Karnataka High Court
Deepak vs Aseef on 15 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 201550 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO. 201550 OF 2021 (MV-I)
BETWEEN:
DEEPAK
S/O VILAS GAIKWAD
AGE:23 YEARS
OCC:AGRICULTURE AND STUDENT
R/O EARLIER AT RALERAS, SOLAPUR
NOW RESIDING AT SOLAPUR ROAD
VIJAYAPURA-586 101
...APPELLANT
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
Digitally signed by 1. ASEEF
SHAKAMBARI S/O MUSTAFA QURESHI
Location: HIGH
COURT OF AGE:44 YARS
KARNATAKA OCC:BUSINESS
R/O GUNAWADI ROAD
BARAMATI, TQ:BARAMATI
DIST:PUNE-413 102
(MAHARASHTRA STATE)
2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD
GURUKUL ROAD
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MFA No. 201550 of 2021
HANAMASHETTI BUILDING
VIJAYAPURA-586 101
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
VIDE ORDER DATED 10.2.2021 NOTICE
TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173 (1) OF MV ACT PRAYING TO
CALL FOR THE RECORDS AND TO MODIFY THE JUDGMENT AND
AWARD DATED 31.07.2021 PASSED IN MVC NO.450/2016 ON
THE FILE OF THE COURT OF THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT
CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT VIJAYAPURA, AND
ALLOW THIS APPEAL TO GRANT THE COMPENSATION AMOUNT
BY RS.22,15,000/- ONLY AS CLAIMED BY THE APPELLANT
BEFORE THIS HONOURABLE COURT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 201550 of 2021
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
Being dissatisfied with the judgment and award
dated 31.07.2021 passed in MVC No.450/2016 by the IV
Addl. District and Sessions Judge and Member, MACT-XIII,
Vijayapura, the claimant has preferred this appeal seeking
enhancement of compensation.
2. Parties to this appeal are referred with
reference to their rank before the Tribunal for the purpose
of convenience.
3. The facts so stated by the claimant-petitioner in
his petition are that, on 13.05.2015 he was riding a motor
bike bearing Reg.No.MH-13/AV-2433 at 6.15 a.m., from
Solapur Railway Station towards Solapur City. When he
was near Bale Cross Road, leading towards Raleras of
Solapur City on Solapur to Pune Road, at that time, one
Eicher Tempo bearing Reg. No.MH-42/B-9551 came from
the opposite direction driven by its driver in a rash and
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negligent manner and dashed to his motor bike. Because
of this accident, he sustained bodily injuries on his person.
With regard to the said accident, a crime in Crime
No.138/2015 was registered before the Solapura Fauzdar
Chawadi Police Station.
4. In the said accident he had suffered fracture of
his left tibia and fibula so also grievous injuries on his
head and other parts of the body. Initially he was shifted
to Dr. V.M. Medical College and General Hospital, Solapur
and thereafter, he was taken to Dr.Valasankar's
S.P.Institute of Neuro Science Hospital, Solapur.
According to him, he had spent more than Rs.5,00,000/-
towards medical expenses. When the said accident took
place, he was aged 19 years and he was earning
Rs.9,000/- per month. He has suffered mental agony
because of these injuries and he is unable to work as he
has lost his working capacity. Both the respondents are
liable to pay the compensation. It is prayed by the
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claimant to award the compensation of Rs.24,50,000/-
under all relevant heads.
5. Despite service of notice respondent No.1
remained absent before the Tribunal, therefore, placed ex-
parte. Respondent No.2-Insurance Company appeared
and opposed the petition by filing detailed written
statement denying all the allegations made in the petition
with regard to the accident, injuries sustained on the
person of the claimant, medical expenses alleged to have
been spent by him so also his income and earning
capacity. It is contended that the said accident has taken
place because of rash and negligent driving of the claimant
who was driving his motor bike without possessing any
effective Driving Licence. It is contended that the liability
of the Insurance Company is subject to the terms and
conditions of the policy. It is prayed to dismiss the
petition.
