Karnataka High Court
Shri. Mhatru S/O Hanamant Kutre vs Shri. Balkrishna Gopal Godse on 7 March, 2024
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NC: 2024:KHC-D:4953
MFA No. 100812 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100812 OF 2021 (MV-I)
BETWEEN:
SHRI. MHATRU
S/O. HANAMANT KUTRE,
AGE: 40 YEARS,
OCC: ELECTRICIAN AND
AGRICULTURE, (NOW NIL),
R/O. BEKWAD,
TALUKA-KHANAPUR,
DISTRICT: BELAGAVI,
AT PRESENT-SHINOLI,
TALUKA-CHANDGAD,
DISTRICT-KOLHAPUR.
...APPELLANT
Digitally (BY SRI. DEEPAK S. KULKARNI, ADVOCATE)
signed by
JAGADISH T R
Location: AND:
HIGH COURT
OF
KARNATAKA 1. SHRI. BALKRISHNA GOPAL GODSE,
AGE: MAJOR,
OCCUPATION: BUSINESS,
R/O. C.C.B-72, SHIVANJALI,
S. V. COLONY,
TILAKWADI, BELAGAVI,
TALUKA & DISTRICT: BELAGAVI,
(OWNER OF TATA- HGV (TIPPER)
VEHICLE BEARING REGISTRATION
NO.KA-22/B-4183).
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NC: 2024:KHC-D:4953
MFA No. 100812 of 2021
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE NO.1568M,
2ND FLOOR,
ABOVE BANK OF BARODA,
RAMDEV GALLI,
BELAGAVI-590002,
TALUKA & DISTRICT-BELAGAVI.
...RESPONDENTS
(BY SRI. S. S. KOLIWAD, ADV. FOR R2,
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, PRAYING TO THE JUDGMENT AND AWARD
DATED 10-11-2020, IN M.V.C. NO.1132/2017 PASSED BY THE
HON'BLE II ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER OF
ADDITIONAL MACT, BELAGAVI, IN AWARDING RS. 2,82,900/- @ 6%
PER ANNUM BE KINDLY BE MODIFIED BY ENHANCING IT TO
RS.10,00,000/- @ 18% PER ANNUM FROM THE DATE OF THE
PETITION, TILL THE DATE OF THE PAYMENT BY HOLDING THE
RESPONDENTS LIABLE TO PAY THE COMPENSATION, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:4953
MFA No. 100812 of 2021
JUDGMENT
This appeal is filed by the appellant/injured seeking for enhancement of compensation being aggrieved by the judgment and award dated 10.11.2020, passed in MVC No.1132/2017 on the file of II Addl. Sessions Judge & Member of Addl. MACT, Belagavi (for short, 'Tribunal').
2. Brief facts leading to filing of this appeal are that on 08.08.2016, appellant/injured after completing the work was proceeding on the motor cycle bearing Registration No.KA- 22/EP-6538 along with the pillion rider. At that time, the driver of Tata-HGV (Tipper) vehicle bearing Registration No.KA-22/B- 4183 driven in high speed, in a rash and negligent manner, dashed to the appellant vehicle, resultantly, the appellant and the pillion rider fell down from the motor cycle, sustained grievous injuries to his hands and legs. It is further averred that the appellant was provided treatment at KLE's Hospital, Belagavi and incurred expenditure of more than Rs.2,00,000/- for the aforesaid injuries. It is also averred that the appellant/injured was hale and healthy prior to the accident in question. Due to the accident, he has suffered disability and lost the earning capacity. He was earning Rs.20,000/- per -4- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 month prior to the accident and was maintaining the family out of the said income. Hence, he filed claim petition seeking for compensation.
3. The respondent entered appearance before the Tribunal and filed statement of objections denying the mode of accident, age, occupation, income and injuries sustained by the appellant/injured. It is also averred that the accident in question is caused due to the negligent driving of the motor cycle by the appellant himself and sought for dismissal of the claim petition.
4. During the course of trial, the appellant/claimant examined himself as PW1 and got examined Dr.S R. Angadi as PW2 got marked 19 documents as Ex.P1 to Ex.P19. The respondents have not adduced any oral evidence with the consent got marked copy of the Insurance Policy as Ex.D1.
5. The Tribunal after analyzing the evidence available on record awarded total compensation of Rs.2,82,900/- along with interest at the rate of 6% per annum from the date of claim petition till realization. Being aggrieved by the -5- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 same, the present appeal is filed by the appellant/claimant seeking for enhancement of compensation.
6. I have heard the arguments of the learned counsel for the appellant/claimant and learned counsel for the respondents.
7. Sri.Deepak S. Kulkarni, learned counsel appearing for the appellant/claimant submits that the Tribunal has committed grave error in assessing the income of the injured at Rs.7,000/- per month which is contrary to the evidence available on record. He further argues that the Tribunal has committed further error in assessing the disability of the appellant at 14%, which is contrary to the oral evidence of PW2 and the medical evidence available on record and he seeks to re-assess the same. He also argues that the Tribunal has committed error in not awarding any compensation under the head of loss of future prospects of the appellant/injured and the Tribunal has also committed error in not awarding any compensation under the head of future medical expenses. He submits that the award of -6- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 compensation by the Tribunal on other heads is also on lower side requires to be re-calculated based on the evidence. Hence, he seeks to allow the appeal.
