Karnataka High Court
H G Ravi vs N B Mahesha on 13 November, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.10622 OF 2011(MV-I)
BETWEEN:
H.G.RAVI
S/O GOVINDARAYA KAMATH
AGED ABOUT 51 YEARS
R/O SRI KRISHNA MOTOR
ARYA DURGAMMA STREET
SHIMOGA-577207.
... APPELLANT
[BY SRI.SATISH CHANDRA, ADVOCATE (THROUGH VC)]
AND:
1. N.B.MAHESHA
S/O BASAVARAJAPPA
OWNER OF LORRY NO.KA-15-9797
R/O NYAMATHI
HONNALLI TALUK
DAVANAGERE TALUK-577223.
2. BABU
S/O SYED BUDEN SAB
MAJOR
DRIVER OF LORRY NO.KA-15-9797
R/O T.B.CIRCLE
HONNALLI
DAVANAGERE DISTRICT-577217.
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3. THE NEW INDIA INSURANCE CO.LTD.
SHIMOGA
... RESPONDENTS
[BY SRI.S.V.PRAKASH, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED;
SRI. A.M.VENKATESH, ADVOCATE FOR R3 (THROUGH VC)]
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
23.06.2011 PASSED IN MVC.NO.53/2010 ON THE FILE OF
DISTRICT JUDGE, ADDITIONAL MACT-II. I FAST TRACK
COURT. SHIMOGA. ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant seeking enhancement of the compensation awarded by the District Judge (Additional Motor Accident Claims Tribunal-II), I-Fast Track Court, Shimoga (henceforth referred to as the 'Tribunal) in MVC No. 53/2010.
2. Though this appeal is listed for admission, since the records of the Trial Court are received, the 3 appeal is taken up for final disposal with the consent of the parties.
3. For the sake of brevity and convenience, the parties shall henceforth be referred as they were arrayed before the Tribunal.
4. The claim petition would disclose that the claimant, a bus operator had been to Koratagere on 28.08.2003 in a Maruti car bearing registration No. KA-14 M 2727. When the claimant was on his way back at about 09.00 p.m. near M. Challi, a lorry bearing registration No. KA-15-9797 was driven rashly from the opposite direction and dashed against the Maruti car. As a result, the claimant suffered the following injuries:
1) Multiple superficial abrasions and laceration and an open fracture of the right medial Tibial condyle
2) Open Fracture of upper 1/3rd tibula right.4
5. The claimant was shifted to City Hospital where he was treated as an in patient for a period of three months. The claimant contended that he had spent a sum of Rs.2,50,000/- towards medical treatment but he had lost the bills. He further contended that he was an Income Tax assessee and his income was in the range of Rs.24,000/- per month. He further claimed that as a result of the accident, he was restricted to his bed and could not move around and was deprived of his ability to earn. He further contended that as a result of the accident, he could not henceforth dedicate himself to the business that he was involved in and therefore there was loss of income due to disability as well. The claimant therefore claimed petition under Section 166 of Motor Vehicles Act claiming compensation of a sum of Rs.21,25,000/-
6. The insurer disputed the accident and also the injuries suffered by the claimant. It contended that 5 the negligence was due to the rash and negligent driving by the claimant and that the claim petition was bad for non-joinder of necessary parties namely the insurer and owner of the car driven by the claimant.
7. Before the Tribunal, the claimant was examined as PW-2 and he marked Ex. P1 to P29 while the insurer did not examine any evidence but marked Ex.R1. The insurer did not dispute the fact that the vehicle in question was covered by an insurance policy issued by it.
8. The Tribunal noticed that the claimant had indeed suffered injuries but the claimant had failed to examine the Doctor who treated the claimant and had also failed to place on record the medical bills indicating the expenses incurred by the claimant for treatment.
9. The Tribunal did not feel it appropriate to rely upon Discharge Certificate issued by the Doctor, since 6 the Doctor who treated the claimant was not examined before the Court. However, having regard to the fact that the claimant had filed his Income Tax returns which was prior to the date of accident, the Tribunal considered the average monthly income at Rs.21,900/-.
10. Since there was no proof regarding disability, the Tribunal did not feel it necessary to grant compensation for the loss of income due to disability and awarded the following compensation.
Heads under which compensation Amount in
awarded Rupees
Medical treatment 75,000-00
Attendant and conveyance 2,000-00
Special diet 1,000-00
For pain and suffering 30,000-00
For loss of amenities, happiness, 30,000-00
enjoyment of life, etc.,
For loss of income during the period 21,900-00
of treatment
Total 89,900-00
11. Learned counsel for the claimant contended that the Doctor who treated the claimant is now not in 7 India and therefore it will be difficult for him to now examine the Doctor. It is further contended that there was no medical bills available with him but he has placed Ex.P9 which is the inpatient record of the claimant which disclosed the treatment availed by the claimant. He placed on record MRI of the right knee joint and this indicates that the claimant had suffered injuries and the later MRI (Ex.P9) done on 11.01.2011 indicated that there was malunion of medial tibial condyle and there was a partial tear at the tibial attachment of medial collateral ligament.
12. Learned counsel for the insurer however on the contrary contended that in the absence of any medical evidence, this Court cannot make an assumption of the disability in view of the law laid down in the case of Raj Kumar V/s Ajay Kumar and another reported in (2011) 1 SCC 343 and contended that this appeal may be remanded to the Trial Court for consideration. 8
13. It is relevant to note that the accident occurred on 28.08.2003 and the Income Tax Returns filed by the claimant on 20.08.2003 for the assessment year 2003-04 would indicate that his net income as Rs. 2,40,000/-. Therefore, it is safe to consider the monthly income at the rate of Rs.20,000/-. In so far as the question of medical expenses and the amount of disability, it is no doubt true that this Court cannot decide the amount of disability suffered by the claimant. However, having regard to the fact that the Doctor who treated the claimant is not in India and no fruitful purpose would be served in remitting back the matter to the Tribunal for ascertaining the extent of disability, having regard to the extent of disability considered by this Court in similar cases, it is appropriate that the whole body disability is considered at 8%. If the above is taken into consideration and having regard to the fact that the claimant is aged 44 years, the compensation awarded to the claimant by the Tribunal deserves to be enhanced. Hence this Court exercising its appellate 9 jurisdiction, in the light of Section 168 of the Motor Vehicles Act has re-calculated the compensation as follows:
Heads under which compensation Amount in awarded Rupees Medical expenses 55,000-00 Attendant and conveyance charges 3,000-00 Special diet charges 3,000-00 Pain and Suffering 40,000-00 Loss of amenities, happiness and 30,000-00 enjoyment of life Loss of income during the period of 40,000-00 treatment Loss of income due to disability 2,68,000-00 Rs. 20,000/- X 12 X 14 X 8% Total 4,39,000-00
14. In view of the above, the appeal filed by the claimant is allowed in part and the compensation of Rs.89,100/- granted by the Tribunal is enhanced to a sum of Rs. 4,39,000/-.
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15. The respondent No.3-insurer is directed to pay the compensation amount awarded by this Court to the claimant along with interest at the rate of 6% per annum from the date of claim petition till the date of realization.
16. The respondent No.3-insurer is directed to deposit the compensation amount within two months from the date of receipt of certified copy of this order.
Sd/-
JUDGE mbb