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6. Based upon the rival pleadings of both the
parties, the learned Tribunal framed in all 5 issues as
under:-
"ISSUES
1. Whether petitioner proves that, on 13.5.2015 at
about 6:15 a.m., when he was riding Motorcycle
bearing Reg. No. MH-13/AV-2433, near Bale Cross
road, leading towards Raleras at Solapur City
(Maharashtra State), at that time, the driver of
Eicher Tempo bearing Reg. No.MH-42/B-9551,
came in a rash and negligent manner and dashed
to the Motorcycle, due to which, he sustained
injuries shown in Injury certificate/claim petition?
2. Whether petitioner proves that, this Court has
got territorial jurisdiction to entertain the petition?
3. Whether the respondent No.2 Insurance
Company proves that, driver of Eicher Tempo
bearing Reg. No.MH-42/B-9551 was not holding
valid and effective DL on the date and time of
accident?
4. Whether petitioner is entitled for compensation
as claimed? If so, to what extent?
5. What order or award?"
7. To prove the case of the claimant, he himself
entered the witness box as PW.1 and also examined two
witnesses i.e., Dr.Sadashivappa Bedar and Dr. Shantappa.
Got marked Exs.P1 to P.17 and closed claimant's evidence.
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8. On behalf of respondent No.2-Insurance
Company no oral evidence is adduced whereas with
consent Ex.R1 and R2 were marked.
9. The learned Tribunal on hearing the arguments
and on assessment of the evidence held that, the said
accident has taken place because of rash and negligent
driving of the offending vehicle bearing Reg. No.MH-42/B-
9551 and held that, there is no violation of the policy
conditions by the respondent No.1 and ultimately,
awarded the compensation of Rs.2,35,000/- under all the
relevant heads together with interest @ 6% p.a. from the
date of petition till realisation with a direction to
respondent No.2-Insurance Company to deposit the same.
The following tabulation shows the amount of award
passed by the Tribunal:-
Sl. Head of award Amount
No. award in
Rs.
1. Towards Pain and sufferings 30,000/-
2. Towards Medical expenses 1,75,000/-
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3. Towards Transportation, 20,000/-
Nourishment and medical
attendant charges
4. Towards amenities 10,000/-
Total compensation 2,35,000/-
10. This is how, now the claimant is seeking
enhancement of compensation by filing this appeal.
11. The learned counsel Sri Bapugouda Siddappa
for the claimant/appellant with all vehemence submits
that, the learned Tribunal has not considered the nature of
the injuries and disability suffered by the claimant. As per
the evidence of Doctors the claimant has suffered
substantial disability but without taking into consideration
the same, the Tribunal has awarded meagre compensation
under all the relevant heads, which is required to be
enhanced. He submits that, when this appeal was
pending, on 31.10.2023 this Court has passed an order
directing the claimant to approach the Medical Board to
ascertain the actual disability suffered by the claimant and
get a report to that effect. Accordingly, the Medical Board
was directed to examine the claimant on 09.11.2023 at
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10.00 a.m. He submits that, as directed, the claimant
appeared before the Medical Board at Gulbarga Institute of
Medical Sciences (GIMS) at Kalaburagi. He submits that,
on medical examination of the claimant, the Medical Board
has issued the Disability Certificate pointing out
Orthopaedic disability as well as Neurological disability.
The same shall have to be considered by this Court. He
prays to allow the appeal and enhance the compensation
amount.
12. As against this submission, the learned
Standing Counsel Smt.Preeti Patil Melkundi for the
Insurance Company-respondent No.2 submits that,
whatever the compensation awarded by the Tribunal is
just and proper. She concedes that, no separate appeal is
preferred by the Insurance Company challenging the
liability and quantum of compensation. However, she
submits that the said accident has taken place because of
the rash and negligent driving of the motorbike by the
claimant without possessing any effective Driving Licence,
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therefore, the Insurance Company be exonerated from
depositing the compensation amount. Taking into
consideration the factual aspects, she submits to dismiss
the appeal.