8. Per contra, Sri.S S. Koliwad, learned counsel appearing for the respondent No.2/Insurance Company supports the impugned judgment and award of the Tribunal and submits that PW2 is a stock witness and he has habit of issuing Disability Certificate on higher side to the injured in the accident claims. He submits that his evidence cannot be the sole basis to assess the disability of the appellant/injured. He argues that the Tribunal has rightly assessed the disability at 14% which does not call for any interference. He also submits that the award of compensation by the Tribunal on other heads is just and proper and does not call for any enhancement.
9. Having heard the arguments of learned counsel for the appellant and the learned counsel for the respondents. Perused the material available on record and certified copies of the evidence and the exhibits made available by the -7- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 learned counsel appearing for the appellant. The point that would arise for consideration in this appeal is:
a) Whether the appellant/claimant is entitled for the higher compensation?
10. The answer to the above point is in the 'affirmative' for the following reason.
11. The parties to the proceeding do not dispute that the appellant has suffered grievous injuries in a road accident on 08.08.2016. It is also not in dispute that the appellant has taken treatment at KLE's Hospital, Belagavi. In support of his claim he has examined Dr.S R. Angadi as PW2, who has examined the appellant and issued the Disability Certificate at Ex.P11. On perusal of the oral evidence of PW2 and medical evidence available on record, it is evident that the appellant has sustained 1) Left Knee complete ACL and PCL tear and Avulsion of poplitial and iliotibial track from tibial attachment and tear of lateral patellar lig and bicepsfemoris tendon 2) Fracture left scaphoid. Based on the aforesaid injuries, PW2 has assessed the disability of 10% to -8- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 left wrist joint and 30% to left knee joint. This Court on re- examining the medical evidence available on record is of the considered view that, the Tribunal has justified in assessing the disability of the appellant/injured at 14% which does not call for any modification. This Court is of the considered view that the Tribunal committed grave error in assessing the notional income of the appellant at Rs.7,000/- per month. Admittedly, the appellant has not produced any evidence to substantiate the income. In the absence of any such evidence, this Court assesses the income of the appellant at Rs.8,750/- placing its reliance on the chart prepared by the Karnataka State Legal Services Authority. Insofar as the contention that the Tribunal has not awarded any compensation under the head of loss of future prospects is concerned, the same is required to be rejected for the reason that the appellant has not placed any evidence before the Tribunal to come to a definite conclusion that due to the accident, the appellant has sustained such disability and he is unable to carry out any activity and his activity has been reduced substantially. In the absence of any such evidence, -9- NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 the appellant is not entitled to any compensation under the head of loss of future prospects. Thus, the appellant/claimant would be entitled to modified compensation on the head of loss of future earning capacity:
Rs. 8,750 x 12 x 15 x 14/100 = Rs.2,20,500/-
12. The Tribunal has committed grave error in not awarding any compensation under the head of future medical expenditure. Taking note of the injuries suffered by the appellant and also taking note of Ex.P9, the appellant is entitled to Rs.25,000/- under the head of future medical expenses. The Tribunal has committed error in awarding lower compensation under the heads of loss of income during laid-up period, loss of happiness and future amenities and incidental expenses. This Court taking note of the injuries suffered by the appellant and keeping in mind the oral evidence of PW2 and the medical evidence available on record is of the considered view that the appellant is entitled to Rs.26,250/- under the head of loss of income during the laid-up period as against Rs.3,500/-. The appellant is entitled
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NC: 2024:KHC-D:4953 MFA No. 100812 of 2021 to additional sum of Rs.25,000/- under the head of loss of happiness and future amenities. Similarly, additional Rs.10,000/- under the head of incidental expenses including attendant charges, food nourishment and transportation etc. The appellant/injured is entitled for interest at the rate of 6% per annum of the enhanced compensation.
Sl.No. Particulars Amount
1 Pain and suffering Rs. 50,000/-
2 Loss of income during laid up period Rs. 26,250/-
3 Loss of future income or earnings Rs.2,20,500/-
4 Loss of happiness and future amenities Rs. 35,000/-
5 Medical expenses Rs. 25,000/-
6 Incidental expenses Rs. 20,000/-
Total Rs.3,75,500/-
13. For the aforementioned reasons, I pass the
following:
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NC: 2024:KHC-D:4953
MFA No. 100812 of 2021
ORDER
a) Appeal is allowed in part.
b) The impugned judgment and award
passed by the Tribunal to an extent that the appellant/injured would be entitled to total compensation of Rs.3,75,500/- as against Rs.2,82,900/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.
d) On such deposit, the same shall be released in favour of the appellant/claimant.
e) Draw modified award accordingly.
Sd/-
JUDGE PMP List No.: 1 Sl No.: 36