Karnataka High Court
Sri. Chandrashekar vs Sri. V.K. Prakashan on 25 March, 2025
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2025:KHC:12605
MFA No. 1284 of 2023
C/W MFA No. 4683 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.1284 OF 2023 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4683 OF 2023 (MV-D)
IN MFA.No.1284/2023:
BETWEEN:
SRI CHANDRASHEKAR
S/O.SHIVARAMA BERRI
AGED ABOUT 54 YEARS
R/AT 'BHARATH NILAYA'
KODI ROAD, HANGALUR VILLAGE
KUNDAPURA TALUK
...APPELLANT
(BY SRI NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI V.K.PRAKASHAN
S/O.GOVINDAN
MAJOR
R/AT KARAYI HOUSE
KUVEMBHAGAM POST
Digitally signed
by THALASSERY
GAVRIBIDANUR KANNUR DISTRICT
SUBRAMANYA
GUPTA KERALA
SREENATH
Location: HIGH
COURT OF 2. THE CHOLAMANDALAM
KARNATAKA
GENERAL INSURANCE CO.LTD.
DIVISIONAL OFFICE, UDUPI
REP. BY ITS DIVISIONAL MANAGER
...RESPONDENTS
(BY SRI H.C.BETSUR, ADVOCATE FOR R-2;
R-1 IS SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
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MFA No. 1284 of 2023
C/W MFA No. 4683 of 2023
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
06.08.2022 PASSED IN MVC.NO.600/2018 BY THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA.
IN MFA.NO.4683/2023:
BETWEEN:
1. RUKMINIYAMMA
AGED ABOUT 74 YEARS
W/O.LATE SUBBAPPA NADAR
2. JYOTHI
AGED ABOUT 30 YEARS
W/O.LATE GANESH @ SHANMUKHA NADAR
3. THARUN S.
AGED ABOUT 13 YEARS
S/O. LATE GANESH @ SHANMUKHA NADAR
4. THANMAY K.S.
AGED ABOUT 09 YEARS
D/O.LATE GANESH @ SHANMUKHA NADAR
SINCE APPELLANT NOS.3 & 4
ARE MINOR CHILDREN, THEY
ARE REPRESENTED BY THEIR
NEXT FRIEND AND GUARDIAN
MOTHER-APPELLANT NO.2
BY NAME JYOTHI
ALL ARE RESIDING AT
KODAKANI VILLAGE AND POST
SORABA, SORABA TALUK
SHIVAMOGGA DISTRICT
ALSO RESIDING AT
HEMMADI VILLAGE AND POST
KUNDAPURA TALUK
UDUPI DISTRICT
... APPELLANTS
(BY SRI K.PRASANNA SHETTY, ADVOCATE)
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MFA No. 1284 of 2023
C/W MFA No. 4683 of 2023
AND:
1. V.K.PRAKASHAN (MAJOR)
S/O.GOVINDAN
R/AT KARAYI HOUSE
KAVUMBHAGAM POST
THALASSERY
KANNUR DISTRICT
KERALA-670 612
ALSO RESIDING AT:
KARAYI HOUSE
KAVUMBHAGAM
UMMENCHIRA SOCIETY KANNUR
UMMENCHIRA S.O.
KANNUR
KERALA-670 649
2. THE CHOLAMANDALAM MS
GENERAL INSURANCE CO.LTD.
REP. BY ITS MANAGER
REGD. & HEAD OFFICE AT:
DARE HOUSE, 2ND FLOOR
NO.2, NSC BOSE ROAD
CHENNAI, TAMILNADU-600 001
...RESPONDENTS
(BY SRI H.C.BETSUR, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED V/O.DATED 25.03.2025)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
06.08.2022 PASSED IN MVC.NO.425/2018 BY THE SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA.
THESE APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 1284 of 2023
C/W MFA No. 4683 of 2023
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
Since both the appeals are arising out of the same
accident, they are taken up together for consideration.
2. These two appeals are preferred by the claimants
questioning the common judgment and award dated
06.08.2022 passed in MVC.Nos.600/2018 and 425/2018
respectively by the Court of the Senior Civil Judge and
Additional MACT, Kundapura (for short, 'the tribunal').