13. We have given our anxious consideration to the
arguments of both the sides. Perused the records.
14. In view of the rival submissions, the only point
that would arise for our consideration is:
"Whether claimant has made out grounds to
enhance the compensation as prayed?"
15. So far as accident is concerned, which occurred
on 13.05.2015 at 6.15 a.m. near Bale Cross Road on
Solapur-Pune Road leading towards Solapur City, in
between motorbike of the claimant bearing Reg. No.MH-
13/AV-2433 and Eicher Tempo bearing Reg.No.MH-42/B-
9551, is not in dispute. To that effect, claimant relies
upon Exs.P.1 to P4 i.e., FIR, Complaint, Spot panchanama,
charge-sheet with respective translation in Kannada.
PW.1 being the claimant has come before the Tribunal and
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has spoken about the rash and negligent driving of the
offending Eicher Tempo by its driver. The above
documents show that a crime was registered in Cr.
No.138/2015 of Solapur Fouzdar Chawadi Police Station
against the claimant for the offences u/s 279, 338 of IPC
and Sec.184, 134(B) of MV Act. Evidence of PW.1 is not
rebutted by the respondent No.2. Except denial in the
cross-examination nothing is elicited. Respondent No.1 is
placed ex-parte. Thereby, he has not denied the said
accident being the owner of the offending vehicle.
Therefore, as rightly held by the Tribunal the said accident
has taken place because of the rash and negligent driving
of the offending tempo Eicher by its driver. We do not find
any factual or legal error in such findings of the Tribunal.
Therefore, the finding with regard to the rash and
negligent driving of the offending vehicle need not be
interfered by this Court.
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16. It is a case of the claimant that, immediately
after the accident, he was shifted to the Dr.V.M.Hospital
and there after, he was shifted to Dr.Valasankar's
S.P.Institute of Neuroscience Hospital, Solapur. For
having admitted to the said hospital claimant relied upon
Ex.P.5 - MLC intimation sent by the hospital to the police.
As per the medical records, he was treated as an inpatient
in the hospital from 13.05.2015 to 04.06.2015 i.e., till his
discharge and he was diagnosed with following injuries:-
"Cranial Trauma - Left perital contusion with depressed
fracture - surgery done
Left Tibia and Fibula fracture - reduction done"
17. He was advised as 'strict non weight bearing on
left lower limb and permitted to walk with the help of
walker without bearing weight on left lower limb'.
Discharge summary is produced to that effect as per
Ex.P.6. This Ex.P.6 contains the nature of the treatment
administered by the hospital to him. Ex.P.7 is the
document produced by the claimant prepared by the
casualty. He also has produced the Ex.P.9-the Discharge
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Card. Similar injuries are noticed in the said document.
Ex.P.10 is the Case Sheet (wound certificate) issued by Dr.
Karvekar Fertility and Orthopaedic Hospital noticing the
injuries (Fractures) i.e., compound fracture of tibia and
fibula(L) and it is issued on 31.08.2015. It is subsequent
to the discharge. He also has produced medical bills at
Ex.P.11 showing that, in all, he has spent
Rs.8,41,905.83/-. But the actual bill if counted, it comes
to Rs.2,41,530/-. There is a wrong calculation made by
the claimant with regard to medical bills. By wrong
calculation the claimant has claimed more compensation
towards medical bills which is not permissible under law.
He is entitled for actual bill amount i.e., Rs.2,41,530/- in
addition to medical expenses, he also must have spent
money towards food, nourishment, conveyance, attendant
charges, etc., Therefore, globally some compensation
towards the same is to be awarded. Looking to the factual
aspect under the said head if Rs.2,60,000/- is awarded, it
would meet the ends of justice. Accordingly awarded.
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18. As per the evidence of the Doctors the claimant
has suffered physical disability as well as neurological
disability. PW.2 Dr.Sadashivappa Bedar has come before
the Tribunal and deposed of medically examining the
claimant on 04.09.2018 for the purpose of assessing
disability. He opined that, there is a disability to the
extent of 50% neurological and 25% speech disability. He
was cross- examined by the counsel for the Insurance
Company. This PW.2 relies upon Ex.P.15-Disability
Certificate issued by him. As he is not a treated doctor
much value cannot be attached to the evidence of this
PW.2.
