Partly allowed

Joraram S/O. Hakmaji Prajapath v. the Divisional Controller

Karnataka HC9 Oct 2019MFA.CROB/865/2011

Case brief

AI extract

What is this about?

High Court of Karnataka allowed the claimant's appeal for enhanced compensation in a motor accident case while dismissing the insurance company's appeal regarding liability. The court reassessed damages based on evidence and clarified that a clerical error in the vehicle number did not absolve the insurance company.

What did the court decide?

Insurance company's appeal dismissed; Claimant's cross-appeal allowed in part with compensation enhanced to Rs. 3,98,500/- plus interest.

Joraram S/O. Hakmaji Prajapath Vs the Divisional… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF OCTOBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MISCELLANEOUS FIRST APPEAL NO.22756 OF 2011 C/W MISCELLANEOUS FIRST APPEAL CROSS OBJECTION 865 OF 2011 (MV)

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IN MFA NO.22756 OF 2011 BETWEEN:

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THE DIVISIONAL CONTROLLER NWKRTC BELAGAVI DIVISION, BELAGAVI, REP. BY CHIEF LAW OFFICER, NWKRTC CENTRAL OFFICE, HUBBALLI (By Sri. RAVI V. HOSAMANI, ADVOCATE) AND:

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... APPELLANT

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JORARAM S/O HAKMAJI PRAJAPATH AGE: 23 YEARS, OCC: NIL, R/O JAI BHAVANI COMPLEX, V.R. DESHPANDE ROAD, HALIYAL, NOW AT SHIVAJI NAGAR, BELGAUM.

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... RESPONDENT

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(By Sri.K.H.BAGI, ADVOCATE )

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 15.3.2011 PASSED IN MVC NO.2303 OF 2009 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT III AND ADDITIONAL MACT BELGAUM AT BELGAUM AWARDING THE

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COMPENSATION OF RS.2,85,700/- WITH INTEREST AT THE RATE OF 8% PA FROM THE DATE OF PETITION TILL ITS REALIZATION.

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In MFA.CROB NO.865 OF 2011 BETWEEN:

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JORARAM S/O. HAKMAJI PRAJAPATH AGE: 23 YEARS, OCC: NIL R/O. JAI BHAVANI COMPLEX, V.R. DESPANDE ROAD, HALIYAL, NOW AT SHIVAJI NAGAR, BELGAUM. (By Sri. K.H. BAGI, ADVOCATE) AND:

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... CROSS OBJECTOR

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THE DIVISIONAL CONTROLLER, NWKRTC, BELGAUM DIVISION, BELGAUM.

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... RESPONDENT

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(By Sri. RAVI V. HOSAMANI, ADVOCATE )

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWRD DATED 15.3.2011, PASSED IN MVC NO.2303 OF 2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT III AND MEMBER ADDL. MACT BELGAUM PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA AND MFA CROSS OBJECTION COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal and cross objection are filed by the insurance company as well as the claimant challenging the judgment and award dated 15.03.2011 passed by the Fast Track Court-III and Additional MACT, Belgaum, in MVC No.2303 of 2009 whereby the Tribunal has awarded compensation of Rs.2,85,700/- with 8% interest.

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Brief facts of the case are that on 21.07.2009 at about 11.30 hours, the claimant and one Mr. Rajesh Basavanneppa Olekar were proceeding on their motorcycle bearing registration No.KA.31/L-7269 from Haliyal to Hubli. The claimant was a pillion rider and Rajesh Basavanneppa was riding the motorcycle in a moderate speed with all care and caution. When they came near Amblikoppa cross, a bus bearing registration No. KA-25/F-2624 came from opposite direction in a rash and negligent manner and dashed against the motorcycle. Due to the impact, the claimant sustained grievous injuries all over his body and the rider of the

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motorcycle Rajesh Basavanneppa Olekar died on the spot. After the accident, the claimant was shifted to District Hospital, Belgaum, wherein he took first aid treatment. Since the injuries suffered by the claimant were grievous in nature, he was shifted to SDM hospital, Dharwad, wherein he was admitted as an inpatient from 21.07.2009 to 24.08.2009. He has also undergone operation. After recovering from the injuries, the claimant has filed claim petition before the MACT, Belgaum in MVC No.2303 2009 seeking compensation.

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To Establish his claim, the claimant himself examined as PW-1 and also examined the doctor as PW2 and got marked sixteen documents as Exs.P-1 to P-16. On behalf of the respondent, the insurance company has not examined any witness except marking policy of insurance as Ex.R-1.

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On appreciation of the oral and documentary evidence, the Tribunal has awarded compensation of Rs.2,85,700/- with interest at 8% per annum. Being

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aggrieved by the same, the claimant has filed MFA Cross Objection No.865 of 2011 and the corporation has filed MFA No.22756 of 2011 challenging the fastening of liability.

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Sri. K.H. Bagi, learned counsel for the claimant contended that the claimant, at the time of the accident, was running a mobile shop and was earning Rs.10,000/per month. The Tribunal while assessing the income of the claimant has taken Rs.3,000/- per month and the same is on the lower side. He has contended that due to the accident, the claimant has suffered 45% disability and he has examined the Doctor as PW-2. The Tribunal was not justified in taking the whole body disability at 15%. He further contended that though the claimant was admitted as an inpatient for more than 2 months, the Tribunal has granted only Rs.10,000/- under the category of nursing, attendant charges and nourishment and conveyance and the same is on the lower side. He further contended that due to the accident, the claimant

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had suffered 45% disability and he has undergone surgery but the Tribunal has granted only Rs.20,000/towards loss of amenities and future unhappiness and the same is on the lower side and hence sought for enhancement of compensation under the aforesaid categories. Hence, the counsel sought for allowing the cross objection filed by the claimant.