These appeals are founded on the premise of inadequacy
of compensation awarded by the tribunal.
3. Parties to the appeals shall be referred to as per
their status before the tribunal.
4. Brief facts of the case are as under:
On 15.12.2017 at about 1.50 a.m., one
Chandrashekar was driving the auto rickshaw bearing
registration No.KA-20-B-9399 and one Ganesh @
Shanmukha Nadar was also travelling as a passenger
therein from Kundapura side towards Byndoor side. When
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the said auto rickshaw reached near NH-66, Hemmadi
junction, Hemmadi Village, a lorry bearing registration
No.KL-58-A-7051 driven by its driver came in a rash and
negligent manner and dashed against the auto rickshaw.
Due to which, the auto rickshaw toppled on the road and
the driver as well as the passenger sustained grievous
injuries. Due to the said impact, the said Chandrashekar,
the driver of the auto rickshaw was immediately taken to
Taluk Government Hospital, Kundapura and he expended
financial expenditure towards his treatment, whereas, the
said Ganesh @ Shanumukha Nadar sustained head injury
and was immediately taken to Taluk Government Hospital,
wherein, he succumbed to the injuries.
4.1 Due to the injuries sustained in the accident, the
said Chandrashekar, the injured claimant has filed a claim
petition in MVC.No.600/2018 seeking compensation,
whereas, the dependants of inmate passenger namely,
deceased Ganesh @ Shanmukha Nadar filed a claim
petition in MVC.No.425/2018 seeking compensation for the
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unfortunate death of the passenger against the
respondents, who are the owner and Insurance Company
of the offending vehicle, Lorry.
4.2 On service of notice, respondent No.1, the owner
of the offending vehicle remained absent and was placed
ex parte. Respondent No.2-Insurance Company filed
written statement denying the claim of the claimants and
sought for dismissal of the claim petitions.
4.3 On the basis of material evidence, both oral and
documentary and on hearing the submissions of learned
counsels for both parties, the tribunal awarded
compensation of Rs.12,92,696/- with interest @ 6% p.a.
in MVC.No.600/2018 and Rs.22,88,000/- with interest @
6% p.a. in MVC.No.425/2018 and fixed the liability jointly
against respondent Nos.1 and 2, however, directed
respondent-Insurance Company to pay the compensation
within thirty days.
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4.4 Being aggrieved by the meager compensation
awarded by the tribunal, the injured claimant in
MVC.No.600/2018 filed an appeal in MFA.No.1284/2023
and the claimants in MVC.No.425/2018 have filed an
appeal in MFA.No.4683/2023 before this Court seeking
enhancement of compensation.
IN MFA.No.1284/2023 (MVC.No.600/2018):
5. Learned counsel for injured claimant, who is the
driver of the auto rickshaw contends that admittedly, the
injured claimant was driving the auto rickshaw as on the
date of occurrence of accident along with the passenger
and due to the rashness and negligence of the offending
Lorry, he met with an accident, due to which, he sustained
amputation of left hand middle and index fingers in distal
2/3rd, thereby crippling him from driving the auto
rickshaw, which is his profession. He further contends that
he examined the Doctor as PW.5, who was opined the
disability to an extent of 56% to the left upper limb. This
aspect of disability has not been appreciated by the
tribunal and the tribunal has reduced the disability to
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38%, which is erroneous and therefore, he seeks
enhancement of the disability aspect. He further contends
that admittedly, the driver of the auto rickshaw, has got
amputation of his middle and index fingers, however, he
will not be able to drive the auto rickshaw, which requires
grip on all the fingers on the left hand to operate the
gears. He contends that the injured claimant has stated in
his evidence that he was earning a sum of Rs.25,000/- per
month. He has also produced a copy of the Driving
Licence, but the tribunal has disbelieved the same and
awarded notional income of Rs.11,000/-, which is also
erroneous. He also contends that the driver of the auto
rickshaw cannot be equated with daily wager or coolie,
who does not have any regular income or avocation. On
these grounds, he seeks to allow his appeal for
enhancement of compensation.
