Karnataka High Court
Chandrashekhar S/O. Malleshappa ... vs Ashok S/O Bhimappa Vasanad on 27 June, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101027 OF 2021 (MV-I)
C/W MFA CROSS OBJ NO.100066 OF 2021
IN MFA NO. 101027 OF 2021
BETWEEN:
ASHOK
S/O. BHIMAPPA VASANAD,
AGE. 48 YEARS, OCC. BUSINESS,
R/O. II MAIN ROAD,
6TH CROSS, KALYAN NAGAR,
DHARWAD,
OWNER OF VEHICLE BEARING
REG. NO.HR-99/TC-TEMP/0676.
...APPELLANT
JAGADISH (BY SRI B.V. SOMAPUR, ADVOCATE)
TR
AND:
Digitally signed
by JAGADISH T R
Location: HIGH
COURT OF
KARNATAKA
CHANDRASHEKHAR MALLESHAPPA BADIGER,
DHARWAD
BENCH AGE. 28 YEARS, OCC. BUSINESS,
R/O. MUMMIGATTI,
TQ. DIST. DHARWAD.
...RESPONDENT
(BY SRI DINESH M.KULKARNI AND SRI R.A. PUROHIT,
ADVOCATES)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD PASSED BY THE II ADDITIONAL SENIOR
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MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, DHARWAD IN M.V.C. NO.46/2017 DATED 18.06.2021
VIDE ANNEXURE-A AND B AND ETC.,
IN MFA. CROB NO.100066 OF 2021
BETWEEN:
CHANDRASHEKHAR
S/O. MALLESHAPPA BADIGER,
AGE. 28 YEARS,
OCC. BUSINESS,
R/O. MUMMIGATTI-580011,
TQ. & DIST. DHARWAD.
...CROSS OBJECTOR
(BY SRI DINESH M.KULKARNI AND SRI R.A. PUROHIT,
ADVOCATES)
AND:
ASHOK S/O. BHIMAPPA VASANAD,
AGE. 48 EYARS, OCC. BUSINESS,
R/O. II MAIN ROAD, 6TH CROSS,
KALYAN NAGAR, DHARWAD-580001,
...RESPONDENT
(BY SRI B.V. SOMAPUR, ADVOCATE)
THIS MFA.CROB IN MFA NO.101027/2021 IS FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND
AWARD DATED 18.06.2021 PASSED IN MVC NO.46/2017 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
ALLOWING THE PETITION FILED UNDER SECTION 166(1) OF
MOTOR VEHICLE ACT AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL AND MFA. CROB,
COMING ON FOR ADMISSION, THIS DAY, S G PANDIT, J.,
DELIVERED THE FOLLOWING:
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MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
JUDGMENT
The appeal and cross-objections arise out of the judgment
and award, dated 18.06.2021 in MVC No.46/2017 on the file of
the II Additional Senior Civil Judge and Addl. MACT, Dharwad
(for short, 'the Tribunal'). The owner is in appeal, denying the
liability, whereas the claimant has filed cross-objection praying
for enhancement of compensation not being satisfied with the
quantum of compensation awarded under the Judgment.
2. Brief facts of the case leading to filing of the appeal
and cross-objection are:
(a) The claimant on 09.11.2015, while going on walk, a sports
motorcycle bearing No.KA-HR-99/TC-0676 came in a high
speed and dashed against the claimant while he was
crossing the road near Mummigatti bus-stand due to which
he fell down and sustained grievous injuries on the head
and all over the body. It is stated that, the injured claimant
was self employed, earning a sum of Rs.20,000/- per
month, aged about 24 years as on the date of the accident.
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(b) On issuance of notice, the respondent-owner of the
motorcycle appeared through his counsel and filed written
statement denying the averments of the claim petition and
further contended that, the motorcycle did not met with
any accident on 09.11.2015 as alleged. He has contended
that, the motorcycle is falsely implicated.