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Per contra, Sri. Ravi V. Hosamani, learned counsel appearing for the corporation submitted that in the compliant lodged by the claimant and also in the FIR, the offending vehicle number is mentioned as KA.25/F.2426 and the Tribunal has not considered this aspect of the matter and has wrongly fastened the liability on the corporation holding that the vehicle involved in the accident is KA.25/F.2624 which is contrary to the material available on record. He further contended that the Tribunal after taking into consideration all the aspects has rightly awarded the compensation on all the heads. Hence, he sought for

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allowing the appeal filed by the corporation and to dismissal the cross objection filed by the claimant.

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Heard the learned counsel for the parties.

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It is not in dispute that the claimant has suffered injuries due to the accident that occurred on 21.07.2009 due to rash and negligent driving by the driver of the KSRTC bus bearing registration No.KA.25/F 2624, even though at the time of lodging the complaint, by the oversight, they have mentioned the number of the bus as KA.25/F.2426. Subsequently, during investigation, as per Ex.P-3-panchanama, MVI report-Ex.P-4 and Ex.P5 charge sheet, it is very clear that the vehicle which is involved in the accident is the bus bearing registration No. KA.25/F.2624. During the pendency of the petition before the Tribunal, the claimant has filed an application for amendment of the claim petition. After considering, the Tribunal by order dated 02.08.2010 has allowed the application and permitted the claimant to amendment the registration number of bus as KA 25/F. 2624 instead of

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KA.25/F.2426. This has not been challenged by the Corporation. It is very clear from the document which is produced by the claimant that the vehicle involved in the accident is KA.25/F.2624. The Tribunal has rightly held that NWKRTC bus bearing registration No. KA.25/F.2624 is involved in the accident. Hence, the appeal filed by the insurance company in MFA No.22756 of 2011 is dismissed.

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MFA.Crob.No.865/2011:- Claimant has

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suffered the grievous injury due to the accident occurred on 21.07.2009, due to rash and negligent driving of the driver bus bearing No.KA.25 2624. The claimant has suffered fracture of mandible right side with compound supra condylar, tibia and fibula right side, right feamur, right patella and other grievous injuries all over the body and he was treated as inpatient in SDM Hospital, Dharwad from 21.07.2009 to 24.08.2009. The tribunal has granted only Rs.10,000/- compensation under the category of Nursing, attendant charges, extra

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nourishment and conveyance, the same has been enhanced to Rs.25,000/-. The contention of the claimant is that at the time of the accident, the claimant was earning Rs.10,000/- per month and he was running a mobile shop, to establish the claim, he has not produced any document to show that he was earning Rs.10,000/per month. Under this circumstance, by considering the age, occupation of the claimant, further guidelines provided for settlement of cases before the Lok Adalath and also taking into consideration the year of accident i.e. 2009, it is just and necessary to consider the income of the claimant at Rs.5,000/- per month for the purpose of awarding compensation.

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The tribunal on the basis of the evidence of PW.2-Dr.S.D.Patil, who is treated Doctor, has considered permanent disability of the claimant at 45%. Accordingly, the tribunal has rightly taken disability of whole body at 15%. Accordingly, loss of future earnings comes to Rs.1,62,000/- (5,000x18x12x15/100).

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Tribunal is not justified in granting

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compensation under the category of loss of amenities and future unhappiness as PW.2-Dr.S.D.Patil, who treated the claimant has deposed specifically in his evidence that the claimant cannot sit squatting, stand for long time, cannot walk, run for long distance and cannot walk without the help of stick. Under this circumstance, it is just and necessary to award compensation of Rs.50,000/- under the category of loss of amenities and future unhappiness. In view of the enhancement of monthly income of the claimant from Rs.3,000/- per month to Rs.5,000/- per month, loss of earnings during the treatment period has to be enhanced from Rs.12,000/- to Rs.15,000/-. Accordingly, cross appeal filed by the claimant is allowed in part. Thus, on reassessment of the compensation, the following just compensation is awarded to the claimant.

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1	Injury, pain and agony	Rs.50,000/-
2	Medical expenses	Rs.96,500/-
3	Nursing, attendant charges,	Rs.25,000/-
	extra nourishment and conveyance
4	Loss of future earnings	Rs.1,62,000/- (5,000x18x12x15/100)
5	Loss of earnings during treatment	Rs.15,000/-
6	Loss of amenities and future unhappiness	Rs.50,000/-
	Total	Rs.3,98,500/-

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Therefore, the claimant is entitled for total compensation of Rs.3,98,500/as against the compensation of Rs.2,85,700/- awarded by the tribunal.

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In the result, this Court proceed to pass the following:

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ORDER

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The appeal filed by the insurer is dismissed.

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The cross appeal filed by the claimant is allowed in

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part.

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Claimant is awarded compensation of Rs.3,98,500/with interest at 8% from the date of petition till its realization. Apportionment, deposit and disbursement of the compensation amount shall be made in terms of the judgment and award of the Tribunal.

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The amount of compensation deposited by the insurer shall be transmitted to the concern tribunal forthwith.

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Sd/JUDGE Kmv from para Nos.1-8 Vb from para Nos.9-11

Joraram S/O. Hakmaji Prajapath v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

Joraram S/O. Hakmaji Prajapath v. the Divisional Controller

Case brief

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What did the court decide?

What the court decided

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