Karnataka High Court
Sri Basavaraj vs V Chethan on 3 June, 2022
Author: B.Veerappa
Bench: B.Veerappa
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MFA No. 3981 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.3981 OF 2021(MV-I)
BETWEEN:
1. SRI BASAVARAJ,
S/O LATE PATTE GOWDA,
AGED ABOUT 41 YEARS,
COOLIE AND AGRICULTURIST,
SIRGAPURA, MALALURU POST,
CHIKKAMAGALURU TALUK
PIN CODE 577101.
...APPELLANT
(BY SRI. MANJUNATH PRASAD H N., ADVOCATE)
AND:
1. V. CHETHAN,
S/O D. R. VIRUPAKSHA,
AGED ABOUT 33 YEARS,
NO.101, NALLUR,
CHIKKAMAGALURU TALUK,
Digitally signed by PIN CODE 577101.
USHA NAGENAHALLI (DRIVER OF J.C.B. KA-18-N-9703)
SHANMUKHAPPA
Location: High Court of
Karnataka
2. SHIVAJOGAIAH KERIMATH,
S/O LATE SHIVAMOORTHAIAH,
AGED ABOUT 52 YEARS,
RASHMI NILAYA,
DEEPA NURSING HOME ROAD,
LAKSHMISHA NAGAR,
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MFA No. 3981 of 2021
CHIKKAMAGLAURU 577101.
OWNER OF J.C.B.. KA-18-N-9703
3. BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD.,
BRANCH OFFICE 324/1,
CHAMARAJA MOHALLA,
MYSORE 570024.
...RESPONDENTS
(BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R3;
R2 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 22.12.2022 NOTICE TO R1 IS DISPENSED
WITH)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 02.03.2021 PASSED IN MVC NO.05/2017 ON
THE FILE OF THE MACT AND I ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, CHIKKAMAGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, B. VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant-claimant, who has suffered 100% disability filed the present miscellaneous first appeal claiming enhancement of compensation awarded by the impugned judgment and award dated 2.3.2021 passed in M.V.C.No.5/2017 by the Motor Accidents Claims Tribunal and I Additional Senior Civil Judge and JMFC., Chikkamagaluru, awarding total compensation of Rs.4,77,615/- with interest at -3- MFA No. 3981 of 2021 the rate of 9% per annum from the date of claim petition till realization.
2. It is the case of the appellant-claimant that he had filed a claim petition under the provisions of Section 166 of the Motor Vehicles Act seeking compensation of Rupees One Crore with interest at the rate of 12% per annum contending that he is a coolie; One Vedananda Murthy had called him and his two friends viz., Dharme Gowda and Nagesh to his house as there was coolie work in his old house. Therefore, he and his two friends went to the house of Vedananda Murthy. On 1.10.2016 at about 9.00 a.m., the said Vedananda Murthy had arranged three Tractors and one Earth Mover JCB for work. When they were doing coolie work in the house of Vedananda Murthy at about 5.00 p.m., the 1st respondent, who was the driver of Earth Mover JCB bearing Registration No.KA-18/N-9703, drove the vehicle in a rash and negligent manner without taking proper care and caution, turned the Earth Mover JCB front and back and in that process, it hit him from the backside cradle of JCB, due to which, he sustained grievous injuries to his head, back, abdomen and chest. He was shifted to M.G. Hospital, Chikkamagaluru for treatment. After first aid treatment, he -4- MFA No. 3981 of 2021 was shifted to Nanjappa Hospital, Shivamogga where he was admitted as in-patient from 1.10.2016 to 6.10.2016. Thereafter, was shifted to NIMHANS Hospital, Bengaluru where he had taken treatment for his brain, spinal and other injuries. He had also taken treatment at SDM College of Ayurveda and Hospital at Hassan and spent amount of Rupees Two Lakhs towards medical and other expenses and also required another sum of Rupees Two Lakhs towards future medical expenses. By doing mason work and agricultural work, he was earning more than Rs.30,000/- per month and also was having two acres of wet land. He was maintaining his family consisting of wife, two children and mother, but on account of accident and injuries suffered, is not in a position to do his coolie, mason and agricultural works. Due to rash and negligent driving of 1st respondent, 2nd respondent being the owner and 3rd respondent being the insurer of the offending vehicle - JCB Earth Mover are jointly and severally liable to pay the compensation. Therefore, sought to allow the claim petition.
