Karnataka High Court
Babu @ Chandrashekher S/O Madayya ... vs Sharanabasayya S/O Veerantayya Math ... on 15 November, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.33139/2013 (MV)
BETWEEN
BABU @ CHANDRASHEKHAR
S/O MADAYYA MATHAPATHI
AGE: 53 YEARS, OCC: COOLIE,
R/O CHANDAHALLI (CHANNAHALLI)
TQ. HUMNABAD, DIST. BIDAR
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND
1. SHARANABASAYYA S/O VEERANTAYYA MATH
AGE: 43 YEARS, OCC: BUSINESS,
R/O UDAYA NAGAR, JEWARGI COLONY,
GULBARGA
2. PREMANGOWDA S/O SHESHAPPA
AGE: MAJOR, OCC: BUSINESS,
R/O KOMMANSIRSAGI, TQ. JEWARGI,
DIST. GULBARGA
3. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
JAWALI COMPLEX, SUPER MARKET,
GULBARGA, THROUGH ITS DIVISIONAL
2
MANAGER, NATIONAL INSURANCE
CO. LTD., GULBARGA DIVISIONAL
OFFICE, BILGUNDI COMPLEX,
OPP: MINI VIDHAN SOUDHA, GULBARGA
...RESPONDENTS
(BY SRI S. S. ASPALLI, ADVOCATE FO R3;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA FILED U/S. 173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DT. 11.11.2013 PASSED IN
MVC NO.192/2010 ON THE FILE OF II ADDL. SENIOR
CIVIL JUDGE AND MACT AT GULBARGA, PARTLY
ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M. V. Act') by the claimant against the judgment and award dated 11.11.2013 passed in MVC No.192/2010 on the file of the II Additional Senior Civil Judge and Motor Accidents Claims Tribunal at Kalaburagi (for short 'Tribunal').
2. The parties shall be referred to as per their rankings before the Tribunal.
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3. Brief facts leading up to filing of the present appeal are that, on 08.05.2009, in the evening, when the claimant was proceeding to Kalaburagi for his personal work on a motorcycle bearing registration No.KA-32/K-4038 belonging to his friend Devadas Karakatti from his village Chandahalli, the said motorcycle being ridden by his friend very slowly and cautiously by extreme left side of the road and when the said motorcycle reached to Kurikota bridge, a Tata Sumo bearing registration No.KA-05/N-5151 driven by its driver came from opposite direction in high speed, rash and negligent manner and dashed to the motorcycle, in which the claimant was travelling, resulting in grievous injuries to the claimant. The claimant was shifted to Basaveshwar Hospital, Kalaburagi, where he was treated as an inpatient from 08.05.2009 to 09.05.2009 and then he was discharged and referred to Ashwini Sahakari Rugnalya Hospital, Solapur, where he was admitted on 09.05.2009 till 28.05.2009 and underwent operation, nails and K-wires were fixed at fracture site. He was discharged from the 4 said hospital on 28.05.2009 for want of money, as he was not in a position to meet out the hospital expenditure.
4. Thereupon, the claimant filed a claim petition under Section 166 of the M. V. Act claiming compensation of `12,25,000/- on the premise that he was hale and healthy and earning `200/- per day by doing coolie work and as he was only earning member of the family, the injuries sustained by him in the accident have caused severe pain and discomfort in his body. Hence, he is not in a position to do his work as he was doing earlier. The accident had occurred on account of rash and negligent driving by the driver of the Tata Sumo and since the respondent No.2 and 3 being the owner and insurer of the offending vehicle respectively are jointly and severely responsible to pay the compensation.
5. On service of notice, respondent Nos.1 and 3 appeared through their counsel and filed their written statement separately. Respondent No.2 has been placed exparte. In the written statement, the respondent No.1 5 submitted that he has sold his vehicle to respondent No.2 long back, who in turn had sold the same to one Channabasayya. However, it is submitted that as on the date of the accident, the offending vehicle was insured with respondent No.3 and hence, seeks for dismissal of the claim petition.
6. Respondent No.3 - insurance company has filed its written statement denying the petition averments, age, income and occupation of the claimant and also denied the mode and manner of the accident. It was submitted that as per the complaint, one Devidas Karakatti, who was riding the motorcycle, in which the claimant was a pillion rider, was not holding valid and effective driving licence and that the alleged accident had occurred due to rash and negligent riding by the rider of the said motorcycle and said Tata Sumo vehicle was not involved in the alleged accident. As such, there was no nexus between the injuries sustained by the claimant and 6 Tata Sumo vehicle involving in the accident. Hence, sought for dismissal claim petition.
7. Based on the pleadings, the Tribunal framed issues and recorded evidence. The claimant examined himself as PW.1, one Dr.Vijay H. Rathod has been examined as PW.2 and exhibited 30 documents as Exs.P1 to P30. No witness has been examined on behalf of the respondents except marking the policy of insurance as Ex.R1.
8. On evaluation of the evidence, the Tribunal held that the claimant has sustained the following injuries in the road traffic accident, which had occurred due to rash and negligent driving by the driver of the Tata Sumo. Consequently, the Tribunal held that the claimant is entitled for total compensation of `3,14,000/- together with interest at 6% per annum from the date of petition till its realization and directed the respondent No.3 - insurance company to pay the aforesaid compensation. 7 Aggrieved by the same, the appellant/claimant is before this Court seeking enhancement of the compensation.