19. PW.3 Dr.Shantappa examined this claimant on
04.09.2018 to assess the disability on medically examining
him, he assessed the disability to the extent 25%-30% to
the left lower limb. He too was cross-examined at length.
Certain X-rays are produced with case sheet. These
documents show about the treatment taken by the
claimant both as inpatient as well as out patient.
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20. As narrated above, as per the directions of this
Court, the Medical Board medically examined the claimant
and submitted a report along with Disability Certificate.
The Medical Board opines as under:-
"With reference to the above, the Medical
Board Members of this hospital have examined of
Sri.Deepak S/o Vilas Gaikwad aged 29 years under
Out- Patient UHID No. 20230287975 on dated 09 &
10/11/2023 for Physical disability, by the
Orthopaedic Surgeon & Neurosurgeon and have
opinion given below.
S/o Vilas Gaikwad, aged 29 years under Out-Patient
UHID No.20230287975 on dated 09 & 10/11/2023
for Physical disability, by the Orthopaedic Surgeon
& Neurosurgeon and have opinion given below.
ORTHOPAEDIC SURGEON OPINION:-
8 years case of fracture both bone left leg with
union. Assessment for disability evaluation he is
having 8% (eight percent) orthopaedic disability.
NEUROSURGEON OPINION:-
8 years Old Post craniotomy status for left parietal
depressed fracture with parietal haematoma.
Assessment for disability evaluation Upper Limb &
Lower Limb. He is having the Neurological disability
of 61% (Sixty one percent)."
21. As per the opinion of the Medical Board, the
claimant had sustained 8% orthopaedic disability and 61%
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neurological disability with regard to the upper limb and
lower limb evaluation. The factum of sustaining such
orthopaedic disability and neurological disability is not
denied by the Insurance Company by filing any objections
to this Disability Certificate.
22. It is a specific allegation of the claimant that,
whatever the compensation so awarded by the Tribunal is
very much meagre. As held in the catena of judgments of
Hon'ble Apex Court and this Court "While assessing the
disability/compensation, it must not be lost sight of the
loss of the bodily integrity gives a right to damages even if
there is no damage at all to the earning capacity or even
to the enjoyment of law. But damages in such cases are
awarded commensurate with the extent, gravity and
duration of the injury. The test in the case of the bodily
injury are to be as to whether the breaking of the physical
integrity is of a temporary nature or permanent nature,
what impact, that is what extent the physical incapability,
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temporary or permanent disability will be reflected in the
earning capacity of the injured".
23. In this case after assessing the evidence placed
on record, we are of the opinion that, the award of the
Claims Tribunal deserves to be modified so that, the
claimant receives proper and just compensation for the
injuries suffered by him. It is well settled that
compensation for personal injury cases is higher as
compared to fatal cases, since in the former case, it is to
be utilised by the victim of the accident or in the later by
the legal heirs. It is true that, compensation cannot bring
back the victim to the stage he enjoyed before the
accident, but it would provide him some solace and
security for future. Therefore, in view of the facts and
circumstances of this case, it can be stated that the
claimant is entitled for compensation towards pain,
suffering, trauma and injuries as he was aged 22 years at
the time of the accident, must have suffered lot. He
cannot enjoy the life as he was enjoying prior to the
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accident. He has spent substantial money towards
medical expenses but as not calculated by him. In
addition to medical expenses, he must have spent money
towards conveyance, nutrition, attendant charges and
other incidental expenses. Because of these compound
fractures of left tibia and fibula and also to the upper limb
neurological disorder, he must have been idle for at least
for a period of four months. This possibility cannot be
ruled out. There is loss of income during treatment
period. After 8 years of accident, he was examined by the
Medical Board, Kalaburagi and they noticed 8%
Orthopaedic disability and 61% Neurological disability.
