Karnataka High Court
Shri. Mhatru S/O Hanamant Kutre vs Shri. Balkrishna Gopal Godse on 7 March, 2024
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MFA No. 100812 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100812 OF 2021 (MV-I)
BETWEEN:
SHRI. MHATRU
S/O. HANAMANT KUTRE,
AGE: 40 YEARS,
OCC: ELECTRICIAN AND
AGRICULTURE, (NOW NIL),
R/O. BEKWAD,
TALUKA-KHANAPUR,
DISTRICT: BELAGAVI,
AT PRESENT-SHINOLI,
TALUKA-CHANDGAD,
DISTRICT-KOLHAPUR.
...APPELLANT
Digitally (BY SRI. DEEPAK S. KULKARNI, ADVOCATE)
signed by
JAGADISH T R
Location: AND:
HIGH COURT
OF
KARNATAKA 1. SHRI. BALKRISHNA GOPAL GODSE,
AGE: MAJOR,
OCCUPATION: BUSINESS,
R/O. C.C.B-72, SHIVANJALI,
S. V. COLONY,
TILAKWADI, BELAGAVI,
TALUKA & DISTRICT: BELAGAVI,
(OWNER OF TATA- HGV (TIPPER)
VEHICLE BEARING REGISTRATION
NO.KA-22/B-4183).
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MFA No. 100812 of 2021
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE NO.1568M,
2ND FLOOR,
ABOVE BANK OF BARODA,
RAMDEV GALLI,
BELAGAVI-590002,
TALUKA & DISTRICT-BELAGAVI.
...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR R2,
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, PRAYING TO THE JUDGMENT AND AWARD
DATED 10-11-2020, IN M.V.C. NO.1132/2017 PASSED BY THE
HON'BLE II ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER OF
ADDITIONAL MACT, BELAGAVI, IN AWARDING RS. 2,82,900/- @ 6%
PER ANNUM BE KINDLY BE MODIFIED BY ENHANCING IT TO
RS.10,00,000/- @ 18% PER ANNUM FROM THE DATE OF THE
PETITION, TILL THE DATE OF THE PAYMENT BY HOLDING THE
RESPONDENTS LIABLE TO PAY THE COMPENSATION, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 100812 of 2021
JUDGMENT
This appeal is filed by the appellant/injured seeking for
enhancement of compensation being aggrieved by the
judgment and award dated 10.11.2020, passed in MVC
No.1132/2017 on the file of II Addl. Sessions Judge & Member
of Addl. MACT, Belagavi (for short, 'Tribunal').
2. Brief facts leading to filing of this appeal are that on
08.08.2016, appellant/injured after completing the work was
proceeding on the motor cycle bearing Registration No.KA-
22/EP-6538 along with the pillion rider. At that time, the driver
of Tata-HGV (Tipper) vehicle bearing Registration No.KA-22/B-
4183 driven in high speed, in a rash and negligent manner,
dashed to the appellant vehicle, resultantly, the appellant and
the pillion rider fell down from the motor cycle, sustained
grievous injuries to his hands and legs. It is further averred
that the appellant was provided treatment at KLE's Hospital,
Belagavi and incurred expenditure of more than Rs.2,00,000/-
for the aforesaid injuries. It is also averred that the
appellant/injured was hale and healthy prior to the accident in
question. Due to the accident, he has suffered disability and
lost the earning capacity. He was earning Rs.20,000/- per
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month prior to the accident and was maintaining the family out
of the said income. Hence, he filed claim petition seeking for
compensation.
3. The respondent entered appearance before the
Tribunal and filed statement of objections denying the mode
of accident, age, occupation, income and injuries sustained
by the appellant/injured. It is also averred that the accident
in question is caused due to the negligent driving of the
motor cycle by the appellant himself and sought for dismissal
of the claim petition.
4. During the course of trial, the appellant/claimant
examined himself as PW1 and got examined Dr.S R. Angadi
as PW2 got marked 19 documents as Ex.P1 to Ex.P19. The
respondents have not adduced any oral evidence with the
consent got marked copy of the Insurance Policy as Ex.D1.
5. The Tribunal after analyzing the evidence available
on record awarded total compensation of Rs.2,82,900/-
along with interest at the rate of 6% per annum from the
date of claim petition till realization. Being aggrieved by the
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same, the present appeal is filed by the appellant/claimant
seeking for enhancement of compensation.
6. I have heard the arguments of the learned counsel
for the appellant/claimant and learned counsel for the
respondents.
7. Sri.Deepak S. Kulkarni, learned counsel appearing
for the appellant/claimant submits that the Tribunal has
committed grave error in assessing the income of the injured
at Rs.7,000/- per month which is contrary to the evidence
available on record. He further argues that the Tribunal has
committed further error in assessing the disability of the
appellant at 14%, which is contrary to the oral evidence of
PW2 and the medical evidence available on record and he
seeks to re-assess the same. He also argues that the
Tribunal has committed error in not awarding any
compensation under the head of loss of future prospects of
the appellant/injured and the Tribunal has also committed
error in not awarding any compensation under the head of
future medical expenses. He submits that the award of
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compensation by the Tribunal on other heads is also on lower
side requires to be re-calculated based on the evidence.
