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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 21ST DAY OF NOVEMBER, 2023 BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO. 200057 OF 2021 (MV-I)
BETWEEN:
SRI AYYAPPA REDDY DATTATREYA REDDY AGE: 48 YEARS, OCC: TUTION TEACHER AND PROPRIETOR OF M/S GURUDATTA ENTERPRISES, R/O NO.236, 2ND MAIN, 4TH CROSS, BDS NAGAR, K. NARAYANAPURA, BANGALORE - 560007. NOW AT H.NO.1-4-155/86, JYOTI COLONY, MANTRALAYAM ROAD, RAICHUR. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
SHIVAKUMAR B. KAMBALI S/O BASAPPA, AGE: 27 YEARS, OCC: DRIVER, R/O SHIRAGUPPI, TQ. AND DIST. BAGALKOT 587111, AND ALSO R/O NO.535, 2ND CROSS, 1ST MAIN ROAD,
Digitally signed by LUCYGRACE Location: HIGH COURT OF KARNATAKA
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
OPP BDA COMPLEX, 2ND STAGE NAGARBHAVI, BANGALORE- 560072.
SHIVAPPA Y TALWAR S/O YAMANAPPA, AGE: MAJOR, OCC: OWNER OF CAR, R/O: R/O NO.535, 2ND CROSS, 1ST MAIN ROAD, OPP. BDA COMPLEX, 2ND STAGE NAGARBHAVI, BANGALORE- 560072.
THE ORIENTAL INSURANCE COMPANY LTD., VP-IV 1ST 'A' CROSS, POLICE STATION ROAD, 1ST STAGE, PEENYA INDUSTRIAL ESTATE, BANGALORE- 560058, THROUGH ITS LOCAL BRANCH OFFICE, THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO LTD., 2ND FLOOR, K.K. COMPLEX, CITY TALKIES ROAD, RAICHUR- 584101. …RESPONDENTS
(BY SRI J. AUGUSTIN, ADVOCATE FOR R3 R1 & R2 NOTICE DISPENSED WITH V/O DATED 02.02.2021)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT PAYABLE TO THE APPELLANT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 11.03.2020 PASSED BY THE COURT OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL AT RAICHUR IN MVC NO.400/2018.
THIS APPEAL, COMING ON FOR ADMISSTION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
JUDGMENT
The injured-claimant being aggrieved by the judgment and award dated 11.03.2020 passed in MVC No.400/2018 by the II Additional District and Sessions Judge and MACT, Raichur, ('Tribunal'), has filed this appeal, seeking enhancement of compensation.
The appellant filed claim petition before the Tribunal seeking compensation of Rs.48,00,000/- on account of injuries sustained by him in an admitted road traffic accident that occurred due to rash and negligent driving by driver of Etios Live Car bearing registration No.KA-03/AD-5582 owned by respondent No.2 insured with the respondent No.3 – Insurance Company, when the appellant was proceeding on his motorcycle bearing registration No.KA-50/Q-4916.
The Tribunal after appreciation of material evidence has awarded compensation of Rs.7,26,900/- with interest at 8% from the date of petition till its realization. Being aggrieved by
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
the same, the claimant is before this Court for enhancement of compensation.
The accident resulting in the injuries to the claimant is not in dispute. The only contention raised is with regard to quantum of compensation, contending the assessment of income by the Tribunal, assessment of disability suffered by the Appellant and grant of compensation under other heads are on lower side.
Sri Sanganagouda V. Biradar, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that the appellant who was a qualified Engineer was carrying on business of conducting tutorials under the name and style of "M/s. Gurudatta Enterprises", and was also having income from agricultural activities. He submits that appellant had been filing income tax returns regularly and accordingly he has produced Ex.P13 – statement prepared by Charted Accountant, Ex.P14 – Copies of IT Returns for the
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
assessment years 2016-2017, 2017-2018 and 2018-2019 respectively, and Ex.P15 Copies of R.O.Rs. He submits that the gross income shown for the year 2016-2017 was Rs.4,29,500/-, gross income shown for the year 2018- 2019 was Rs.5,82,000/- and gross income shown for the year 2019-2020 was Rs.3,82,635/-. He submits that the Tribunal without taking note of these documents into consideration has arrived on its own assessment of income of the appellant at Rs.25,000/- per month. Thus, he submits that the Tribunal was not justified in reducing the income of the appellant to just Rs.25,000/- per month.
