Karnataka High Court

Sabanna S/O Pundalik Itagi vs Dileep S/O Hanamanthray Hunsagi And Anr on 29 May, 2024

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                                                        MFA No.201241 of 2017




                                IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                              DATED THIS THE 29TH DAY OF MAY, 2024

                                             PRESENT

                             THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                               AND
                               THE HON'BLE MR. JUSTICE RAJESH RAI K

                           MISCL. FIRST APPEAL NO.201241 OF 2017 (MV-I)

                      BETWEEN:

                      SABANNA
                      S/O PUNDALIK ITAGI
                      AGE: 26 YEARS,
                      OCC: PRIOR TO THE ACCIDENT STUDENT &
                      PRIVATE WORK, NOW NIL,
                      R/O : MUDNAL, TQ: MUDDEBIHAL,
                      DIST: BIJAPUR - 586 212.
                                                                  ...APPELLANT

                      (BY SRI S.D. SAGARI, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ              AND:
DHUTTARGAON
Location: HIGH
COURT OF
KARNATAKA             1.   DILEEP
                           S/O HANAMANTHRAY HUNSAGI,
                           AGE: 32 YEARS,
                           OCC: BUSINESS,
                           R/O: HUNSAGI,
                           TQ: SHORAPUR,
                           DIST : YADGIR - 585 215.

                      2.   THE BRANCH MANAGER
                           THE UNITED INDIA
                           INSURANCE COMPANY LIMITED,
                           SANGAM BUILDING,
                                -2-
                                    NC: 2024:KHC-K:3414-DB
                                        MFA No.201241 of 2017




    S.S. FRONT ROAD, BIJAPUR - 586 101.
                                                  ...RESPONDENTS

(BY SRI VARUN PATIL, ADVOCATE FOR
    SRI SHIVANAND PATIL, ADVOCATE FOR R2;
    V/O DTD.13.10.2020 NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS IN
M.V.C.NO.96/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AND M.A.C.T-XII VIJAYAPUR AND
MODIFY THE JUDGMENT AND AWARD DATED 17.04.2017 BY
ALLOWING THE APPEAL AS PRAYED FOR, IN THE ENDS OF
JUSTICE AND EQUITY.

     THIS MFA COMING ON FOR HEARING THIS DAY, ASHOK
S. KINAGI J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This miscellaneous first appeal is filed by the

petitioner challenging the judgment and award dated

17.04.2017 passed in MVC No.96/2013 by the III Addl.

Senior Civil Judge and MACT-XII Vijaypur, (hereinafter

referred to as 'the Tribunal', for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims Tribunal.

Appellant is the petitioner and the respondents are the

respondents.

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3. The facts giving rise to filing of the appeal

briefly stated are that, on 21.09.2012 at about 6.30 a.m.,

the petitioner and another pillion rider were proceeding on

a Hero Honda motorcycle ridden by the petitioner. While

proceeding near Mudnal cross, at that time, one Tata

Indica Car bearing Reg.No.KA-33/M-1730 came in a very

high speed and in rash and negligent manner and dashed

to the aforesaid motorcycle on which the petitioner and

another were traveling and caused the accident. As a

result of which both the petitioner and pillion rider

sustained grievous injuries. The petitioner was hale and

healthy prior to the accident. It is contended that after

the accident, the petitioner has suffered permanent

disability. It is further contended that the petitioner was

doing private work and earning Rs.12,750/- per month.

Hence, the petitioner filed claim petition under Section 166

of M.V. Act seeking compensation for having sustained

injuries in the road traffic accident and accordingly prays

to allow the claim petition.

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4. Though notice served to the respondent No.1,

he remained absent and he is placed ex parte.

5. After service of summons, respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition and

denied that the rider of the offending vehicle was

possessing a valid and effective driving license as on the

date of the accident. Hence, prays to dismiss the claim

petition.

6. The pillion rider has also filed a claim petition in

MVC No.97/2013. The Tribunal clubbed both the claim

petitions and framed the common issues for consideration.

