Karnataka High Court
Gopal S/O Revu Pawar vs M/S Tenzing Transport Pvt. Ltd And Anr on 29 May, 2023
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MFA No. 201982 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCL. FIRST APPEAL NO. 201982 OF 2017 (MV-I)
BETWEEN:
1. GOPAL S/O REVU PAWAR
AGE: 32 YEARS OCC: DRIVER,
R/O DEVUR LT TQ: SINDAGI,
DIST: VIJAYAPUR-586101
...APPELLANT
(BY SRI. BABU H METAGUDDA, ADVOCATE)
AND:
1. M/S TENZING TRANSPORT PVT. LTD
R/O 817-THIRUTHANGAL ROAD, SHIVAKASI,
DIST: VRUDDUNAGAR, TAMIL NADU-626123
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
Digitally SANGAM BUILDING S.S. FRONT ROAD,
signed by
RAMESH VIJAYAPUR-586101
MATHAPATI
...RESPONDENTS
Location:
High Court of (BY SRI. SUDARSHAN M, ADVOCATE FOR R2
Karnataka NOTICE TO R1 DISPENSED WITH)
THIS MFA FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED- 27.04.2017 PASED IN MVC NO.2118/2013 BY
THE MOTOR ACCIDENT CLAIMS TRIBUNAL AT VIJAYAPUR AND
ENHANCING THE COMPENSATION FROM RS.8,500/- WITH 9%
INTEREST TO RS.6,75,000/- WITH 18% INTEREST.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 201982 of 2017
JUDGMENT
The claimant is in appeal challenging the quantum of compensation determined by MACT, Vijayapura, in MVC No.2118/2013 vide judgment and award dated 27.04.2017.
2. The claim petition discloses that on 17.05.2013, the claimant was driving a lorry bearing registration No.KA-28/B-3008. He contends that the driver of another lorry bearing registration No.TN-67/AS-6815 stopped the vehicle suddenly and parked it on the middle of the road. As a result, he dashed against the hind portion of the lorry and sustained injuries. He was shifted to Laxmi Hospital, Ranebennur and thereafter admitted to Sanjeevini Hospital and Dr.A.K.Nayak Hospital, Bijapur. He contended that the injuries suffered by him was due to the rash and negligent driving by the driver of the offending vehicle who stopped the vehicle suddenly. The claimant therefore filed a claim petition under Section 166 of the M.V.Act claiming -3- MFA No. 201982 of 2017 compensation of Rs.6,75,000/- from the owner and insurer of the offending vehicle.
3. The insurer contested the claim petition and denied the accident as well as negligence on the part of the driver of the offending vehicle. It generally denied all other contentions and claimed that the driver of the offending vehicle did not possess valid licence, the vehicle did not possess a fitness certificate and and permit etc. Based on these rival contentions, the claim petition was set down for trial.
4. The claimant was examined as PW.1 and he marked Exs.P1 to P10 while doctor was examined as PW.2, who deposed that the claimant had suffered disability to the extent of 25% since the claimant had suffered partial vision loss.
5. Based on the oral and documentary evidence, the tribunal held that the claimant did not produce any adequate material to show that he had suffered injuries to -4- MFA No. 201982 of 2017 the eye and that the injuries suffered by the claimant were simple as per the wound certificate at Ex.P6 and awarded the following compensation;
Sl.No. Heads of Compensation Amount in Rs. 1 Pain & Suffering 7,000/-
2. Medical expenses 21,333/-
Total 28,333/-
Rounded off 28,300/-
6. The Tribunal held that the driver of the
offending vehicle had parked the vehicle on the left side of the road and that it was the claimant who dashed against hind portion of the parked lorry and therefore the claimant was negligent and was responsible for the accident. The Tribunal held that the claimant had contributed 70% to the accident and consequently fastened the liability of a sum of Rs.8,500/- upon the insurer of the offending vehicle along with interest @ 9% p.a.
7. Being aggrieved by the same, the claimant is in appeal.
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8. Learned counsel for the claimant submitted that the claimant had suffered partial loss of vision as per the disability suffered at Ex.P10 and therefore the tribunal must have assessed the disability having regard to the fact that the claimant was driver by profession.
9. Per contra, learned counsel for the Insurer submits that the wound certificate does not disclose any injury to the eye of the claimant. On the contrary, the injuries were simple in nature. PW.2, was not the doctor who treated the claimant. However, without clinically examining PW.2, he had issued a disability certificate that the claimant had suffered partial loss of vision and thereby suffered injuries to the extent of 25%. He submitted that the claimant was treated at Sanjeevini Super Specialty Hospital and the documents issued by Sanjeevini Super Specialty Hospital which are placed on record as Ex.P8, does not disclose that the claimant was treated by any eye specialist. He further submits documents such as discharge summary issued by Sanjeevini Super Specialty -6- MFA No. 201982 of 2017 Hospital, was placed on record and therefore the claim made by the claimant is bogus and is not supported by adequate material.
10. I have considered the submissions made by the learned counsel for the claimant as well as the learned counsel for the insurer.
11. The fact that the accident in question occurred on 17.05.2013 at about 12.25 a.m., on NH-4 is not in dispute. The driver of the offending vehicle could not have parked the vehicle on national highway and if he had, he must have ensured that the other users of the road are aware of the parked vehicle. The fact that the claimant had tail ended the parked lorry indicates that the hazard/parking lights were not switched on. Therefore, the possibility of the claimant not noticing the parked lorry and dashing against it cannot be ruled out. As rightly contended by the learned counsel for the insurer, there is no material to placed before the Tribunal to establish that the claimant had suffered injury to the eye and had lost -7- MFA No. 201982 of 2017 vision. Therefore, this Court considers that the disability assessed by the tribunal based on the report of PW.2 is without any basis. Having regard to the fact that the accident occurred on 12.25 a.m., it is difficult to attribute negligence to the claimant. However having regard to the fact that the claimant had undergone treatment at Sanjeevini Super Specialty Hospital, this Court considers it appropriate to enhance the compensation awarded by the tribunal globally to a sum of Rs.50,000/-, which is payable by the respondent No.2-insurer of the offending vehicle along with interest @ 6% p.a. from the date of claim petition till realization. The insurer is directed to deposit the enhanced compensation along with interest before the tribunal within a period of one month from the date of receipt of copy of this judgment and award. Upon deposit, the same shall be released to the claimant.
Sd/-
JUDGE MSR List No.: 1 Sl No.: 51