As regards the disability is concerned, learned counsel for appellant submits that the treated Doctor PW2 has assessed the disability of the appellant at 45% to left lower limb and 15% to the whole body, but Tribunal has taken it at 7% to the whole body. He further submits the grant of compensation on the other heads is on lower side, hence, seeks for enhancement.
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
Sri J. Augustin, learned counsel for Insurance Company justifying the judgment and award passed by the Tribunal submits that the injuries caused to the claimant in the accident have not resulted in reduction of his income, therefore, disability assessed by the Tribunal at 7% is justified.
As regards income of the claimant is concerned, learned counsel submits except furnishing Exs.P13, P14 and P15 no other document is produced with regard to claim of the claimant that he was earning income as shown in the income tax returns. Hence, he submits that order does not warrant any interference.
Heard the learned counsel for the parties and perused the records.
The claimant in justification of the fact with regard to his income has produced at Ex.P14 being income tax returns for the year 2016-2017, 2017-2018 and 2018-
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2019. Even if average of the income mentioned in the income tax returns is taken into consideration, the income of the claimant would be Rs.4,30,000/- per annum.
In the facts and circumstances of the case this Court is of the considered view that it would be just and proper to take Rs.30,000/- per month instead of Rs.25,000/- taken by the Tribunal.
As per Ex.P3 - Wound Certificate, appellant has suffered the fracture of tibia. The treated Doctor PW2 in his evidence has stated that the claimant has suffered disability at 45% to the left lower limb and 15% to the whole body. The Tribunal has taken the same at 7% to the whole body. Since, the treated Doctor has assessed disability at 45% to the particular limb and 15% to the whole body there is no reason to disbelieve the same, therefore, disability is reassessed at 15%. Considering the age of the claimant the multiplier applicable is '13'. Thus, appellant would be entitled for Rs.7,02,000/-
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
(Rs.30,000/- x 12 x 13 x 15%) towards loss of future earning instead of Rs.2,73,000/- assessed by the Tribunal. The Tribunal has awarded Rs.30,000/- towards pain and agony, the same is enhanced to Rs.50,000/- by adding Rs.20,000/-. The medical expenses of Rs.3,58,933/- and future medical expenses of Rs.15,000/- awarded by the Tribunal are maintained as it is. The Tribunal has awarded Rs.10,000/- towards food, nourishment and conveyance, the same is enhanced to Rs.25,000/- by adding Rs.15,000/-. The Tribunal has awarded Rs.5,000/- towards attendant charges, the same is enhanced to Rs.25,000/- by adding Rs.20,000/-. The Tribunal has awarded Rs.25,000/- towards loss of income during treatment period. Considering the nature of injuries suffered by the claimant, the claimant must have advised rest at least for 3 months, hence, he is entitled for Rs.90,000/- instead of Rs.25,000/- under the said head awarded by the Tribunal. The Tribunal has awarded Rs.10,000/- towards loss of amenities the same is enhanced to Rs.50,000/- by adding Rs.40,000/-.
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NC: 2023:KHC-K:8736 MFA No. 200057 of 2021
The impugned judgment and award passed by the Tribunal is modified accordingly. The appellant is entitled for Rs.13,15,933/- with 6% interest per annum from the date of petition till realization instead of Rs.7,26,933/- with 8% interest per annum awarded by the Tribunal.
The above compensation amount shall be deposited by the Insurance Company within 6 [six] weeks time from the date of receipt of a copy of this judgment. The deposit and withdrawal of the enhanced amount would be as per the order of the Tribunal.
Sd/- JUDGE
SBS List No.: 1 Sl No.: 18