'.
20. Thus in all, the claimant is entitled to receive
compensation on the following heads.
Sl. Compensation awarded by
Description
No. Tribunal This Court
1 Pain and suffering 50,000/- 50,000/-
2 Loss of future income 5,94,000/- 10,39,500/-
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3 Loss of amenities 30,000/- 30,000/-
Special diet,
4 attendant and 30,000/- 30,000/-
conveyance charges
Loss of income during
5 2,400/- 22,500/-
laid up period
6 Medical expenses 51,749/- 51,749/-
Future medical
7 50,000/-
expenses
Total 7,58,149/- 12,73,749/-
This Court awarded
compensation
(Rs.12,73,749/- x 50%) Rs.6,36,875/-
21. Therefore, respondent Nos.2 and 3 being the
insurer and owner of the offending motorcycle bearing
No.KA-23/Y-3929 are jointly and severely liable to pay
50% of the compensation out of the total compensation of
Rs.12,73,749/- which come to Rs.6,36,875/-
(Rs.12,73,749/- x 50%) with interest at rate of 6% per
annum. Accordingly, I pass the following;
ORDER
i) This appeal is allowed in part.
ii) The judgment and award dated 02.04.2016
passed in MVC.No.1680/2014 by the Additional
Motor Accident Claims Tribunal, Hukkeri, is
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hereby modified to the extent stated herein
above.
iii) The claimant is entitled for additional
compensation of Rs.257,800/- (Rs.6,36,875/-
- 3,79,075/-) with interest at the rate of 6%
per annum from the date of the claim petition,
till the date of its realization.
iv) Respondent No.2/Insurance Company is
directed to deposit entire compensation with
interest at the rate of 6% per annum within a
period of four weeks from the date of receipt of
copy of this judgment.
v) Out of the additional compensation, the
Tribunal is directed to disburse the entire
compensation to the claimant on proper
identification.
No order as to costs.
Sd/-
JUDGE
AC/ct-an
