Karnataka High Court
Basawaraj vs M/S Dress Land Rep. And Ors on 10 November, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.201661 OF 2018 (MV-I)
BETWEEN:
Basavaraj S/o. Siddramappa Hugar,
Aged 55 years, Occ : Gram Panchayat PDO,
at Kalabelgundi, R/o Mugnoor,
Taluk : Sedam, Now at Bolewad,
Taluk & District - Kalburagi
...Appellant
(By Sri B.M.Kinikeri, Advocate)
AND:
1. M/s.Dress Land
Rep. by Pankaj Rambaa
Owner of Car bearing Reg.No.AP/09/A-7170,
R/o 3-4-424/5, Rahul Tower,
Near YMCA Blood Bank, Kachiguda,
Hyderabad - 500 003.
2. The Manager,
United India Insurance
Dr.Jawali Complex,
Super Market, Kalaburagi - 585 102.
... Respondents
(By Smt.Anuradha M.Desai, Advocate for R-2;
Notice to R-1 is dispensed vide order dated
28.05.2019)
This miscellaneous first appeal is filed under
Section 173(1) praying to modify the judgment and award
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dated 9th October 2017 passed by II Addl. Senior Civil
Judge and MACT at Kalaburagi in MVC No.261/2016 and
the appeal may kindly be allowed and award the
compensation as prayed for.
This appeal coming on for hearing, this day, the
court delivered the following:
JUDGMENT
This appeal is preferred by the claimant challenging the judgment and award passed by the court of II Addl. Senior Civil Judge and MACT, Kalaburagi (for short 'the Tribunal') in MVC No.261/2016 dated 09.10.2017. This appeal is founded on the premise of inadequacy of compensation.
2. Parties to the appeal shall be referred to as per their status before the tribunal.
3. Brief facts of the case is as under:
On 06.01.2016 at about 9.00 p.m. claimant was returning to his village Mugnoor from Sedam on his motorcycle bearing Reg.No.KA-32/L-7280 and when he was near Trivedi Nagar Bridge on Kalaburagi-Sedam Road, driver of Tata Indica car bearing Reg.No.AP-09/AC-7170, came in a rash and negligent manner at high speed and dashed against the claimant from behind, due to which he 3 sustained grievous injuries and shifted to Government Hospital at Sedam and thereafter, shifted to Kamreddy Trauma Care Hospital, wherein he was admitted as inpatient for twenty days. Due to the occurrence of accident, the claimant has expended `1,50,000/- towards medical expenses and incidental expenses and has sustained grievous injuries and became disabled in the accident due to the rash and negligent driving by driver of the car.
It is stated that prior to occurrence of accident, the claimant was hale and healthy, aged about 58 years and working as a PDO in Gram Panchayat, Kalabelgudi and getting salary of `28,000/- per month. Due to the said accident and injuries suffered, the claimant is not in position to do his work as he was doing prior to the accident and he is unable to get back to work. Hence, he filed a claim petition before the tribunal seeking compensation.
4. On service of notice, respondent No.1 remained exparte and respondent No.2 filed detailed statement of objections inter alia contending that the 4 claim made by the claimant in the claim petition is exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petition. It further pleaded that the driver of the car was not holding valid driving licence at the time of accident and thereby violated the policy conditions. Hence, on the basis of this, sought for dismissal of claim petition.
5. On the basis of pleadings, the tribunal framed relevant issues for consideration.
6. In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1 and the Doctor as PW.2 and got marked documents as Exs.P1 to P.17. Respondents have not examined any one of the witness, but with consent got marked the Insurance Policy as Ex.R1.
7. On the basis of material evidence both oral and documentary, the tribunal awarded the compensation of `2,40,100/- with interest at the rate of 6% per annum and directed the respondent Nos.1 and 2 to pay the compensation jointly and severally.
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8. Being aggrieved by the meager compensation amount awarded, the claimant is before this Court seeking enhancement of compensation.
9. It is the vehement contention of learned counsel for appellant/claimant that the tribunal has erred in awarding meager compensation and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimant.
10. He further contends that the tribunal has not taken into consideration the avocation of the claimant and has assessed meager amount as income thereby committing an error in not awarding just and reasonable compensation. He further contends that the Tribunal has committed an error in not awarding compensation towards future medical expenses. He further contends that even under the other heads the Tribunal has not awarded reasonable compensation commensurate to the injuries sustained by the claimant. On the basis of these submissions, he seeks to allow the appeal and to enhance the compensation awarded by the tribunal. 6
11. Per contra, learned counsel for the respondent No.2-Insurance Company vehemently contends that the judgment and award passed by the tribunal is in accordance with material evidence both oral and documentary and same does not call for interference at the hands of this Court. Learned counsel contends that the Tribunal has awarded just and reasonable compensation based on the injuries sustained by the claimant and interference by this Court is not warranted under the facts and circumstances of the case. On the basis of these submissions, he seeks to dismiss the appeal as same does not merit consideration.