Hence, he seeks to allow the appeal.
8. Per contra, Sri.S S. Koliwad, learned counsel
appearing for the respondent No.2/Insurance Company
supports the impugned judgment and award of the Tribunal
and submits that PW2 is a stock witness and he has habit of
issuing Disability Certificate on higher side to the injured in
the accident claims. He submits that his evidence cannot be
the sole basis to assess the disability of the
appellant/injured. He argues that the Tribunal has rightly
assessed the disability at 14% which does not call for any
interference. He also submits that the award of
compensation by the Tribunal on other heads is just and
proper and does not call for any enhancement.
9. Having heard the arguments of learned counsel for
the appellant and the learned counsel for the respondents.
Perused the material available on record and certified copies
of the evidence and the exhibits made available by the
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learned counsel appearing for the appellant. The point that
would arise for consideration in this appeal is:
a) Whether the appellant/claimant is entitled for the
higher compensation?
10. The answer to the above point is in the 'affirmative'
for the following reason.
11. The parties to the proceeding do not dispute that
the appellant has suffered grievous injuries in a road
accident on 08.08.2016. It is also not in dispute that the
appellant has taken treatment at KLE's Hospital, Belagavi. In
support of his claim he has examined Dr.S R. Angadi as PW2,
who has examined the appellant and issued the Disability
Certificate at Ex.P11. On perusal of the oral evidence of PW2
and medical evidence available on record, it is evident that
the appellant has sustained 1) Left Knee complete ACL and
PCL tear and Avulsion of poplitial and iliotibial track from
tibial attachment and tear of lateral patellar lig and
bicepsfemoris tendon 2) Fracture left scaphoid. Based on the
aforesaid injuries, PW2 has assessed the disability of 10% to
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left wrist joint and 30% to left knee joint. This Court on re-
examining the medical evidence available on record is of the
considered view that, the Tribunal has justified in assessing
the disability of the appellant/injured at 14% which does not
call for any modification. This Court is of the considered view
that the Tribunal committed grave error in assessing the
notional income of the appellant at Rs.7,000/- per month.
Admittedly, the appellant has not produced any evidence to
substantiate the income. In the absence of any such
evidence, this Court assesses the income of the appellant at
Rs.8,750/- placing its reliance on the chart prepared by the
Karnataka State Legal Services Authority. Insofar as the
contention that the Tribunal has not awarded any
compensation under the head of loss of future prospects is
concerned, the same is required to be rejected for the reason
that the appellant has not placed any evidence before the
Tribunal to come to a definite conclusion that due to the
accident, the appellant has sustained such disability and he
is unable to carry out any activity and his activity has been
reduced substantially. In the absence of any such evidence,
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the appellant is not entitled to any compensation under the
head of loss of future prospects. Thus, the
appellant/claimant would be entitled to modified
compensation on the head of loss of future earning capacity:
Rs. 8,750 x 12 x 15 x 14/100 = Rs.2,20,500/-
12. The Tribunal has committed grave error in not
awarding any compensation under the head of future medical
expenditure. Taking note of the injuries suffered by the
appellant and also taking note of Ex.P9, the appellant is
entitled to Rs.25,000/- under the head of future medical
expenses. The Tribunal has committed error in awarding
lower compensation under the heads of loss of income during
laid-up period, loss of happiness and future amenities and
incidental expenses. This Court taking note of the injuries
suffered by the appellant and keeping in mind the oral
evidence of PW2 and the medical evidence available on
record is of the considered view that the appellant is entitled
to Rs.26,250/- under the head of loss of income during the
laid-up period as against Rs.3,500/-. The appellant is entitled
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to additional sum of Rs.25,000/- under the head of loss of
happiness and future amenities. Similarly, additional
Rs.10,000/- under the head of incidental expenses
including attendant charges, food nourishment and
transportation etc. The appellant/injured is entitled for
interest at the rate of 6% per annum of the enhanced
compensation.
Sl.No. Particulars Amount
1 Pain and suffering Rs. 50,000/-
2 Loss of income during laid up period Rs. 26,250/-
3 Loss of future income or earnings Rs.2,20,500/-
4 Loss of happiness and future amenities Rs. 35,000/-
5 Medical expenses Rs. 25,000/-
6 Incidental expenses Rs. 20,000/-
Total Rs.3,75,500/-
13. For the aforementioned reasons, I pass the
following:
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ORDER
a) Appeal is 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.3,75,500/- as against
Rs.2,82,900/- awarded by the Tribunal.
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) On such deposit, the same shall be
released in favour of the appellant/claimant.
e) Draw modified award accordingly.
Sd/-
JUDGE
PMP