6. Per contra, learned counsel for Insurance
Company sustains the impugned judgment and award
passed by the tribunal. He contends that the injured
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claimant, the driver of the auto rickshaw has not produced
any material to show that as to whether he was the driver
of the auto rickshaw or it belongs to him or he was driving
the same on a lease basis. He further contends that in
view of non-production of any cogent material with regard
to the income, the tribunal is justified in assessing the
notional income at Rs.11,000/- per month. However, there
is no arbitrariness or illegality in the judgment and award
passed by the tribunal, so also, he contends that under
other heads, the compensation awarded by the tribunal is
just and reasonable. On these grounds, he seeks to
dismiss the appeal filed by the injured claimant.
7. Having heard the learned counsel for injured
claimant and learned counsel for Insurance Company and
perused the impugned judgment and award, it is
apparently seen that though the injured claimant has
produced the Driving Licence before the tribunal, it was
not marked in the evidence. It may be an error committed
by the counsel on record for not having marked the
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Driving Licence, the fact remains that the claimant was the
driver of the auto rickshaw, who sustained injuries. The
Doctor-PW.5 opined the disability to an extent of 56% of
the left upper limb. Though he has not stated any
disability to the whole body, the tribunal assessed the
same at 38%. Since the Insurance Company is not in
appeal, the disability assessed at 38% by the tribunal does
not call for interference and the same is retained. The age
of the injured claimant was 50 years as on the date of
occurrence of accident. The appropriate multiplier applied
is '13', which is rightly applied by the tribunal and the
same is retained. In view of the disability assessed by the
tribunal at 38% to the whole body, the tribunal awarded
10% towards future prospects. However, as per the
judgment of the Hon'ble Apex Court in the case of
National Insurance Company Limited vs. Pranay
Sethi and others reported in (2017) 16 Supreme
Court Cases 680, the claimant being aged 50 years and
is between the age group of 40 and 50 years, 25%
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requires to be added to the income towards future
prospects as against 10% taken by the tribunal.
8. Now coming to the aspect of income of the injured
claimant, it is seen that the tribunal has taken the notional
income for want of material proof. However, the fact
remains that the claimant is an auto rickshaw driver, who
is a skilled employee and he cannot be equated with daily
wager/coolie. Therefore, the income is to be taken at
Rs.15,000/- per month. Hence, the injured claimant would
be entitled to the compensation of Rs.11,11,500/-
(Rs.15,000/- + 25% = Rs.18,750/- x 12 x 13 x 38%)
towards loss of future earning capacity due to permanent
disability as against Rs.7,17,288/- awarded by the
tribunal.
9. The tribunal awarded Rs.1,00,000/- towards pain
and suffering, Rs.3,14,404/- towards medical expenses,
Rs.45,000/- towards loss of amenities and Rs.50,000/-
towards conveyance, diet and attendant charges, which do
not call for interference and the same are retained.
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10. The tribunal awarded Rs.66,000/- towards loss of
income during laid up period. However, in view of this
Court enhancing the monthly income from Rs.11,000/- to
Rs.15,000/- and he would require atleast six months
period to recuperate and to get back to his normal day to
day activities. Therefore, the claimant would be entitled to
Rs.90,000/- (Rs.15,000/- x 6) under this head.
11. In view of the above, the claimant would be
entitled to a total compensation of Rs.17,10,904/- as
against Rs.12,92,696/- as mentioned in the table below:
Heads Amount in Rs.
Loss of future income due to 11,11,500-00
disability
Pain and suffering 1,00,000-00
Medical expenses 3,14,404-00
Loss of income during laid up 90,000-00
period
Loss of amenities 45,000-00
Conveyance, diet and attendant 50,000-00
charges
TOTAL 17,10,904-00
IN MFA.No.4683/2023 (MVC.No.425/2018):
12. Learned counsel for claimants, who are the
dependants of the deceased Ganesh @ Shanmukha Nadar
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contends that the deceased was hale and healthy and
working as a mason and earning Rs.30,000/- per month.
