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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2021 PRESENT THE HON’BLE MR.JUSTICE B.VEERAPPA AND THE HON’BLE MR.JUSTICE M.G.S. KAMAL
M.F.A.No.101438/2019 [MV]
BETWEEN:
HANUMANTHASA, S/O KUSUSA @ KUSHALA MAHARWADE, AGED:ABOUT 51 YEARS, OCC:ELECTRICAL WORK, R/O.PADUGUTTI COLONY, GANGAVATHI DISTRICT:KOPPAL-583227. ... APPELLANT
(BY SHRI Y.LAKSHMIKANT REDDY AND SMT.SOUBHAGYA, ADVS.)
AND:
SADDAM HUSSAIN S/O MAIBOOBSAB, AGED:ABOUT 19 YEARS, DRIVER OF THE TOYOTA ETIOS CAR BEARING REG NO.KA-36/N-5087, R/O.WARD NO.28, NEAR SHRI.MAREMMA TEMPLE, LAXMICAMP, GANGAVATHI, NOW AT GUNDAMMA CAMP, GANGAVATHI, KOPPAL DIST:583227.
A.SHIVASUNDAR S/O MURTHY NARAYANA , R/O.SRI.CHAITHANYA TECHNO SCHOOL IDSMT LAYOUT RAICHUR, OWNER OF THE TOYOTA ETIOS CAR BEARING REG NO.KA-36/N-5087.
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THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, SANMAN TOURIST HOME COMPLEX, CBS CIRCLE, KUSTAGI ROAD, DIST:KOPPAL-583227.
... RESPONDENTS
(BY SHRI C.V.ANGADI, ADV. FOR R3, NOTICE TO R1 AND R2 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 09.01.2019 PASSED IN MVC No.530/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GANGAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT The claimant has filed the present appeal for enhancement of compensation against the impugned judgment and award passed by the Senior Civil Judge and MACT, Gangavathi, dated 09.01.2019 passed in M.V.C.No.530/2016 awarding total compensation of Rs.2,55,344/- with interest at the rate of 6% p.a. from the date of petition till the date of realization.
It is the case of the appellant/claimant that on 10.08.2016 at about 9.30 a.m, when the claimant and his wife Smt.Mangalabai were travelling on a Bajaj
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M-80 motorcycle bearing No.KA-37/E-9973, they met with an accident near Munavalli Petrol Bunk, Koppal Road, Gangavathi, due to the rash and negligent driving of a Toyota Etios Car bearing registration No.KA-36/N- 5087, by its driver. On account of the said impact, claimant and his wife fell down on the tar road and sustained grievous injuries. Immediately after the accident, they were shifted to Chiniwalar Institute of Orthopedic and Trauma Hospital, Gangavathi, for treatment. The claimant was treated as an inpatient and was operated in the said hospital. He spent a sum of Rs.2,00,000/- towards his medical expenses. According to the claimant, prior to the accident, he was hale and healthy and he was doing electrical work and doing business under the name and style of Shri Shambu Switch Plates and Cutting Works and was earning Rs.27,000/- per month. Due to the said accident, the claimant has become disabled and is not in a position to work as before. Therefore, the claimant filed a claim petition under Section 166 of the Motor
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Vehicles Act seeking compensation of a sum of Rs.42,70,300/- for the injuries sustained by him in the said road traffic accident.
After issuance of notice, respondent No.1 remained unrepresented and he was placed exparte, respondent No.3 was deleted and respondents 2 and 4 appeared before the Court through their respective counsels and filed their separate written statements.
Respondent No.2 denied the entire claim petition averments and also denied the age, income and occupation of the claimant and further contended that the offending vehicle was covered under a valid insurance policy and respondent No.1/driver was holding valid driving license at the time of the accident. Hence, it was contended that respondent No.4/Insurance Company was liable to indemnify the compensation amount. Therefore, sought to dismiss the petition as against respondent No.2.
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Respondent No.4/Insurance Company denied the averments made in the claim petition. It has disputed the physical impairment of the claimant on account of the injuries sustained by him in the motor vehicle accident. Respondent No.4 also disputed the age, income of the claimant, reduction in his working capacity and the amount spent by him towards medical treatment. It was contended that respondent No.1 was not holding a valid driving licence at the time of the accident and therefore, there was violation of the terms and conditions of the insurance policy. It was further contended that the accident in question had not occurred due to the rash and negligent driving of the car by respondent No.1 but had occurred due to the rash and negligent riding of the motorcycle by the claimant himself. Therefore, sought to dismiss the petition as against respondent No.4.
