Karnataka High Court
Shri Tontesh S/O Basavaraj ... vs Sri Vishnu Gundu Panhalkar on 4 March, 2024
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MFA No. 101270 of 2016
C/W MFA.CROB No. 100068 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101270 OF 2016 (MV-I)
C/W
MFA CROSS OBJ NO. 100068 OF 2023
IN MFA NO.101270/2016
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED,
REPRESENTED BY ITS DIVISIONAL MANAGER,
II FLOOR, MADIWALE ARCADE,
CLUB ROAD, BELAGAVI.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATROY AND
DEPUTY MANAGER, REGIONAL OFFICE,
SUMANGALA COMPLEX,
LAMINGTON ROAD, HUBBALLI.
...APPELLANT
(BY SRI. S. K. KAYAKMATH, ADVOCATE)
AND:
Digitally
signed by 1. TONTESH S/O. BASAVARAJ DIGAMBARMATH,
JAGADISH T R AGE: 32 YEARS, OCC: ENGINEER,
Location: R/O. HOUSE NO.4955, SHANKAR NAGAR,
HIGH COURT
OF NIDASOSI ROAD, SANKESHWAR,
KARNATAKA TALUK: HUKKERI, DIST: BELAGAVI.
2. SRI. VISHNU GUNDU PANHALKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. KUDUREMANE,
TALUK AND DIST: BELAGAVI.
...RESPONDENTS
(BY SMT. CHETANA S. BIRAJ, ADV. FOR RESPONDENT NO.1,
SRI. HARISH S. MAIGUR, ADV. FOR RESPONDENT NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT 1988, PRAYING TO CALL FOR THE RECORDS,
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MFA No. 101270 of 2016
C/W MFA.CROB No. 100068 of 2023
HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY
SETTING ASIDE THE JUDGMENT AND AWARD DATED 09.02.2016
PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND ADDITIONAL MACT, BELAGAVI, IN MVC NO.134/2014, WITH
COST IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA CROB NO.100068/2023
BETWEEN:
SHRI. TONTESH S/O. BASAVARAJ DIGAMBARMATH,
AGE: 39 YEARS, OCC: ENGINEER,
R/O. HOUSE NO.4955, SHANKAR NAGAR,
NIDASOSI ROAD, TAL: SANKESHWAR,
DIST: BELAGAVI-591313.
...APPELLANT
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND
1. SRI. VISHNU GUNDU PANHALKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. KUDREMANI, TAL & DIST: BELAGAVI.
2. THE ORIENTAL INSURANCE COMPANY LTD,
REPRESENTED BY ITS DIVISIONAL MANAGER,
II FLOOR, MADIWALE ARCADE,
CLUB ROAD, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. S. K. KAYAKMATH, ADV. FOR RESPONDENT NO.2)
THIS MFA.CROB IN MFA NO.101270/2016 IS FILED UNDER
ORDER 41 RULE 22 OF CPC. R/W SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO THE JUDGMENT AND AWARD
DATED 09/02/2016 IN MVC NO.134/2014 PASSED BY THE VI ADDL.
DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI IN
AWARDING RS.5,00,000/- BE KINDLY MODIFIED BY ENHANCING TO
RS.10,00,000/- @ 10% PER ANNUM FROM THE DATE OF PETITION,
TILL THE DATE OF PAYMENT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL AND MFA CROB, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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MFA No. 101270 of 2016
C/W MFA.CROB No. 100068 of 2023
JUDGMENT
MFA No.101270/2016 is filed by the Insurance Company
challenging the quantum of compensation awarded by the
Tribunal as well as negligence, whereas, MFA.CROB
No.100068/2023 is filed by the appellant/injured seeking for
enhancement of compensation. Both these appeals are filed,
being aggrieved by the judgment and award dated
09.02.2016 passed in MVC No.134/2014 on the file of VI
Addl. District & Sessions Judge & Addl. M.A.C.T, Belagavi (for
short, 'Tribunal').
2. Brief facts leading to filing of these appeals are that
on 17.10.2013, at 12.00 noon, on NH-A, near Hidkal Dam
Cross, the driver of Goods vehicle bearing Registration
No.KA-22-B-2378, drove the same in rash and negligent
manner and dashed two wheeler bearing Registration No.KA-
23-EF-6449, ridden by the appellant/injured. Due to
accident, the appellant/injured sustained grievous injuries.
He was shifted to the hospital and took treatment. Hence, he
filed claim petition seeking compensation.
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3. The respondent entered appearance before the
Tribunal and filed statement of objections denying all the
averments made in the petition and sought for dismissal of
the claim petition.
4. The Tribunal considering the evidence available
on record has awarded total compensation of Rs.4,85,000/-
along with interest at the rate of 9% per annum from the
date of petition till realization. Both the appellant/injured as
well as the respondent/Insurance Company are in the appeal
before this Court.