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3. Respondent No.1 being the driver of JCB bearing registration No.KA-18/N 9703 and respondent No.2 being the -5- MFA No. 3981 of 2021 owner of the said vehicle filed statement of objections denying the rash and negligent driving of driver of the offending vehicle. The age, income and expenditure incurred by the claimant has been denied. It was further contended that the 1st respondent- driver of the offending vehicle was having valid and effective driving license to drive the JCB Earth Mover and the policy was in force on the date of the accident and therefore, if the claimant is entitled for any compensation, then the 3rd respondent - Insurance Company is liable to pay the same to the claimant and prayed to dismiss the claim petition.
4. The Insurance Company filed its statement of objections admitting issuance of insurance policy in respect of JCB Earth Mover for the period from 7.10.2015 to 6.10.2016 and its validity as on the date of the accident and therefore, the liability, if any, is governed by the terms and conditions of the insurance policy. However, the insurance company denied the rash and negligent driving by the driver/1st respondent of JCB Earth Mover and contended that the 1st respondent was not holding valid and effective driving licence as on the date of the accident to drive the offending vehicle. The insured and the concerned Police have not informed the fact of the accident to -6- MFA No. 3981 of 2021 the insurance company and that the compensation claimed by the claimant is excessive and exorbitant and the accident was due to rash and negligent driving of the claimant and sought for dismissal of the claim petition.
5. Based on the aforesaid pleadings, the Tribunal framed three issues for consideration.
6. In order to establish the case, the claimant examined himself as P.W.1 and two other witnesses as P.Ws.2 and 3 and got marked 13 documents as Exs.P.1 to 13. On behalf of the respondents, the Doctor, Assistant Manager and Second Division Assistant of RTO Office were got examined as R.W.1 to 3 and got marked 10 documents as Ex.R.1 to 10 and closed their case.
7. The Tribunal considering both oral and documentary evidence on record recorded a finding that the claimant has proved that he sustained grievous injuries on account of the accident that occurred on 1.10.2016 at 5.00 p.m., due to rash and negligent driving of the driver of the JCB Earth Mover bearing Registration No.KA-18/N-9703 while doing the coolie work in the house of Vedanandamurthy and since respondent -7- MFA No. 3981 of 2021 No.3 - Insurance Company has failed to prove that the 1st respondent-driver of the offending vehicle was not having effective driving license to drive the J.C.B. at the time of aforesaid accident; fastened the liability on the Insurance Company awarding compensation of Rs.4,77,615/- with interest at the rate of 9% per annum from the date of petition, till its realization. Hence, the present miscellaneous first appeal is filed by the claimants for enhancement of compensation.
8. The insurance company has not filed any appeal against the impugned judgment and award passed by the Tribunal.
9. We have heard the learned Counsel for both parties.
10. Sri H.N. Manjunath Prasad, learned Counsel for the appellant-claimant contended with vehemence that the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.4,77,615/- with interest at the rate of 9% per annum from the date of petition, till its realization is very meager and contrary to the material on record and hence, requires further enhancement. He would further contend that, award passed by the Tribunal is also -8- MFA No. 3981 of 2021 contrary to the dictum of the Hon'ble Supreme Court in the case of Kajal -vs- Jagdish Chand and Others in Civil Appeal No.735/2020 arising out of Special Leave Petition (C) No.15504/2019. He would further contend that Tribunal held that wound certificate was not got marked which is factually incorrect and infact, along with the final report it was marked at Ex.P.11, the Tribunal without considering Ex.P.11, has awarded the compensation by the impugned judgment and award which is erroneous.