On the basis of the pleadings of the parties, the Tribunal framed the following points for its consideration:
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“1. Whether the petitioner proves that on 10-8- 2016 at about 9-30 a.m., when petitioner and his wife were travelling on a Bajaj M-80 motor cycle bearing No.KA-37/E-9973, they met with an accident near Munavalli Petrol Bunk situated on Koppal-Gangavathi main road on account of actionable negligence on the part of Respondent No.1 being the driver of Toyota Etios Car bearing No.KA-36/N-5087? 2. Whether the petitioner proves that he was hospitalized for a period of 2 months and he spent Rs.2,00,000/- towards medical expenses? 3. Whether the petitioner proves that, at the time of accident, he was earning Rs.27,000/- per month? 4. Whether the respondent No.4 proves that the accident had occurred due to rash and negligent riding of motor cycle by petitioner himself? 5. Whether the respondent No.4 proves that respondent No.3 is not liable to pay compensation to the petitioner as there was a violation of the terms and conditions of the insurance policy? 6. Whether petitioner is entitled for relief’s as sought for in the petition? 7. What order or award? “
In order to prove the case of the claimant, claimant examined himself as PW-1, his wife as PW-2 and the doctor as PW-3 and got marked documents Ex.P.1 to Ex.P.93.
Respondent No.4/Insurance
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Company examined its officer as RW-1 and got marked document Ex.R.1. The second respondent did not choose to lead oral or documentary evidence.
The Tribunal on perusal of both oral and documentary evidence on record has recorded a finding that the claimant has proved that on 10.08.2016 at about 9.30 a.m., when he and his wife were travelling on the Babaj motorcycle, due to the rash and negligent driving on the part of the driver of the Toyota Etios car, they met with an accident and sustained grievous injuries and that the claimant was treated in the hospital. The Tribunal further held that the 4th respondent had failed to prove that the accident occurred due to the rash and negligent driving of the motorcycle by the claimant and the 4th respondent had not proved that it was not liable to pay the compensation amount. Accordingly, the Tribunal proceeded to award compensation of Rs.2,55,344/- with interest at the rate of 6% p.a., to the claimant payable by both respondents No.2 and 4. Hence, the present
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appeal is filed by the appellant/claimant seeking enhancement of compensation.
The Insurance Company has not preferred any appeal against the said finding of the Tribunal.
We have heard the learned counsel appearing for the parties to the lis.
Smt Soubhagya, learned counsel appearing for the appellant vehemently contended that the compensation of Rs.2,55,334/- awarded by the Tribunal, for the grievous injuries sustained by the claimant is on the lower side and requires to be modified. It is contended that the Tribunal erred in taking the income of the claimant at the rate of Rs.9,000/- p.m. ignoring the material documents at Ex.P.34 to Ex.P.39, i.e., the income tax returns produced by the claimant to prove that he was earning more than Rs.27,000/- p.m. It is further contended that though the doctor who was examined as PW-3 has stated on oath that the claimant had suffered disability
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to an extent of 45% to his spinal column and right lower limb and 15% to the whole body, the Tribunal erred in taking disability to an extent of 15% to the whole body, which is contrary to the material on record. She further contended that the compensation awarded by the Tribunal under other heads are very meagre and require further enhancement. Therefore, she sought to allow the appeal filed by the claimant.
Per contra, Shri C.V.Angadi, learned counsel appearing for respondent No.3/Insurance Company sought to justify the impugned judgment and award passed by the Tribunal. He contended that the fact of production of income tax returns as per Ex.P.34 to Ex.P.39 are not pleaded by the claimant nor stated in his evidence. Therefore, the Tribunal in the absence of any documentary evidence was justified in taking the income of the claimant at Rs.9,000/- p.m. He further contended that considering the evidence of PW-3, the doctor, the Tribunal was justified in taking the disability of the claimant at 15% and the compensation awarded
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in respect of other heads are just and proper. Therefore, he sought to dismiss the appeal filed by the claimant.
