Karnataka High Court
Shankar S/O Tukaram Mule vs Sri Ramesh S/O Sadashiv Gend And Anr on 7 April, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201384/2021 (MV)
Between:
Shankar S/o Tukaram Mule,
Age: 58 years, Occ: Milk Vending and Coolie,
R/o Adhiv, Tq. Pandharpur,
Now residing CIB Colony,
Kalaburagi-585103.
...Appellant
(BY Sri. Basavaraj R. Math, Advocate)
AND:
1. Sri. Ramesh S/o Sadashiv Gend,
Aged about 43 years, Occ: Business,
R/o Gendwasti, Korti Road, Solapur,
Dist. Solapur-413003.
Owner of Mahindra maximo Tempo No.
MH.13/AN-4796.
2. The Head Customer Service Centre,
IFCO-TOKIO General Insurance Company Ltd.,
3rd Floor, III Block KSCMI Building,
No.8, Cunningham Road, Bangalore-58.
... Respondents
(Notice to R1 is Dispensed with;
By Sri C.S.Kalburgi, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to call for records and modify
the impugned judgment and award dated 05.05.2021
passed by the Prl. Senior Civil Judge and MACT at
Kalaburagi in MVC No.588/2018.
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This appeal coming on for Admission, this day, the
Court delivered the following:-
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the appellant-petitioner being aggrieved by the judgment and award dated 05.05.2021 passed in MVC No.588/2018 by the Prl. Civil Judge and MACT, Kalaburagi, (hereinafter referred to as 'the Tribunal', for short).
2. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal. Appellant is petitioner, respondents are respondents before the Tribunal.
3. Facts giving rise to the filing of the appeal briefly stated are that that on 09.01.2017, the petitioner along with his relative proceeding towards Aadhiv village on motorcycle bearing registration 3 No.MH-13/AN-1243, after attending milk vending business in Pandharapur. When he was on Chandrabhaga River Bridge on Pandharapur to Aadiv village, at that time one Mahindra Tempo Vehicle bearing registration No.MH-13/AN-4796 came from his back side in high speed and in a rash and negligent manner, dashed against the motorcycle of the petitioner and caused accident an sustained injuries. The petitioner filed a petition under Section 166 of the Act seeking compensation. It was pleaded that prior to the accident he was hale and healthy and doing milk vending business and used to earn Rs.12,000/- per month. He has spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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3.1. Respondent No.1 filed written statement denying the averments made in the petition. It is contended that the petition filed by the petitioner is false, frivolous and fictitious and same is not maintainable under law. It is further denied the age, occupation and income of the petitioner. It is contended that the vehicle of respondent No.1 was insured with respondent No.2 as on the date of accident and insurance policy was in force and respondent No.2 has to indemnify the respondent No.1 and to pay compensation. Hence, prayed to dismiss the petition against respondent No.1.
3.2. Respondent No.2 filed written statement in which the averments made in the petition. It is contended that driver of Mahindra was not holding valid and effective driving license as on the date of the accident. Hence, sought for dismissal of the petition. 5
3.3. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. In order to prove the case, the petitioner examined as PW-1 and in order to prove disability examined doctor as PW.2 and got exhibited documents namely Ex.P1 to Ex.P16. On behalf of the respondent, no oral evidence is adduced only got exhibited document namely Ex.R1. The Tribunal, after recording the evidence and considering the material on record, allowed the petition in part and awarded compensation of Rs.5,73,000/- along with interest at the rate of 6% p.a. from the date of petition till date of deposit and held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation and directed the respondent No.2 to deposit the compensation amount. Being dissatisfied with the compensation awarded by the Tribunal, the petitioner 6 has filed the present appeal seeking for enhancement of compensation amount.
4. Heard the learned counsel for petitioner and learned counsel for respondent No.2-Insurance Company.
5. Learned counsel for the petitioner submits that the compensation awarded by the tribunal is on the lower side. Hence, he prays to allow the appeal.
6. Per contra, the learned counsel for the respondent No.2/Insurance Company supports the judgment and award passed by the tribunal and does not call for any interference. Hence, prays to dismiss the appeal.
7. Perused the records and considered the submission made by the learned counsel for the parties.
8. The point that arise for consideration is with regard to quantum of compensation. 7
9. It is not in dispute with regard to manner of accident and also injuries sustained by the petitioner in the road traffic accident. In order to prove the negligence on the part of the driver of the offending vehicle, the petitioner has produced FIR and charge sheet which are marked as Exs.P1 and 3. Ex.P3, discloses that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle.
10. Insofar as quantum of compensation is concerned, the petitioner contended that prior to the accident he was hale and healthy, aged about 61 years and doing milk vending business and earning Rs.12,000/- per month from the business. Due the accident he has sustained injuries and suffered permanent disability. In order to substantiate the same, he has examined the doctor as PW.2. PW.2 has deposed that he has examined the petitioner, he has 8 issued disability certificate as per Ex.P10. Ex.P10 discloses that petitioner has suffered permanent disability to an extent of 40% to the whole body. Though, PW.2 is not a treated doctor, the tribunal has taken at 12% is on the lower side, which needs to be enhanced to 14%.
11. The petitioner has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2017, the notional income has to be taken at Rs.10,250/- p.m. The petitioner is aged about 61 years at the time of the accident and multiplier applicable to his age group is '7'. The whole body disability is taken at 14%. Thus, the petitioner is entitled for compensation of Rs.1,20,540/- 9
(Rs.10,250/- x 12 x 7 x 14%) on account of 'loss of future income'.
12. Further the tribunal has awarded compensation of Rs.10,000/- which is on the lower side, which needs to be enhanced to Rs.25,000/- on this head and as far other heads are concerned they are maintained as it is.
13. Considering the evidence of PW.2 and medical records produced by the petitioner, this Court re-assesses the compensation on the following heads; Sl.No. Heads By Tribunal By this Court
1. Pain & sufferings Rs.50,000/- Rs.50,000/-
2. Medical expenses Rs.3,37,236/- Rs.3,37,236/-
3. Towards diet and Rs.3,000/- Rs.3,000/-
attendant charges
4. Loss of income during Rs.20,500/- Rs.20,500/-
laid up period
5. Towards loss of future Rs.1,03,320/- Rs.1,20,540/-
earning capacity
6. Loss of amenities Rs.10,000/- Rs.25,000/-
Total Rs.5,73,056/- Rs.6,05,220/-
Rounded off to Rs.5,73,000/-
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14. The petitioner is entitled for the total compensation of Rs.6,05,220/- as against Rs.5,73,000/- awarded by the tribunal. Hence, the petitioner is entitled for enhanced compensation of Rs.32,200/- with interest @ 6% p.a.
15. In view of the above discussion, I proceed to pass the following:
ORDER
(a) The appeal is allowed in part.
(b) The impugned judgment and award passed by the Tribunal is modified. The petitioner is entitled for the total compensation of Rs.6,05,220/- as against Rs.5,73,000/-
awarded by the tribunal.
(c) The petitioner is entitled to an enhanced compensation of Rs.32,200/- along with interest at the rate of 6% per annum from the date of petition till the date of realization. 11
(d) The respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount before the tribunal within a period of eight weeks from date of the receipt of certified copy of this judgment.
(e) The tribunal is directed to release the enhanced compensation amount with interest in favour of the petitioner.
Sd/-
JUDGE msr