11. The learned Counsel for the claimant would further content that Tribunal awards a meager sum towards loss of income during laid up period and towards food and nourishment amounting to Rs.3,000/- each, on the basis that claimant was earning Rs.150/- per day and that claimant was inpatient for 20 days only which according to the claimant is grave error committed by the Tribunal.
12. The learned Counsel would further contend that the doctor - P.W.3, who has issued the disability certificate Ex.P.13 has deposed that the claimant has suffered 100% disability which aspect has not been considered by the Tribunal and -9- MFA No. 3981 of 2021 thereby erroneously has awarded meager compensation under the head disability at Rs.3,00,000/- and further contend that the compensation awarded under other heads is also on the lower side and therefore, the claimant is entitled for further enhancement as claimed in the claim petition. Accordingly, he sought to allow the miscellaneous first appeal.
13. Sri Ravi S. Samprathi, learned Counsel for respondent No.3-Insurance Company while justifying the impugned judgment and award passed by the Tribunal would contend that to show the actual income, the claimant has not produced any material on record and as such, the Tribunal was justified in awarding compensation which is just and proper. He would further contend that compensation awarded towards disability includes future loss of income and the Tribunal has considered the aspect that there are chances of claimant recovering in future, if proper treatment is taken by the claimant and therefore, the same does not call for interference in the present miscellaneous first appeal in exercise of powers under the provisions of Section 173(1) of the Motor Vehicles Act and as such, he sought to dismiss the miscellaneous first appeal.
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MFA No. 3981 of 2021
14. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration is:
"Whether the appellant/claimant is
entitled for enhancement of
compensation in the facts and
circumstances of the present case?"
15. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully.
16. It is an undisputed fact that the claimant has sustained 100% disability in the unfortunate accident that occurred on 1.10.2016 due to rash and negligent driving of the driver of offending vehicle i.e., JCB Earth Mover bearing registration No. KA-18/N-9703 and the jurisdiction police have registered a criminal case bearing No. 172/2016 against the driver of the JCB Earth Mover - Sri V. Chethan-respondent No.1.
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MFA No. 3981 of 2021
17. Though the claimant has deposed that he was earning a sum of Rs.30,000/- per month as a Coolie as well as from agricultural work, no document is produced to prove the same. It is impossible for a coolie to produce the document to prove his actual income since it would be paid by cash. The RTC - Ex.P.8 shows that the property stands in the name of one Puttamma and the same is not in dispute. In the absence of any document, notional income as per the chart prepared by the Legal Services Authority for the accident that occurred in the year 2016 to be taken is Rs.9,500/- per month and unfortunately, the Tribunal has taken the view that the income of the claimant/appellant as Rs.150/- per day and assessed the income of the claimant during the period of inpatient for 20 days (Rs.150/- per day x 20 days) Rs.3,000/-. As the claimant might had taken some time for healing up of the wounds immediately after the discharge from the hospital and was unable to look after his day to day affairs on his own, the Tribunal recorded a finding that he is entitled for compensation of Rs.9,000/- towards food, extra nourishment, attendant charges, transportation. Hence, the claimant was awarded a compensation of Rs.15,000/- towards attendant, food and extra
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MFA No. 3981 of 2021 nourishment, etc. We are surprised and shocked to notice that the Tribunal has taken the income of the claimant at Rs.150/- per day when he has claimed a sum of Rs.30,000/- per month in the claim petition. Unfortunately, the Tribunal has lost sight of the said fact and thereby proceeded to award a sum of Rs.3,000/- towards loss of income during the period as inpatient which is without any basis and contrary to the material on record.