In view of the aforesaid rival contentions, the only point that arises for our consideration is:
“Whether the claimant has made out a case for enhancement of the compensation amount in the facts and circumstances of the case?”
We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
It is undisputed fact that the claimant sustained closed compression fracture of L1 vertebral body bone and head injuries in the accident that occurred on 10.08.2016 at 9.30 a.m. due to the rash and negligent driving of the driver of the Toyota Etios car bearing registration No.KA-36/N-5087. The same is evident from the material document at Ex.P.1 to Ex.P.7
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issued by the jurisdictional police during the course of the investigation. The adverse finding recorded by the Tribunal that the accident occurred due to the negligent driving of the offending vehicle is not challenged either by the Insurance Company or the owner of the vehicle. In order to prove his case, the claimant got examined himself as PW-1, his wife as PW-2 in respect of the claim made separately and the doctor as PW-3. In the course of chief examination, reiterating the averments made in the claim petition, the claimant has stated that he was earning Rs.27,000/- p.m. by doing the business of switch plates and cutting works and he has produced material documents as per Ex.P.34 to Ex.P.39, i.e., the income tax returns. In the cross-examination, the Insurance Company has only suggested that the said documents were created, but the same was denied by the claimant. The doctor who examined PW-1 has specifically stated on oath that the claimant had suffered 45% disability to his spinal column and right lower limb and 15% to the whole body as per the
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disability certificate issued at Ex.P.90. A suggestion was made to the doctor that the claimant had not suffered any disability but the same was denied by the doctor. The Tribunal has not considered the documents at Ex.P.34 to Ex.P.39 issued by the income tax authorities and wrongly held that the said fact was not pleaded.
The documents at Ex.P.34 to Ex.P.39 clearly indicate that the claimant had some profession in the name and style of Shri Shambu Switch Plates and Cutting Works. The Tribunal was not justified in taking the income at Rs.9,000/- p.m. considering the age and occupation of the claimant. Considering the specific evidence of PW-1 which was not disputed by the other side, the documents at Ex.P.34 to Ex.P.39, income tax returns clearly prove that he had the avocation of switch plates and cutting work business. The Tribunal ought to have taken the income of the claimant atleast at Rs.12,000/- p.m.
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In view of the categorical evidence of PW-3, the doctor who examined the claimant and has given the disability certificate as at Ex.P.90, clearly depicts that the claimant had suffered 45% disability to his spinal column and right lower limb and 15% to the whole body. The Tribunal ought to have taken atleast 20% disability taking into consideration the age and occupation of the claimant.
The accident and the negligence on the part of the offending vehicle is not in dispute. The jurisdictional police have registered a criminal case against the driver of the Toyota Etios vehicle. Therefore, the claimant is entitled to just and proper compensation. If we take the income of the claimant at Rs.12,000/- p.m., disability at 20% and by adopting the multiplier at 11, the loss of future income would come to Rs.3,16,800/-.
Considering the fact that the claimant had sustained grievous injuries, was admitted in the
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hospital and has underwent surgery, the award made by the Tribunal under other conventional heads require further enhancement. After reassessing the entire material on record, the claimant is entitled to the compensation as under: Sl. No. Heads Admount 1. Loss of future earnings Rs. 3,16,800/- 2. Pain and suffering Rs. 60,000/- 3. Loss of amenities Rs. 30,000/- 4. Loss of earning during treatment Rs. 27,000/- 5. Diet, nourishment, attendant charges and conveyance
Rs. 30,000/- 6. Medical reimbursement Rs. 20,144/-
Total Rs.4,83,944/-
In all, the claimant is entitled to total compensation of Rs.4,83,944/- less the compensation awarded by the Tribunal i.e., Rs.2,55,344/- which comes to Rs.2,28,600/-.
In view of the above, the appeal filed by the claimant is allowed in part. The impugned judgment and award dated 09.01.2019 passed by the Senior Civil Judge and MACT, Gangavathi, in M.V.C.No.530/2016 is
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hereby modified. The claimant is entitled to enhanced compensation of Rs.2,28,600/- with interest at the rate of 6% p.a. from the date of petition till the date of realization. Office to draw the decree accordingly.
Sd/- JUDGE
Sd/- JUDGE
Jm/-