12. Having heard the learned counsel for the appellant/claimant and learned counsel for respondents, the points that would arise for consideration before this Court are:
i) Whether the claimant is entitled for enhancement of compensation?
ii) What order ?
13. Having perused the entire material evidence both oral and documentary and the impugned judgment 7 and award, I am of the opinion that the tribunal has committed an error in awarding meager compensation thereby point Nos.1 and 2 are answered in the affirmative i.e. in favour of the claimant. Therefore, the claimant would be entitled for marginal indulgence of enhancement of compensation for the reasons stated herein below:
(a) It is not in dispute that the accident occurred on 06.01.2016 at 9.00 p.m. The involvement of the vehicle, occurrence of accident, injuries having been sustained by the claimant are all not disputed. It is also not disputed that a case came to be registered in Crime No.8/2016 for the offence punishable under Sections 279 and 338 of IPC read with Section 187 of the M.V.Act.
(b) In order to substantiate this aspect and to prove the same, the claimant has produced the documents as Exs.P1 to P5, which are the police records wherein the driver of the car has been charged with criminal offence as stated above. There is no dispute that the charge-sheet has been laid against driver of car for the aforestated offences. There is no challenge made to the laying of charge-sheet by the driver or the owner of the car. It is 8 also not the case of respondent/Insurance Company that the said initiation of criminal proceedings against the driver of the car is fictitious and concocted, so also, no contra material has been placed before the tribunal or before this Court to prove the same as invalid or not being genuine. In the absence of such material before the Court and there being no challenge to the charge-sheet by the driver of car, the negligence is rightly attributed against the driver of car by the tribunal.
(c) Coming to the aspect of age, avocation and income of claimant, no doubt the claimant has averred that he was working as PDO in Gram Panchayat Kalabelgudi and getting salary of `28,000/- per month but Ex.P.6 -salary certificate shows the claimant was drawing a net salary of `19,198/-. Accordingly, income requires to be assessed at `20,000/- per month in the present case and so it is.
(d) Towards pain and suffering, I deem it is appropriate to award `75,000/- as against `25,000/- as the claimant has sustained three fracture injuries. 9
(e) The Tribunal awarded a sum of `7,000/- towards attendant charges, food and conveyance charges, I deem it appropriate to award `15,000/- under this head is as the claimant was inpatient in the hospital.
(f) Towards medical expenses the Tribunal has awarded a sum of `1,83,100/- on the actual bills produced by the claimant at Ex.P.12 same is not interfered and is retained.
(g) Tribunal has not awarded any amount under the head loss of income during laid up period and claimant having suffered fracture could not be possible for him three fractures, it will not be possible to get back to work immediately atleast four months period would be required to get back his normal day to day work. Therefore, this Court having already assessed the income to be `20,000/- net income being `19,198/- as per salary slip at Ex.P.6 same is rounded of to `20,000/-. `80,000/- (20,000x4) under this head is just and reasonable.
(h) Towards loss of amenities Tribunal has awarded a sum of `25,000/-, considering Ex.P.5 wound 10 certificate and the injuries sustained therein I deem it appropriate to award `50,000/- under this head as against `25,000/-.
(i) Towards future medical expenses Tribunal is not awarded any amount the Doctor who has adduced evidence as PW.2 at Ex.P.9 disability certificate has stated another `50,000/- would be required for future medical expenses, I deem it appropriate to award `40,000/- under this head towards future medical expenses.
14. In view of the above discussions, claimant is entitled to total compensation of `4,43,100/- as against `2,40,100/-, morefully mentioned in the table below ;-
As awarded by As awarded by
Head
the tribunal (`) this Court (`)
Towards injury pain and 25,000/- 75,000/-
sufferings
Towards attendant 7,000/- 15,000/-
charges, food and
conveyance charges
Towards medical 1,83,100/- 1,83,100/-
expenses
Towards loss of 25,000/- 50,000/-
amenities and nutrition
food
Towards loss of income Nil 80,000/-
during laid-up period
Towards future medical Nil 40,000/-
expenses
TOTAL 2,40,100/- 4,43,100/-
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Accordingly, I pass the following :
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award passed by the Court of
II Addl. Senior Civil Judge and Motor Accident Claims Tribunal, Kalaburgi in MVC No.261/2016 dated 09.10.2017 is modified;
iii) The claimant is entitled for total compensation of `4,43,100/- as against `2,40,100/- awarded by the tribunal;
iv) The entire liability is fixed on respondent Nos.1 and 2 i.e. the owner of the offending vehicle and the insurer respectively;
v) Respondent No.2-Insurer having insured vehicle and policy being in subsistence, is liable to pay the compensation amount within four weeks from the date of receipt of certified copy of the judgment;
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vi) The entire amount of compensation shall be released in favour of the claimant.
Registry to transmit the records to the concerned tribunal forthwith.
Sd/-
JUDGE sn