5. Sri. S K. Kayakmath, learned counsel appearing
for the appellant at the outset submits that they restrict their
appeal only insofar as the quantum of compensation. He
submits that insofar as the driver of the offending vehicle
possessing driving license of LMV non-transport vehicle
concerned, the said issue is covered by the decision of the
Hon'ble Supreme Court in the case of MUKUND
DEWANGAN Vs ORIENTAL INSURANCE CO.LTD (2017)
14 SCC 663. He submits that the Tribunal has committed
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grave error in fastening the entire liability on the driver of
the offending vehicle. As per Ex.P3-sketch available on
record clearly indicates that the accident has taken place in
the middle of the road, hence, the appellant/injured is also
contributed to the accident in question and required to
fastened equal liability insofar as the accident is concerned.
He further argued that the Tribunal has committed grave
error in assessing the disability of the appellant/injured at
15% and awarding compensation under the head of loss of
future prospectus at Rs.1,98,900/-. The appellant/injured
has not produced any evidence to substantiate that after the
accident he has resigned from the job and unable to carry
out any activity, hence, the award of compensation under
the head of loss of future income cannot be granted. He
further submits that the award of interest at the rate of 9%
per annum by the Tribunal is contrary to the settled principle
of law and he seeks to modify the same by restricting to 6%
per annum. Hence, he seeks to allow the appeal.
6. Per contra, Smt. Chetana S. Biraj, learned
counsel appearing for the cross-objector/appellant supports
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the impugned judgment of the Tribunal and submits that the
Tribunal taking note of the material evidence available on
record has assessed the disability of the injured at 15% to
the whole body. She further submits that the Tribunal has
committed grave error in assessing the income of the
appellant/claimant at Rs.6,500/- contrary to the salary slip
available on record at Ex.P8. It is further submitted that the
Jurisdictional Police after investigation has filed charge sheet
against the driver of the offending vehicle. Hence, fastening
of the entire liability on the Insurance Company does not
warrant any interference. It is submitted that the award of
compensation by the Tribunal on other heads are also on
lower side which requires to be interfered.
7. I have heard the arguments of the learned
counsel appearing for the parties and perused the
memorandum of appeals and the Tribunal records. The points
that would arise for consideration in these appeals are:
a) Whether the Tribunal has justified in holding that
the driving of the vehicle bearing Registration
No.KA-22-B-2378 was negligent and caused the
accident in question?
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B) Whether the Tribunal has justified in awarding
the compensation and requires any modification?
8. The answer to the above points is 'affirmative' for
the following reasons.
9. It is not in dispute that the appellant/claimant has
met with a road accident on 17.10.2013. It is also not in
dispute that the offending vehicle bearing Registration
No.KA-22-B-2378 was insured with the appellant/Insurance
Company. The appellant/claimant to substantiate his claim
before the Tribunal has examined himself and other two
witnesses and produced the documents as Exs.P1 to P21.
The Tribunal on appreciation of evidence available on record
has awarded total compensation of Rs.4,85,000/- along with
interest at the rate of 9% per annum.
10. Insofar as the contention of the
appellant/Insurance Company that the accident has taken
place in the middle of the road hence, the rider of the motor
cycle i.e., appellant/injured had also contributed to the
accident is concerned, it is required to be rejected for the
reason that the sketch at Ex.P3 indicates the accident that
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has taken place at the junction and nothing can be inferred
from Ex.P3. Hence, it cannot be the basis to come to a
conclusion that the rider of the motor cycle was also
negligent. Admittedly, the Investigating officer after
completion of investigation has filed charge sheet in Crime
No.254/2013 against the driver of the offending car. Taking
note of the charge sheet material, it is evident that the
driver of the car alone was negligent and caused the accident
and the appellant/Insurance Company has not challenged
the charge sheet nor adduced any independent witness to
support their claim of contributory negligence of rider.
11. The contention of the learned counsel for the
appellant/insurer that the appellant/injured has suffered
fractural injuries however, there is no disability and he has
not placed evidence to claim that he has lost the future
income. On perusal of the evidence of PW1 at paragraphs 3
and 4, it is clearly stated that he is an engineer by profession
and was getting salary of Rs.18,000/- per month and he had
also produced the salary slip. Further he stated that due to
the injuries he has lost his job and also lost the marriage
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prospects. The witness has been cross-examined by the
appellant/Insurance Company however, nothing has been
elucidated. It would be useful to refer the evidence of PW2
which reads as under:
"After the accident, the said patient was patient
admitted to Lakeview Hospital, Belagavi. The patient
had brought Discharge Summary of the said Hospital
and as per said Discharge Summary sheet, the said
patient has sustained following injuries:
a) Comminuted fracture distal radius Left.
b) Intra-articular extension with fracture ulnar styloid.
C) With fusual injuries and nasal bone fracture.
On examination I certify that scar on left forearm with
wasting of forearm muscles, deformity of left wrist
and pinch and grip strength reduced by 20% on left
side compared to right side. The functional disability
is:
a) Lifting weight Not possible..
b) Doing labourious work Not possible.."