(c) In support of his claim, the claimant examined himself as
P.W.1 and the complainant as P.W.2, apart from examining
the Doctor as C.W.1, and produced 16 documents which
were marked as Ex.P.1 to Ex.P.16. On behalf of
respondents, R.W.1 - owner of the motorcycle was
examined and no documents were marked. The Tribunal,
on appreciation of the material on record, awarded total
compensation of Rs.13,19,000/- with interest at the rate of
8% per annum on the following heads:
1. Pain, shock and suffering Rs. 75,000/-
2. Loss of Amenities Rs. 25,000/-
3. Medical expenses Rs. 8,45,000/-
4. Income during laid up Rs. 30,000/-
period
5. Towards nourishment and Rs. 20,000/-
attendant charges
6. Loss of future income Rs. 3,24,000/-
Total Rs. 13,19,000/-
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While awarding the above compensation, the Tribunal has
assessed the monthly income of the injured claimant at
Rs.10,000/- per month, assessed the whole body disability
at 15%, and adopted multiplier of '18'. The respondent-
owner is in appeal denying the liability to pay compensation
and claimants are in cross-objection not being satisfied with
the quantum of compensation.
3. Learned counsel Sri. B.V.Somapur, appearing for the
appellant-owner submits that, in the accident that is alleged to
have taken place on 09.11.2015, the motorcycle in question is
not involved, but it has been falsely implicated. Learned
counsel would further submit that the accident took place on
09.11.2015, whereas P.W.2, the complainant lodged a
complaint after four days of the accident. Further, learned
counsel would also contend that the cross-objector/claimant
also contributed his negligence to the occurrence of the
accident. The accident had taken place on the National Highway
and the cross-objector/claimant, without taking any care and
caution, was crossing the road. It is further submitted that the
cross-objector/claimant could not have crossed the road and he
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ought to have crossed the road at the place earmarked for
pedestrian crossing. Thus, he submits that the cross-
objector/claimant had also contributed to the occurrence of the
accident.
4. Learned counsel for the appellant-owner of the
motorcycle contends that the cross-objector/claimant has not
suffered any fracture and hence he has not suffered any
disability. The assessment of whole body disability at 15% by
the Tribunal is erroneous when compared to the nature of
injuries sustained by the cross-objector/claimant. Learned
counsel would submit that the doctor, in his evidence, has
stated that the disability suffered by the cross-
objector/claimant is temporary and that the condition of the
cross-objector/claimant would improve on treatment. Further,
the learned counsel would submit that the Tribunal has
awarded exorbitant compensation on the head of medical
expenses at Rs.8,45,000/-. Learned counsel would submit that,
in terms of the medical bills, the cross-objector/claimant would
be entitled for Rs.2,25,000/- only, and not more than that.
Further, it is contended that the Tribunal committed a grave
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error in assessing the income of the injured claimant at
Rs.10,000/- per month in the absence of any material to
establish his income and avocation. Learned counsel would
submit that, for the year 2015 the notional income fixed by the
Karnataka State Legal Services Authority is Rs.8,000/- per
month, but the Tribunal, without there being any document or
evidence, has erroneously assessed the notional income of the
injured claimant/appellant at Rs.10,000/- per month which he
prays for revising on lower side. Thus, he prays for allowing the
appeal filed by the respondent-owner.