18. The doctor - P.W.3, who examined the claimant has issued the disability certificate-Ex.P.13 has deposed that the claimant has suffered 100% permanent disability and he is dependant on wheel. Inspite of the said material aspect, the Tribunal has erred in coming to the conclusion that the percentage of disability may come down, if he takes treatment and awarded only a sum of Rs.50,000/- towards pain and sufferings and Rs.1,12,615/- towards medical bills and in total awarded a compensation of Rs.4,77,615/- which is very meager and contrary to the material on record. Thereby, the Tribunal has committed an error in passing the impugned judgment and award.
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MFA No. 3981 of 2021
19. In view of the above and in the interest of justice, we are of the considered view, that it would be just and proper, if we take the income of the *injured claimant at Rs.9,500/- per month and by applying the multiplier of 13 and taking 100% disability, the loss of future income would be Rs.9,500/- x 12 x 13 = Rs.14,82,000/-.
20. After re-assessing the entire material on record, we are of the considered opinion that the claimant is entitled for just compensation under different heads as under:
Loss of future income Rs. 14,82,000/- Pain and Suffering Rs. 1,50,000/- Loss of income during laid up period Rs. 50,000/- Attendant, food and extra nourishment Rs. 25,000/- Loss of amenities (throughout life) Rs. 2,00,000/- *Towards future medical expenses Rs. 1,50,000/- Towards medical bills Rs. 1,13,000/- Total Rs. 21,70,000/- Less compensation awarded by the Tribunal Rs. 4,77,615/- Enhanced Compensation Rs. 16,92,385/-
21. For the aforesaid reasons, the point raised in the present miscellaneous first appeal is answered in the *Corrections carried out vide court order dated 8/7/2022.
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MFA No. 3981 of 2021 affirmative holding that the claimant-appellant has made out a case for enhancement of compensation awarded by the Tribunal in the facts and circumstances of the present case. In that view of the matter, the claimant is entitled to total compensation of Rs.21,70,000/- (Rupees Twenty One Lakhs Seventy Thousand Only) as against Rs.4,77,615/- (Rupees Four Lakhs Seventy Seven Thousand and Six Hundred and Fifteen Only) awarded by the Tribunal. Thus the claimants are entitled to the enhanced compensation of Rs.16,92,385/- (Rupees Sixteen Lakhs Ninety Two Thousand and Three Hundred and Eighty Five Only) with interest at the rate of 8% per annum from the date of claim petition till realization.
22. For the reasons stated supra, we pass the following:
ORDER
i) Miscellaneous First Appeal is allowed in part;
ii) The impugned judgment and award dated 2.3.2021 passed in M.V.C.No.5/2017 by the Motor Accidents Claims Tribunal and I Additional Senior Civil Judge and JMFC., Chikkamagaluru, is hereby modified
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holding that the claimant is entitled for the total compensation of Rs.21,70,000/- (Rupees Twenty One Lakhs Seventy Thousand Only) as against Rs.4,77,615/- (Rupees Four lakhs Seventy Seven Thousand Six Hundred and Fifteen only) awarded by the Tribunal and the claimants are entitled for the enhanced compensation of Rs.16,92,385/- (Rupees Sixteen Lakhs Ninety Two Thousand and Three Hundred and Eighty Five Only) with interest at the rate of 8% per annum from the date of claim petition till realization after deducting the compensation awarded by the Tribunal;
iii) The insurance company shall deposit the enhanced compensation within a period of six weeks from the date of receipt of a copy of this judgment and award. The liability to pay the compensation shall be in terms of the impugned judgment and award passed by the Tribunal;
iv) On deposit of the enhanced compensation by Respondent No.2 -the insurance company, a sum of
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MFA No. 3981 of 2021 Rs.9,00,000/- (Rupees Nine Lakhs only) shall be deposited in the name of the claimant - Sri Basavaraj in any of the Nationalised Bank till his lifetime so as to ensure that he is taken care of by his wife and children, if any, since he has to be on wheels as could be seen from the photographs and the remaining amount with proportionate interest shall be disbursed to the appellant/claimant immediately on proper identification; and
v) The claimant is at liberty to withdraw the periodical interest as and when it accrues for his medical expenses.
Office to draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE NSU