9. Heard the learned counsel for the appellant/claimant and the learned counsel for the respondent No.3 - insurance company.
10. The learned counsel for the appellant/claimant reiterating the grounds urged in the appeal memorandum submitted that the claimant was earning `200/- per day by doing coolie work. However, the Tribunal grossly erred in assessing the income of the claimant only at `4,000/- per month without considering the material evidence placed on record. He further submitted that the doctor, who had issued the disability certificate has assessed the disability of the claimant to the extent of 37% to the whole body. However, the Tribunal has considered the same at 25%. Therefore, he seeks for allowing the appeal by enhancing the compensation.
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11. On the other hand, the learned counsel for respondent No.3 - Insurance Company supporting the judgment and award passed by the Tribunal submits that the compensation awarded by the Tribunal is based on the material evidence placed by the claimant himself, which cannot be altered. Hence, seeks for dismissal of the appeal.
12. On consideration of the submissions made by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the claimant has made out a case for enhancement of compensation?"
13. The accident in question and injuries suffered by the claimant are not in dispute. The claimant has suffered the following injuries:
"1. A CLW of 3 x 3 cm over lower 1/3rd of Rt. thigh.
2. A CLW 4 x 2 cm over the Rt. knee joint.9
3. A CLW of 0.5 x 0.5 cm over dorsum of right hand.
4. Crepitus at lower 1/4th of rt. thigh. As per X-ray report:
1. X-ray of right thigh - E/o. comminuted fracture in lower shaft of femur with displacement of fracture segment.
2. X-ray of right leg: E/o. fracture in upper end of tibia and fibula."
14. Though, it is contended by the claimant that he was earning `200/- per day as a coolie, no evidence to this effect has been produced. This Court in the absence of any evidence with regard to the income of the victims of the road traffic accident, takes into consideration the chart prepared by the Karnataka State Legal Services Authority. As per the chart, the notional income of the victims of the road traffic accident for the year 2009 has been fixed at `5,000/- per month and in the instant case the accident occurred on 08.05.2009, as such, the same is taken into consideration in the present case as well instead of `4,000/- per month as taken by the Tribunal. 10
15. The claimant had undergone treatment for a period of 43 days. Considering the nature of injuries suffered and disability assessed by the doctor, the Tribunal has assessed the disability to the extent of 25%. The same do not warrant any interference and is maintained as just and proper. The claimant was aged about 50 years at the time of the accident. The multiplier applicable is '13'. The loss of future income of the claimant is therefore calculated at `1,95,000/- (`5,000x12x13x25%).
16. The Tribunal has awarded `15,000/- towards pain and suffering. The claimant has suffered fractures referred to above, which are all serious in nature. The treatment involving surgery and insertion of nails and K- wires indicate the manner of treatment. Considering the same, an additional sum of Rs.35,000/- is added enhancing the same to by `50,000/-.
17. The Tribunal has awarded medical expenses at `1,20,000/- based on the material evidence produced by 11 the claimant. Hence, the same is maintained as just and proper.
18. As noted above, the claimant has undergone treatment as an inpatient for a period of 43 days. The Tribunal has awarded `5,000/- under the head of attendant, nourishment and conveyance charges. The same required to be enhanced to `20,000/- by adding `15,000/- thereof.
19. The claimant, who was treated as an inpatient for a period of 43 days and considering the nature of injuries suffered, he must have been advised to take follow up treatment and minimum six months time must have taken for recovery from the fractures. Therefore, the compensation awarded by the Tribunal towards loss of earning during the treatment period is to be enhanced from `8,000/- to `30,000/-.
20. The Tribunal has awarded `10,000/- under the head of loss of amenities. The same is enhanced to `50,000/- by adding `40,000/- thereof. Therefore, the 12 compensation awarded by the Tribunal deserves to be re- determined and re-calculated as follows:
Heads By Tribunal By this Court Pain and suffering `15,000/- `50,000/- Loss of future `1,56,000/- `1,95,000/- earning Loss of amenities `10,000/- `50,000/- Loss of earning `8,000/- `30,000/- during treatment period Medical expenses `1,20,000/- `1,20,000/- Attendant, `5,000/- `20,000/- nourishment and conveyance charges. Total `3,14,000/- `4,65,000/-
21. Thus, the claimant is entitled for enhanced compensation of `4,65,000/- instead of `3,14,000/- awarded by the Tribunal together with interest at 6% per annum from the date of petition till its realization. Hence, the point raised above is answered accordingly and following order is passed:
ORDER
(i) The appeal filed by the appellant -
claimant is partly allowed.
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(ii) The judgment and award of the Tribunal in MVC.No.192/2010 dated 11.11.2013 is modified.
(iii) The claimant is held entitled for enhanced compensation of `4,65,000/-
instead of `3,14,000/- awarded by the Tribunal together interest at the rate of 6% p.a. from the date of claim petition till its payment.
(iv) The respondent No.3 is liable to pay the compensation within a period of two months from the date of receipt of a certified copy of this judgment.
(v) The order regarding deposit and
apportionment made by the Tribunal
shall remain unaltered.
Sd/-
JUDGE
Srt