5. Learned counsel, Sri. R.A.Purohit for Sri. Dinesh
M.Kulkarni, learned counsel for the cross-objector/claimant
would submit that the compensation awarded by the Tribunal is
just compensation which needs no interference. Further, he
submits that it is not open for the appellant-owner to contend
that the vehicle is falsely implicated. By referring to Ex.P.7-
Motor Vehicle Inspector's Report, he submits that the
motorcycle was damaged and hence, counsel for appellant-
owner cannot say that motorcycle is not involved in the
accident. The learned counsel would further submit that the
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appellant-owner has failed to inform the police with regard to
the accident and has also failed to provide first-aid to the
claimant-injured. He submits that, P.W.2 filed complaint on the
fourth day of the accident, since the cross-objector/claimant
was under treatment. The learned counsel would submit that
the cross-objector/claimant, in terms of wound certificate at
Ex.P.10 has suffered head injury and facial injury which,
according to the doctor, the claimant-appellant has suffered
50% whole body disability. Learned counsel refers to Ex.P.13
submits that the doctor has rightly assessed the whole body
disability of the claimant-appellant at 50%. With regard to
income of the cross-objector/claimant, the learned counsel
would submit that the claimant was self-employed and was
earning more than Rs.20,000/- per month, and hence, the
Tribunal taking note of the same, has assessed the income of
the claimant-appellant at Rs.10,000/- per month which needs
no interference. Learned counsel would fairly submit that the
medical bills are submitted to an extent of Rs.2,25,000/- and
the claimant would be entitled to medical expenses to the
extent of bills submitted by him. Further, he submits that the
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compensation awarded on the other heads is on the lower side
and prays for enhancement of the same.
6. Having heard the learned counsel for the parties and
on perusal of the appeal papers including the records of the
Tribunal, the following points would arise for consideration:
i) Whether the appellant-owner of the vehicle has
proved that the motorcycle in question is
implicated in the accident?
ii) Whether the cross-objector/claimant would be
entitled for enhancement of compensation?
7. The answer to the above points would be in the
negative for the following reasons:
(a) The appellant-owner has mainly contended that the
motorcycle in question is not involved in the accident, but is
implicated in the accident. He further contended that the
accident has taken place on 09.11.2015, whereas the
complaint is filed after four days of the accident. When the
contention of the appellant-owner is examined by
considering the material on record, there is no merit in the
said contention of the appellant. Admittedly, the cross-
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objector/claimant was admitted to hospital on 09.11.2015
with history of road traffic accident and in terms of Ex.P.10
wound certificate, the claimant had suffered following
injuries:
1) C.L.W of about 2 cms on the left side of
forehead with haematoma of about 6 cms
2) Superficial abrasion on the left elbow
P.W.2 filed complaint before the police and it is also to be
noted that a Medico-legal case was sent by hospital
authorities to the police on 09.11.2015 itself. Moreover,
Ex.P.7-Motor Vehicle Inspector's report indicates the
damage caused to the motor cycle in question and
therefore, it can be safely said that due to rash and
negligent riding of the rider of the motorcycle, the accident
in question had occurred. Further, charge sheet is filed
against the rider of the motorcycle
(b) Nextly, the learned counsel for the appellant-owner
contended that the claimant also contributed his negligence
to the occurrence of the accident. It is relevant to note here
itself that the charge sheet is filed against the rider of the
motorcycle which is not disputed. Further, though the
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accident has taken place on the National Highway, the rider
of the motorcycle ought to have ridden the motorcycle
cautiously. Admittedly, the requirement of Section 134(a)
and (b) of the Motor Vehicles Act, 1988, to intimate the
police is not complied with. The rider of the motorcycle has
not performed his duty of informing the police and
providing first-aid to the injured person i.e., the cross-
objector/claimant. It is also relevant to note that the
appellant-owner has not taken any objection with regard to
contributory negligence in the objection statement or in the
cross-examination and the said contention is taken up for
the first time before this Court. In the above circumstances,
and in the peculiar facts of the present case, it cannot be
said that the claimant-cross-objector has also contributed
his negligence to the occurrence of the accident.
(c) The doctor-C.W.1 has deposed that the claimant has
sustained 50% whole body disability temporarily. He has
also deposed that, on treatment, the condition of the
claimant would improve. As stated by the learned counsel
for the appellant, the claimant has not sustained any
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fracture. Therefore, the disability assessed by the Tribunal
at 15% to the whole body taking note of evidence of C.W.1
as well as the medical records is proper and correct and
needs no interference.
