Karnataka High Court

Yallappa S/O Hanamanth vs Chandrappa And Ors on 4 March, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                 NC: 2024:KHC-K:1939-DB
                                                       MFA No. 200718 of 2020




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                           DATED THIS THE 4TH DAY OF MARCH, 2024

                                          PRESENT

                        THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                            AND
                            THE HON'BLE MR. JUSTICE K V ARAVIND

                        MISCL. FIRST APPEAL NO. 200718 OF 2020 (MV-I)

                   BETWEEN:

                        YALLAPPA
                        S/O HANAMANTH,
                        AGE: 30 YEARS,
                        OCC: LORRY DRIVER,
                        NOW NIL, THROUGH HIS GUARDIAN
                        AND WIFE SONAMMA W/O YALLAPPA,
                        AGE: 26 YEARS, OCC: NIL,
                        R/O: NIRNA, TQ: HUMNABAD,
                        DIST: BIDAR, NOW RESIDING AT
                        PLOT NO. 21, KALABURAGI.
Digitally signed
by VARSHA N
RASALKAR
                                                                  ...APPELLANT
Location: HIGH
COURT OF
                   (BY SRI. NAGARAJ PATIL, ADVOCATE)
KARNATAKA


                   AND:

                   1.   CHANDRAPPA,
                        S/O TULAJAPPA,
                        AGE: MAJOR,
                        OCC: OWNER OF VEHICLE,
                        (AS PER RC),
                        R/O: 1/45, NIRNA,
                        TQ: HUMNABAD,
                        BIDAR-585330.
                            -2-
                              NC: 2024:KHC-K:1939-DB
                                  MFA No. 200718 of 2020




2.   NARASIMHA
     S/O PENTAPPA UPAR,
     AGE: MAJOR,
     OCC: OWNER OF VEHICLE,
     (AS PER POLICY),
     R/O: VILLAGE BELLURA,
     TQ: & BIDAR-585330.

3.   UNITED INDIA INSURANCE CO. LTD.,
     BASAVA SHREE COMPLEX,
     8-10-268 TO 273,
     1ST FLOOR,
     BEHIND GANESH MAIDAN,
     STADIUM ROAD,
     BIDAR-585401.
     DIVISIONAL OFFICE,
     CENTURY COMPLEX,
     OPP: TRIVENI TALKIES,
     SUPER MARKET,
     KALABURAGI-585101.
     REPRESENTED BY ITS OFFICER.

                                         ...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R3;
     NOTICE TO R1 & R2 ARE DISPENSED WITH)

       THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V
ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
27.01.2020 PASSED IN MVC NO.628/2018 ON THE FILE OF III
ADDL.SENIOR CIVIL JUDGE AND MACT KALABURAGI.         AND
ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION
AMOUNT OF RS.21,73,510/- ONLY AS CLAIMED BY THE
APPELLANT BEFORE THIS HON'BLE COURT.


       THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY,    H.T.NARENDRA     PRASAD    J.,   DELIVERED   THE
FOLLOWING:
                                 -3-
                                  NC: 2024:KHC-K:1939-DB
                                         MFA No. 200718 of 2020




                           JUDGMENT

This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimant being aggrieved by the judgment and

award dated 27.01.2020 passed by the III Addl. Senior

Civil Judge and MACT, Kalaburagi in MVC No. 628/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 24.03.2017 at about 5:30 p.m.

the claimant was proceeding on motorcycle bearing

No.KA-38/Q-1608 as a pillion rider with one Laxman on

Humnabad - Kalaburagi road. At that time, the rider of

the said motorcycle rode the vehicle in rash and negligent

manner, due to which the rider lost control of the vehicle

and the accident occurred. As a result of the aforesaid

accident, the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section 166

of the Act seeking compensation. It was pleaded that he

spent huge amount towards medical expenses,

NC: 2024:KHC-K:1939-DB

conveyance charges, etc. It was further pleaded that the

accident occurred purely on account of the rash and

negligent riding of the rider of the motorcycle.

4. The respondent Nos.1 and 2 did not appear

before the Tribunal in spite of service of notice and was

placed ex-parte. Respondent No.3 appeared through its

counsel and filed written statement in which the

averments made in the petition were denied. It was

pleaded that the petition itself is false and frivolous in the

eye of law. It was further pleaded that there is no

negligence on the part of the rider of the vehicle. The

rider of the offending vehicle did not have valid driving

licence as on the date of the accident. The liability is

subject to terms and conditions of the policy. The age,

avocation and income of the claimant and the medical

expenses are denied. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, he sought for dismissal of the petition.

NC: 2024:KHC-K:1939-DB

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The guardian of the petitioner was examined

as PW-1, the doctor is examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P.15. On behalf

of the respondent No.3 there was no oral evidence, but

got exhibited document namely Ex.R.1. The Claims

Tribunal, by the impugned judgment, inter alia, held that

the accident took place on account of rash and negligent

driving of the rider of the motorcycle, as a result of which,

the claimant sustained injuries. The Tribunal further held

that the claimant is entitled to a compensation of

Rs.9,26,490/- along with interest at the rate of 6% p.a.

and directed the respondent No.3 to deposit the

compensation amount along with interest. Being

aggrieved, the present appeal has been filed.