7. In order to substantiate the case, petitioner

herein got examined himself as PW.2. In order to prove

the disability, examined the doctor as PW.3 and got

marked 23 documents as Exs.P1 to P23. In rebuttal, the

respondents have not entered into witness box, but got

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marked the copy of Insurance Policy as Ex.R.1 and

endorsement issued by RTO is marked as Ex.R.2.

8. The Tribunal, after recording the evidence and

considering the material on record, allowed the claim

petition in part awarding total compensation of

Rs.1,58,820/- along with interest at the rate of 6% p.a.

from the date of the petition, till its realization and

directed the respondent No.2 to deposit the compensation

amount. Being dissatisfied with the compensation awarded

by the Tribunal, the petitioner has filed the present appeal

seeking enhancement of the compensation amount.

9. We have heard the learned counsel for

petitioner and learned counsel for respondent No.2-

Insurance Company.

10. Learned counsel for the petitioner submits that,

the compensation awarded by the Tribunal is on the lower

side. In order to prove the disability sustained by the

petitioner examined P.W.3, the doctor, who has deposed

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that the petitioner has sustained 25% to 30% disability.

The learned counsel contend that the Tribunal has taken

only 8% disability, which is on the lower side. He also

submits that the compensation awarded under the

different heads are on the lower side. On these grounds,

prays to allow the appeal by enhancing the compensation.

11. Per contra, the learned counsel for the

respondent No.2/Insurance Company supports the

judgment and award passed by the Tribunal, contending

that the compensation awarded by the tribunal is just and

proper and same does not call for any interference. Hence,

prays to dismiss the appeal.

12. We have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arise for consideration is quantum.

13. In order to prove the case, the petitioner got

examined himself as P.W.2 and to establish that the

accident was occurred due to rash and negligent driving of

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the driver of the offending Car, produced certified copy of

the FIR which is marked at Ex.P.1 and also produced

certified copy of the charge-sheet, which is marked as

Ex.P6, which discloses that the accident occurred due to

rash and negligent driving of the Car by its driver.

Insofar as Quantum of Compensation:

14. The petitioner contended that the petitioner is

doing private work and earning Rs.12,750/- per month. In

order to substantiate his claim, the petitioner has not

produced any records. Therefore, in the absence of such

record, this Court assessed the monthly notional income of

the petitioner as Rs.6,500/-, as per the Chart prepared by

the Karnataka Legal Services Authority since the accident

is of the year 2012. The petitioner is aged about 22 years.

The multiplier applicable to the age group of the petitioner

is '18'.

Insofar Assessment of Disability:

15. The petitioner in support of his claim to

establish the disability examined the doctor as P.W.3, who

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has deposed that the petitioner has sustained grievous

injuries and has issued disability certificate which is

marked as Ex.P.22. Perusal of which discloses that, P.W.3

has opined that the petitioner has sustained disability to

the extent of 25% to 30%. However, the Tribunal has

taken disability of petitioner at 8%, which is on the lower

side. This Court, considering the rival submissions and

having gone through the records is of the opinion that

disability of the petitioner has to be taken at 12% instead

of 8% as assessed by the Tribunal.

16. Thus, we have re-assessed the compensation

under the following different heads:

Compensation awarded in Rs. Particulars By the By this Court Tribunal

Pain and suffering Rs.10,000/- Rs.25,000/-

Medical expenses incurred and future medical Rs.65,700/- Rs.65,700/-

    expenses
    Attendant,      conveyance,
    nourishing food, and other          Rs.10,000/-     Rs.30,000/-
    incidental expenses.
    Loss of income during laid           Rs.4,000/-     Rs.19,500/-
    up period

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    Loss of future income on
    account of permanent              Rs.69,120/-         Rs.1,68,480/-
    disability
    Loss of amenities, life
    comforts and expectancy           Rs.10,000/-          Rs.30,000/-
    of life
    Total                        Rs.1,58,820/-        Rs.3,38,680/-

    Enhanced by this Court                Rs.1,79,860/-




     17.   The    petitioner     is     entitled      for      a   total

compensation of Rs.3,38,680/- as against Rs.1,58,820/-

awarded by the tribunal. Hence, the petitioner is entitled

for an enhanced compensation of Rs.1,79,860/- with

interest @ 6% p.a.