(d) The Tribunal has assessed the income of the claimant at
Rs.10,000/- per month, which is wholly erroneous. No
material whatsoever is produced to establish the claimant's
avocation and income. In the absence of any proof to
establish the income, the Tribunal committed a grave error
in assessing the notional income of the injured-claimant at
Rs.10,000/- per month. The accident is of the year 2015.
The notional income fixed by the Karnataka State Legal
Services Authority for the year 2015 is Rs.8,000/- per
month. Hence, we assess the notional income of the injured
claimant at Rs.8,000/- per month as against Rs.10,000/-
per month assessed by the Tribunal. Since the income of
the cross-objector/claimant is assessed at Rs.8,000/- per
month, the claimant would be entitled to a sum of
Rs.2,59,200/- [Rs.8,000 x 15% (disability) x 12 x 18
(multiplier)] under the head 'loss of future income', and
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Rs.24,000/- under the head 'loss of income during laid
up period' taking the laid up period as three months.
(e) The Tribunal has awarded a sum of Rs.8,45,000/- towards
'medical expenses'. The learned counsel for the appellant
contends that the same is exorbitant when compared with
the medical bills produced before the Tribunal. The learned
counsel for the appellant-owner has filed a synopsis and the
learned counsel for the cross-objector/claimant has also
filed details of the medical bills and hospital bills indicating
the expenses incurred towards medical treatment. As per
the recalculation made by the learned counsels under the
aforesaid synopsis and details of the medical bills submitted
by them, the medical expenses would amount to
Rs.2,25,123/-. As the medical expenses is to be awarded
based on the bills, on considering the medical bills placed
on record, we deem it appropriate to awarded a sum of
Rs.2,25,000/- towards medical expenses. In view of the
same, the compensation awarded by the Tribunal in a sum
of Rs.8,45,000/- towards 'medical expenses' is reduced to
Rs.2,25,000/-, and accordingly, the claimant would be
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entitled to a sum of Rs.2,25,000/- towards 'medical
expenses'.
(f) Taking note of the treatment taken and the period of
treatment, the compensation awarded on the other heads
are proper and correct.
8. Thus, the claimant would be entitled for the
following modified compensation.
1. Pain, shock and suffering Rs. 75,000/-
2. Loss of Amenities Rs. 25,000/-
3. Medical expenses Rs. 2,25,000/-
4. Income during laid up period Rs. 24,000/-
5. Towards nourishment and Rs. 20,000/-
attendant charges
6. Loss of future income Rs. 2,59,200/-
Total Rs. 6,28,200/-
Thus, the claimants would be entitled to total compensation
of Rs.6,28,200/- instead of Rs.13,19,000/- awarded by the
Tribunal.
9. The Tribunal has awarded 8% interest on the
compensation awarded. But taking note of the present day
Bank interest rate, we deem it proper to reduce the interest
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from 8% to 6% on the compensation, now reassessed, from
the date of claim petition till the date of deposit.
ORDER
(a) M.F.A. No.101027/2021 filed by the owner of the
motorcycle is allowed in part.
(b) M.F.A. Crob. No.100066/2021 filed by the
claimant is dismissed.
(c) The impugned judgment and award, dated
18.06.2021, passed in M.V.C. No.46/2017 by the
Tribunal is modified to the extent that the
claimants are entitled to total compensation of
Rs.6,28,200/- instead of Rs.13,19,000/- awarded
by the Tribunal.
(d) The aforesaid compensation amount will bear
interest at the rate of 6% per annum from the
date of claim petition till date of realization.
(e) Apportionment with regard to deposit and
disbursement of the compensation shall be made
in the proportion as awarded by the Tribunal.
Registry is directed to transmit the entire amount in
deposit to the Tribunal, and also the records of the Tribunal.
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The Tribunal on disbursal of the modified compensation,
along with interest, shall refund the excess amount, if any, to
the appellant-owner of the motorcycle in question.
Sd/-
JUDGE
Sd/-
JUDGE
SVH,KMS