PW2 opined that the appellant/injured has suffered
permanent physical disability amounting to 30% to left upper
limb and the said witness has been cross-examined. In the
cross-examination, he admitted that, unless, he knows the
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nature of avocation of the appellant, he cannot say whether
the injuries sustained by him is the functional disability. In
further cross-examination, he has stated that it is incorrect
to suggest that after the treatment, appellant/injured has
become completely alright. It would be useful to refer the
evidence of PW3, who is not treated the doctor however, he
has examined the appellant and based on the medical
records he opined that he has examined PW1 and observed
as under:
a) Breathing trouble due to nose injury,
b) Disability and hardship in chewing food,
c) Complains of loss of sensation on the left side of face
involving upper-lip,
d) Often facio-dental pain with episodes of left sided
headaches,
e) Gen. bodily weakness, unable to work daily cores
after the accident.
A) External face examination showed clinically that:
a) Face skin scar below the left eye brow 10 cms in
length.
b) Face skin scar on the left frontal bone 2 cms in
length.
c) Face skin scar on left maxillary region by side of
nose.
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d) Both face tempero mandible joints painful and
discomfort tested by physical palpation by fingers.
B) Internal oral examination again showed the clinical
picture:
a) Maxilliary upper left teeth Nos.23, 24 and 25 minor
grinders felt tender and painful damaged.
C) Examination in chief for head and face radiology by
Dr. Ginde on 20.09.2014 Radiological evidence of nasal
bones: Sic. :
a) Depressed and malunited fracture of the nasal
bones.
b) Radiological evidence of P.N.S Water's view Sic.
Malunited fracture of inferior wall of left orbit with
surgical wires in situ. Defective bony parts are marked
blue arrows.
D) Assessment of dysfunctional disability by RTA hurt.
a. fractured and mal united nasal bones... grievous 20%
b. fractured & mal united interior wall of left orbit-Gr. 10%
c. Loss of sensory sensation of the side of face check. 05%
d. Maxillary upper teeth Nos.23, 24 & 25 hurt &
damage [3% per tooth) 09%
----
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Total disability 44%
12. PW3 after examining the appellant/injured has
opined that the appellant/injured has suffered 44% disability
equal to just 15% to the whole body and based on that he
has issued the disability certificate. Taking note of the
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evidence of PW1-claimant and expert doctors/PW2 and PW3,
it is clear that the appellant/claimant has suffered functional
disability and there are fractural and mal united nasal bones,
fractured mal united interior wall of left orbit -Gr, loss of
sensory and was on the side of the face of the check. Taking
note of these aspects, PW3 has come to a definite conclusion
that the appellant/claimant suffered disability at 44%. The
Tribunal taking note of the oral evidence of PW2 and PW3
has assessed the whole body disability of the
appellant/claimant at 15% and assessed loss of future
income. This Court does not find any error in awarding
compensation under the aforesaid head. The
appellant/Insurance Company has not placed any evidence
contrary to the evidence given by the doctors. Thus, the
appellant/claimant would be entitled to modified
compensation on the head of loss of future earning capacity:
Rs.7,000 x 12 x 17 x 15% = Rs.2,14,200/-
13. The Tribunal has committed error in assessing the
income of the appellant/claimant at Rs.6,500/- per month.
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The appellant/claimant has produced salary certificate at
Ex.P8(A), however, he has not adduced the evidence of the
employer nor placed any corroborative evidence to
substantiate that he was drawing Rs.18,000/- per month.
Admittedly, the evidence placed by the appellant/claimant is
not sufficient to assess the income of the appellant/claimant.
Hence, placing reliance on the chart prepared by the
Karnataka State Legal Services Authority, this Court
assesses the income of the appellant/injured at Rs.7,000/-
per month. Taking note of the injuries suffered by the
appellant, this Court is of the considered view that the
appellant/claimant is entitled to additional sum of
Rs.10,000/- under the head of pain and suffering and
entitled to Rs.21,000/- (i.e., Rs.7,000 x 3 months) under
the head of loss of income during the treatment period as
against Rs.19,500/-. The award of compensation on other
heads are unaltered. The Tribunal has committed an error in
awarding interest at the rate of 9% per annum. Taking note
of the prevailing rate of interest in the nationalized bank, it
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would be just and proper to award interest at the rate of 6%
on the compensation amount.
Sl.No. Particulars Amount
1 Pain and sufferings Rs. 60,000
2 Loss of future happiness and Rs. 60,000/-
amenities
3 Loss of income during the treatment Rs. 21,000/-
period
4 Incidental charges Rs. 21,000/-
5 Medical expenses Rs.1,35,600/-
6 Loss of future income Rs.2,14,200/-
7 Future medical expenses Rs. 15,000/-
Total Rs.5,26,800/-
14. For the aforementioned reasons, I pass the
following:
ORDER
a) Appeals are allowed in part.
b) The impugned judgment and award
passed by the Tribunal to an extent that the
appellant/injured would be entitled to total
compensation of Rs.5,26,800/- as against
Rs.4,85,000/- awarded by the Tribunal.
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c) The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till the date of
payment.
d) The appellant/claimant is not entitled for
interest for a delayed period of 1762 days.
e) On such deposit, the same shall be
released in favour of the appellant/claimant.
f) The amount in deposit along with records
should be transmitted back to the Tribunal
forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
PMP
