Karnataka High Court

Sri.Ratnadeep S/O Prabhakar Goltaekar vs Shri.Somasundar S/O Raju on 19 November, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

                                                   -1-
                                                          NC: 2024:KHC-D:16806-DB
                                                          MFA No. 100364 of 2016




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 19TH DAY OF NOVEMBER, 2024

                                                PRESENT
                             THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                  AND
                               THE HON'BLE MR. JUSTICE VENKATESH NAIK T

                       MISCELLANEOUS FIRST APPEAL NO. 100364 OF 2016 (MV-I)

                      BETWEEN:

                      SRI. RATNADEEP S/O. PRABHAKAR GOLTEKAR,
                      AGE: 32 YEARS, OCC: GOVERNMENT SERVANT,
                      R/O. RODVIGUES WADA,
                      SODIEM, SOILEM, BARDES GOA.
                                                                       ...APPELLANT
                      (BY SRI. PRASAD A. PEDNEKAR, ADVOCATE)

                      AND:

                      1.   SHRI. SOMASUNDAR S/O. RAJU,
                           R/O. HEEMAVATI HOSPITAL ROAD, HASSAN.

                      2.   MRS. PREMA N. W/O. NAGARAJ,
                           R/O. CHANDAN NILAY, 3RD CROSS,
Digitally signed by
                           ADARSH, NAGARCHANDANA NILAYA, HASSAN.
MANJANNA E
Location: HIGH
COURT OF
                      3.   UNITED INDIA INSURANCE CO. LTD.,
KARNATAKA
DHARWAD
                           DIVISION OFFICE, KAIKINIJ ROAD, KARWAR.
BENCH
Date: 2024.11.25                                                     ...RESPONDENTS
10:53:36 +0530
                      (BY SRI. G. N. RAICHUR, ADV. FOR R3;
                           NOTICE TO R1 & R2 DISPENSED WITH)

                            THIS MFA IS FILED U/S 173(1) OF MOTOR VEHICLES ACT,
                      PRAYING TO ENHANCE THE COMPENSATION BY SET ASIDE THE
                      JUDGMENT AND AWARD TO THE EXTENT OF QUANTUM OF
                      COMPENSATION AWARDED TO THE CLAIMANT/APPELLANT ON THE
                      FOLLOWING AMONG OTHER GROUNDS TO BE URGED AT THE TIME
                      OF HEARING THE JUDGMENT AND AWARD PASSED BY THE SENIOR
                      CIVIL JUDGE AND IST ADDL. MACT KARWAR DT. 11/11/2015 IN
                      M.V.C NO.46/2012 AND AWARD THE COMPENSATION AS PRAYED
                      FOR IN THE CLAIM PETITION, BY ALLOWING THIS APPEAL, IN THE
                      INTEREST OF JUSTICE AND EQUITY.
                              -2-
                                    NC: 2024:KHC-D:16806-DB
                                    MFA No. 100364 of 2016




     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
           AND
           THE HON'BLE MR. JUSTICE VENKATESH NAIK T


                        ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

The appellant has filed this appeal challenging the

judgment and award dated 11.11.2015 passed by the

learned I Additional MACT, Karwar (for short 'Tribunal') in

MVC No.46/2012 whereby, the Tribunal has granted

compensation of Rs.7,45,000/- with interest at the rate of

6% per annum from the date of petition till the realization

of the entire amount.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Tribunal.

3. Brief facts of the case are as under;

On 07.05.2011 the claimant was proceeding from

Karwar-Arga on his motorcycle bearing registration No.GA-

03/F-0472 at about 2.15 p.m. At that time, the driver of

NC: 2024:KHC-D:16806-DB

truck bearing registration No.KA-13/A-4347 came in a

rash and negligent manner and dashed against the

motorcycle of the claimant. Hence, the claimant fell down

and sustained severe injuries and his right leg crushed and

thus, the same is amputed above right knee.

4. The claim petition was filed before the Tribunal

by the claimant seeking compensation on account of

injuries sustained by him.

5. The claimant in order to prove his case

examined himself as PW1 and relied upon seven

documents marked as Ex.P1 to P7. The Tribunal on

appreciation of oral and documentary evidence, allowed

the claim petition in part and granted compensation of

Rs.7,45,000/- with interest at the rate of 6% per annum.

Being aggrieved by the same, the claimant is before this

Court.