6. Sri.Nagaraj Patil, learned counsel for the

claimant contends that at the time of the accident, he was

working as a driver and due to that accident he has

NC: 2024:KHC-K:1939-DB

suffered gravies injuries. PW-2/the doctor in his evidence

has deposed that the claimant has suffered disability of

74% to the whole body. Hence, he is unable to do his day

to day work. This Court by order dated 20.06.2023 has

referred the matter to Gulbarga Institute of Medical

Sciences, Kalaburagi to assess the disabilitly. As per the

report submitted by the Gulbarga Institute of Medical

Sciences, Kalaburagi, the claimant has suffered

neurological disability at 88%. Due to this disability, he is

unable to do his avocation. Therefore, the functional

disability has to be assessed as 100%. In support of his

contention, he has relied upon the decision of the Apex

Court in the case of ERUDHAYA PRIYA vs. STATE

EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC

Online SC 601 and in the case of 'PAPPU DEO YADAV vs.

NARESH KUMAR AND OTHERS' AIR 2020 SC 4424, he is

entitled for future prospects. Due to the neurological

disability, he requires attendant to do his day to day work.

Hence, the overall compensation awarded by the Tribunal

is on the lower side.

NC: 2024:KHC-K:1939-DB

7. Secondly, at the time of the accident he was

working as a driver and earning Rs.15,000/- per month.

The Tribunal has assessed the notional income of the

claimant as Rs.8,000/- per month, is on the lower side.

Hence, he seeks for enhancement of the compensation.

8. On the other hand, Smt.Preeti Patil Melkundi,

the learned counsel for the Insurance Company contends

that the doctor/PW-2 in his evidence has deposed that the

claimant has suffered 74% of disability to whole body, but

he has not produced any documents to prove that he was

working as a driver. Considering his age and avocation,

the Tribunal has rightly considered the whole body

disability as 30%. She further contends that there is no

material to prove that the claimant is unable to do his day

to day work and it is not proved that the disability suffered

by the claimant is permanent disability. Therefore, he is

not entitled for the future prospects. She further contends

that considering the evidence of the doctor and injuries

suffered by the claimant, the overall compensation

NC: 2024:KHC-K:1939-DB

awarded by the Tribunal is just and reasonable. Hence,

she seeks for dismissal of the appeal.

9. Heard the learned counsel for both parties and

perused the judgment and award of the Tribunal.

10. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred on

24.03.2017 due to rash and negligent driving of the

offending vehicle by its driver. Due to the accident the

claimant has suffered the following injuries:

"Multiple abscesses all over the body, Punctured wound over right knee joint, Fracture of right zygomatic arch, multiple hemorrhagic contusions over corpus callosum and left thalami"

11. PW-2/doctor in his evidence has categorically

deposed that the claimant has suffered 74% disability to

the whole body and he was unable to do day to day work.

This Court by order dated 20.06.2023 has referred the

matter to Gulbarga Institute of Medical Sciences,

Kalaburagi and directed the Director of the said Institute

NC: 2024:KHC-K:1939-DB

to constitute a Board to examine the appellant and assess

the disability. As per the order of this Court, the Medical

Board has submitted its report and issued disability

certificate. As per the disability certificate, the claimant

has suffered neurological disability of 88%. The specific

contention of the claimant is that he was working as

driver and due to the neurological disability, he cannot do

his avocation. Considering the evidence of doctor,

disability certificate issued by the Gulbarga Institute of

Medical Sciences, Kalaburagi and injuries suffered by the

claimant, we are of the opinion that the functional

disability of the claimant is assessed at 100%. In view of

law laid down by the Apex Court in the case of

'ERUDHAYA PRIYA' and in the case of 'PAPPU DEO

YADAV' (supra), the claimant is also entitled for future

prospects.

12. Even though, the claimant claims that he was

earning Rs.15,000/- per month, he has not produced any

documents to establish the same. Therefore, the notional

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NC: 2024:KHC-K:1939-DB

income is to be assessed as per the guidelines issued by

Karnataka Legal Service Authority. The accident occurred

in this case is of the year 2017, hence the notional income

is considered as Rs.10,250/- per month. In view of the

judgment of the Hon'ble Apex National Insurance Co.

Ltd., Vs. Pranay Sethi, (2017) 16 SCC 680, 40% of the

income has to be added towards future prospects.

Thus the monthly income of the claimant comes to

Rs.14,350/-. The claimant was aged 28 years at the time

of the accident, the applicable multiplier would be '17'.

Thus, the claimant is entitled for compensation of

Rs.29,27,400/- (Rs.14,350*12*17*100%) on account of

'loss of future income'.

13. Considering the injuries sustained by the

claimant and considering the medical records, we are of

the opinion that compensation awarded by the Tribunal

under other heads is just and reasonable. Hence,

compensation awarded by the Tribunal under other heads

have been retained as it is.

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NC: 2024:KHC-K:1939-DB

14. Thus, the claimant is entitled to the following

compensation:

                          As awarded          As awarded by
                             by the             this Court
  Compensation
                           Tribunal
  under different                                 (Rs.)
      Heads                 (Rs.)

 Pain and sufferings                 50,000          50,000

 Medical expenses             3,16,890              3,16,890

 Attendant, Food                     20,000          20,000
 and conveyance
 charges

 Loss of income                      30,000          30,000
 during treatment
 period

 Loss of amenities                   20,000          20,000

 Loss of future               4,89,600             29,27,400
 income

                  Total      9,26,490             33,64,290

15. Accordingly, we pass the following:

ORDER

a. The appeal is allowed in part.

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NC: 2024:KHC-K:1939-DB

b. The judgment of the Claims Tribunal is

modified.

c. The claimant is entitled to a total compensation

of Rs.33,64,290/-.

d. The Insurance Company is directed to deposit

compensation amount along with interest @ 6% p.a. from

the date of filing of the claim petition till the date of

realization, within a period of six weeks from the date of

receipt of copy of this judgment.