He contends that the deceased was employed under his
employer-PW.4, who is a Class-I Contractor. He has stated
in his evidence that the deceased was working as a mason
for the past 3 years and he was paid salary of Rs.15,000/-
per month. PW.2 has also produced Ex.P148, which is a
salary certificate to show that the deceased was working
as a mason under PW.4 and earning a salary of
Rs.15,000/- per month. Therefore, he contends that the
tribunal has ignored this document and committed an
error in taking into consideration the salary certificate at
Ex.P148 and the evidence of PW.4 and has merely taken
the notional income of the deceased at Rs.11,000/- per
month, which is erroneous and the same requires to be
enhanced. On these grounds, he seeks to allow his appeal
for enhancement of compensation. However, no dispute or
grievance is raised by learned counsel with regard to the
compensation awarded under other heads by the tribunal.
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13. Per contra, learned counsel for Insurance
Company vehemently contends that there is absolutely no
material placed by the claimants, apart from the salary
certificate as per Ex.P148 to show that the deceased was
employed as a mason under PW.4, who is a Class-I
Contractor. He further contends that no documents are
produced to show as to how the income was received by
the deceased as no Bank statement or Bank records are
produced. It is also contended that PW.4, who claims to
be the Class-I Contractor has not placed any material to
show that he had employed the deceased under his
employment as a mason. However, he has not produced
any register with regard to the wages of the employees
and also Insurance or Workmen employed as a mason
under Class-I Contractor. Therefore, it is hard to believe
that the deceased was employed under PW.4 merely on
production of the salary certificate at Ex.P148, which itself
is disputed. He further contends that the tribunal has
rightly disbelieved the salary certificate produced at
Ex.P148 and assessed the notional income at Rs.11,000/-
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per month, which does not call for interference at the
hands of this Court. On these grounds, he seeks to dismiss
the appeal.
14. Having heard the learned counsel for claimants
and learned counsel for Insurance Company and perused
the impugned judgment and award, though it is stated by
the claimants, who are the dependants that the deceased
was working as a mason and produced the salary
certificate at Ex.P148 through PW.4, the Class-I
Contractor, the same is disbelieved by the tribunal for the
reason that apart from production of Ex.P148, the
evidence of PW.4 does not corroborate by any other
material and Ex.P148 is not capable of being relied, as
PW.4, who claims to be the Class-I Contractor, has not
placed any other cogent and corroborative material to
show that the deceased was employed under him, so also,
the same is not facilitated by the claimants to show that
the deceased was employed and earning an income of
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Rs.30,000/- per month or PW.4 was paying the salary of
Rs.15,000/- per month.
15. In the absence of cogent and reliable material,
which the claimants ought to have produced and placed on
record to establish their case, it is onus on the claimants
to produce the documents to prove and establish their
case. However, the tribunal has disbelieved the version of
the claimants and taken the notional income at
Rs.11,000/- per month and consequently, calculated the
compensation under other heads. Therefore, I do not find
any good ground or cogent reason to interfere with the
finding and reason and the compensation awarded by the
tribunal. Hence, the compensation awarded by the tribunal
is retained.
16. Accordingly, I pass the following:
ORDER
i) The appeal in MFA.No.1284/2023
(MVC.No.600/2018) preferred by the injured
claimant namely, Chandrashekar is allowed-in-
part;
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ii) The appeal in MFA.No.4683/2023
(MVC.No.425/2018) preferred by the claimants,
dependants of the deceased Ganesh @
Shanmukha Nadar, do not deserve any further
modification and accordingly, it is dismissed;
iii) The judgment and award dated 06.08.2022
passed in MVC.No.600/2018 by the Court of the
Senior Civil Judge and Additional MACT,
Kundapura, is modified;
iv) The injured claimant namely, Chandrashekar in
MFA.No.4683/2023 (MVC.No.600/2018) is entitled
to a sum of Rs.17,10,904/- as against
Rs.12,92,696/- with interest @ 6% p.a.;
v) The balance compensation amount shall be paid
by the Insurance Company within a period of four
weeks from the date of receipt of a copy of this
order;
vi) All other terms and conditions with regard to
apportionment, Fixed Deposit, so also, release of
the amount as per the ratio stipulated by the
tribunal, are retained;
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
