MALLANGOUDA S/O LATE JAGADEVAPPA PATIL vs. DILEEP KUMAR S/O RAJARAM BHOSALE AND ANR

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 17TH DAY OF MARCH 2022 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI M. F. A. NO.200461 OF 2021 (MV) BETWEEN: MALLANGOUDA, S/O LATE JAGADEVAPPA PATIL, AGED ABOUT 43 YEARS, OCC: LEGAL PRACTITIONER, R/O. BANASHANKARI NAGAR, OLD JEWARGI ROAD, KALABURAGI. … APPELLANT (BY SMT.GEETHA SAJJANSHETTY, ADVOCATE) AND: 1. DILEEP KUMAR, S/O RAJARAM BHOSALE, AGED ABOUT 60 YEARS, OCC: DRIVER, R/O. PLOT NO.52, CIB COLONY, BEHIND CENTRAL BUS STAND, KALABURAGI - 585 103. (OWNER-CUM-DRIVER). 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO., DR. JAWALI COMPLEX,

2 SUPER MARKET, KALABURAGI - 585 103. …RESPONDENTS (BY SRI. SANJAY M JOSHI, ADVOCATE FOR R-2 NOTICE TO R-1 D/W V/O DTD:17.08.2021) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT BY THE ADVOCATE FOR APPELLANT, PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 25.07.2019 PASSED BY THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, KALABURAGI IN FILE BEARING MVC NO.621/2017 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANT. THIS MFA 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 petitioner being aggrieved by the judgment and award dated 25.07.2019 passed in MVC No.621/2017 by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Kalaburagi.

4 petitioner is paying the income tax on very year. After the accident, petitioner is unable to do day to day work in his legal profession. Hence, the petitioner filed a petition under Section 166 of the M.V.Act, seeking for enhancement of compensation on the account of injuries sustained in the road traffic accident. 4. The respondent No.1 appeared through his counsel and filed written statement denying the averments made in the claim petition and also contended that as on the date of accident the policy and the driving license are valid. Respondent No.2 appeared through its counsel and filed written statement denying the averments made in the claim petition and also denied the involvement of Auto Rickshaw in the accident and contended that the accident was occurred due to rash and negligent riding of the rider of motorcycle - petitioner and there is no

5 negligence on the part of respondent No.1. Hence, prayed to dismiss the petition. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues. The petitioner examined himself as PW-1 and Doctor was examined as PW-2 and got marked the documents as Ex.P1 to Ex.P15. On behalf of the respondents, respondents have not adduced any oral or documentary evidence. Respondent No.2 - Insurance Company has got marked Insurance Policy as Ex.R1 with consent. The Tribunal after recording the evidence and considering the material on record held that petitioner has proved that on 31.01.2017 he met with an accident and sustained grievous injuries due rash and negligent driving of the driver of Auto Rickshaw bearing registration No.KA-32/B-4323 and further, held that petitioner is entitled for compensation and consequently allowed the petition in part and awarded

6 a compensation of Rs.3,93,943/- with with interest at the rate of 6% p.a. and directed the respondent No.2 to deposit the compensation amount along with interest. Being dissatisfied with the compensation awarded by the Tribunal, the petitioner has filed the present appeal seeking for enhancement of compensation amount. 6. Heard learned counsel for the petitioner and learned counsel for respondent No.2. 7. The learned counsel for the petitioner has contended that petitioner is an Advocate and earning monthly income of Rs.45,000/- to Rs.50,000/-. In support of his income, petitioner has produced the copy of I.T. returns marked as Ex.P14 and Ex.P15. He further submits that the Tribunal did not consider Ex.P14 and Ex.P15 and taken income of the petitioner at Rs.10,000/- per month, which is contrary to Ex.P14

7 and Ex.P15. He further submits that the Tribunal has also considered the annual income on the lower side. Hence, on these grounds, he prays to allow the appeal. 8. Per contra, learned counsel for respondent No.2 -Insurance Company supports the impugned judgment and award passed by the Tribunal. He further submits that the compensation awarded by the Tribunal is just and proper and does not call for interference. Hence, sought for dismissal of the appeal. 9. Perused the records and considered the submissions made by learned counsel for the parties. 10. The point that arise for consideration is with regard to quantum of compensation.

8 11. It is not in dispute that the petitioner met with an accident and sustained permanent disability. In order to prove that the accident was occurred due to rash and negligent driving of the driver of the Auto Rickshaw, the petitioner has produced copy of FIR and charge-sheet marked as Ex.P1 and Ex.P3. Ex.P3 discloses that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. Insofar as quantum of compensation is concerned, petitioner has taken a contention in the claim petition that the petitioner was legal practitioner and was getting income of Rs.45,000/- to Rs.50,000/- per month. In support of his income, he has produced Ex.P14 and Ex.P15 copy of I.T returns which was filed on 31.12.2015 prior to the accident. As per Ex.P14 the annual total income of the petitioner is show as Rs.3,63,540/. In view of the admission of the petitioner that he has continued in his profession, it is

9 just and proper to hold the income of the petitioner at Rs.20,000/- per month. So annual income will be Rs.2,40,000/-. In Ex.P6 wound certificate age of the petitioner is shown as 35 years and in order to establish that the petitioner has suffered permanent disability the petitioner has got examined the Doctor as PW-2 on examination of petitioner has issued disability certificate, which is marked as Ex.P9. Further, PW-2 has stated that petitioner has suffered permanent disability of 40% to the whole body, wherein the Tribunal has taken disability of the petitioner at 14% to the whole body and permanent disability assessed by the Tribunal is on the lower side. Thus, this Court reassess the physically disabilities at 15% to the whole body. The petitioner was aged about 35 years as on the date of accident, the multiplier apply to his age group is 15. Considering the injuries and evidence of PW-2, this

10 Court, reassess the compensation by the following course. i. Towards pain and suffering Rs.50,000/- as awarded by the Tribunal is maintained. ii. Towards loss of future income will be 20,000/- X 12 X 15 X 15/100 = Rs.5,40,000/-. iii. Towards attendant, food and conveyance charges Rs.20,000/- as awarded by the Tribunal is maintained. iv. Towards medical expenses Rs.46,943/- as awarded by the Tribunal is maintained. v. Towards loss of income during treatment period Rs.15,000/- as awarded by the Tribunal is maintained. vi. Towards loss of amenities Rs.10,000/- as awarded by the Tribunal is maintained. Thus, the petitioner is entitled for total compensation of Rs.6,81,943/- as against

11 Rs.3,93,943. The petitioner is entitled for enhanced compensation of Rs.2,88,000/-. 12. In view of the above discussion, the appeal is allowed in part. Judgment and award passed by the Tribunal dated 25.07.2019, is modified.

The petitioner is entitled for enhanced compensation of Rs.2,88,000/- along with interest at the rate of 6% p.a. from the date of filing of the petition till the date of realization. Respondent No.2 - Insurance Company is directed to deposit the enhanced compensation amount along with interest, within a period of eight weeks from the date of receipt of copy of this judgment. SD/- JUDGE GRD