6. Learned counsel for the appellant/claimant has

firstly contended that while granting compensation, the

Tribunal has not granted any compensation under the

NC: 2024:KHC-D:16806-DB

heads of medical expenses, conveyance, loss of income

during laid up period and loss of future income.

a) Secondly, he has contended that the doctor has

issued permanent physical disability certificate at 80% in

favour of claimant, but the Tribunal has considered it at

50%, which is on lower side.

b) Thirdly, he has contended that at the time of

accident the claimant was aged about 32 years and was an

experienced sailor working in Indian Navy Ship and was

drawing salary of Rs.22,500/- per month which was

subsequently enhanced to Rs.31,206/- per month. Due to

the accidental injuries, the claimant was forced to take

retirement in the month of August-2016 on account of

amputation of his right leg.

c) Hence, on all these grounds learned counsel for

the appellant prays to allow the appeal.

7. Learned counsel for the respondent-Insurance

Company vehemently contended that the claimant though

NC: 2024:KHC-D:16806-DB

produced disability certificate at Ex.P6, the claimant has

not examine the author of the document. Further, at the

time of accident the claimant was salaried person working

in Indian Navy and hence, there is no question of loss of

income during laid up period to the claimant. The Tribunal

considered the oral and documentary evidence on record

and granted fair and reasonable compensation to the

claimant. Hence, he prayed to dismiss the appeal.

8. Having heard the learned counsel for the parties

and on perusal of the appeal papers, the points that would

arises for our consideration in this appeal are:

"i) Whether the Tribunal has granted just and reasonable compensation to the claimant?

ii) Whether in circumstances of the case the matter requires remand?"

9. From perusal of the entire material available on

record it appears that on 07.05.2011 the claimant was

proceeding in his motorcycle, at that time the driver of

truck came in a rash and negligent manner and dashed to

NC: 2024:KHC-D:16806-DB

his motorcycle and hence, the claimant sustained severe

injuries and his right leg above knee was amputated. In

this regard, the claimant himself examined as PW1 and

relied upon FIR, complaint, charge sheet as per Ex.P1 to

P3. On perusal of oral and documentary evidence, it

appears that, the driver of offending vehicle caused the

accident. Further, the claimant produced Ex.P4-wound

certificate and Ex.P6-disability certificate, these documents

clearly establishes that the claimant sustained grievous

injuries to his right leg. Whereas, the claimant has not

examine the doctor who issued Ex.P6-disability certificate.

Further, the Tribunal has not considered medical bills,

though furnished by the claimant. The Tribunal has not

granted any compensation under the heads conveyance,

food and nourishment, loss of income during laid up

period, loss of future income and disability etc.

10. The Co-Ordinate Bench of this Court in the case

of Shri. Iqbalahamed Vs. Vice-Chairman, M/s. Patel

NC: 2024:KHC-D:16806-DB

Integrated Logistics Ltd. and Another1, at paragraph

No.8 has held as under;

"8. This case is a classic example of the lackadaisical performance of many Tribunals dealing with motor accident claims while discharging their judicial duty. Repeatedly it has come to the notice of this Court that in large number of claim petitions, the claimants are unable to produce either the treating Doctor, or the Doctor who has issued the Disability Certificate, as a witness. The claimants may be prevented from producing such witness either because of their poverty, ignorance, illiteracy, or because such witness, being doctors, are invariably too busy to appear before the Tribunals. But in these circumstances, which are beyond the control of the claimant, invariably, it is the claimant who suffers for no fault of his or her. Considering the fact that the treating Doctor, and the Doctor who has issued the Disability Certificate are material witnesses in a claim petition, it is essential that their presence be ensured by the Presiding Officers of the Tribunal by invoking the power under Section 165 of the Evidence Act."

ILR 2017 KAR 3045 (DHARWAD BENCH)

NC: 2024:KHC-D:16806-DB

11. From the perusal of the ratio laid down in the

case of Shri. Iqbalahamed (supra), it clearly establishes

that the claimant has not examined the doctor who issued

disability certificate. Under such circumstances it was the

duty of the Tribunal to summon the concerned doctor for

his examination.

12. Considering the fact that treating doctor, and

the doctor who has issued the disability certificate are

material witnesses in a claim petition, it is essential that

their presence be ensured by Presiding Officers of the

Tribunal by invoking the power under Section 165 of the

Evidence Act.

13. In view of the facts and circumstances of the

case and the ratio laid down in the case of Shri.

Iqbalahamed (supra), it is just and necessary to remand

the matter to the Tribunal for fresh consideration.

NC: 2024:KHC-D:16806-DB

14. Accordingly, we pass the following:

ORDER

(i) The appeal is allowed in part.

(ii) The matter is remanded back to

the Tribunal for fresh consideration.

(iii) Liberty is given to both the parties

to adduce their evidence and examine the

treated doctor. If, the treated doctor is not

available, examine any other doctor.