Looking to the treatment taken by the claimant as well as
of his age, if the disability is calculated to the whole body
at 30% it would meet the ends of justice. Therefore, it is
held that, the claimant has suffered 30% of permanent
disability because of these accidental injuries. It is
brought on record that, he has a problem of speaking also,
therefore, Medical Board has assessed neurological
disability to the upper limb and lower limb at 61%. Thus,
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the claimant is held entitled for compensation under the
conventional heads. As the accident had taken place in
the year 2015 no document is produced to show that,
claimant was earning more than Rs.9,000/- per month.
However, in view of the Circular issued by Karnataka State
Legal Services Authority, for the year 2015, the notional
income is reckoned at Rs.8,500/-. So the loss of
income during laid up period would be Rs.34,000/-
(Rs.8,500 X 4).
24. It is held that, claimant has suffered 30%
permanent disability. Thus, the total permanent disability
has to be calculated by applying the multiplier '18' as per
the judgment in Sarla Verma's case as he was aged 22
years at the time of the accident, 30% of Rs.8,500/- =
Rs.2,550/-, it is to be multiplied with '12'. So also, as
proper multiplier is '18', the compensation towards loss of
future income would be Rs.5,50,800/- (Rs.2550 x 12
x 18).
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25. As per above discussion the tribunal for Pain,
suffering, trauma and injuries has awarded Rs.30,000/- as
compensation. But by looking into the bodily injuries and
pain, the claimant has suffered huge loss, so for Pain,
suffering, trauma and injuries the enhanced
compensation would be Rs.60,000/-.
26. Claimant cannot lead the normal life as he was
leading prior to the accident. He has suffered fractures,
neurological disorders. There is loss of amenities to be
enjoyed in the life. Though the Tribunal has awarded
Rs.10,000/- towards loss of amenities, it is on lower side.
Hence, looking to the evidence placed on record, injuries
and disabilities for loss of amenities, claimant is entitled
for Rs.50,000/- instead of Rs.10,000/-.
27. Accordingly, the claimant is held entitled for
compensation as under:-
Sl.No. Heads Amount in Rs.
1. Pain, suffering, trauma and 60,000-00
injuries
2. Loss of amenities to be 50,000-00
endangered in life
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3. Medical expenses, including 2,60,000-00
conveyance, nutrition, attendant
charges and other incidental
expenses
4. Loss of income during laid up 34,000-00
period (Rs.8,500/- x 4)
5. Loss of future income due to 5,50,800-00
disability
(Rs.2,550/- x 12 x 18)
TOTAL 9,54,800-00
Thus, the claimant is held entitled for total
compensation of Rs.9,54,800/- together with interest at
the rate of 6% p.a. from the date of petition till its
realisation as awarded by the Tribunal.
28. So far as liability is concerned, no document is
produced to show that there is violation of policy
conditions by the respondent No.1.
29. Except producing Exs.R1 and R2 no oral
evidence is lead by the Insurance Company. Validity of
the insurance policy as on the date of the accident is
admitted. Therefore, the respondent Nos.1 and 2 are
jointly and severely held liable to pay the compensation.
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However, under law of indemnity respondent No.2 to
deposit the compensation as rightly held by the Tribunal.
30. Accordingly, the point for consideration is
answered partly in favour of the claimant. Resultantly, we
pass the following:-
ORDER
(i) Appeal is allowed in part.
(ii) Claimant is held entitled for enhanced
compensation of Rs.9,54,800/- as
against Rs.2,35,000/- awarded by the
Tribunal together with interest at the rate
of 6% p.a. from the date of petition till its
realisation, thereby the enhanced
compensation would be Rs.7,19,800/-.
(iii) The Insurance Company i.e., respondent
No.2 shall deposit the compensation
amount so awarded within four weeks
from the date of receipt of the certified
copy of the judgment and award.
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(iv) The apportionment ordered by the
Tribunal with regard to the deposit
remains undisturbed.
(v) There shall be modified award in the
above terms.
(vi) Send back the trial Court records along
with the copy of the judgment forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
PSJ
