Dismissed

He Managing Director v. Jagadish S/O. Siddaramayya Hiremath

Karnataka HC9 Mar 2020MFA/20020/2012

Case brief

AI extract

What is this about?

This High Court bench dismissed two miscellaneous appeals (one by an injured claimant seeking enhanced compensation and the other by the insurance corporation) filed against a Motor Accidents Claims Tribunal award of Rs. 3,80,000. The court held the award was just and reasonable, rejecting the claimant's argument regarding loss of a future contract.

What did the court decide?

Both appeals filed by the claimant and the insurance company were dismissed with the Tribunal's award confirmed.

He Managing Director Vs Jagadish S/O. Siddaramayya… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 09^TH DAY OF MARCH, 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR. JUSTICE M.I. ARUN

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M.F.A.NO.24493/2011 (MV) C/W M.F.A.NO.20020/2012 (MV)

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IN M.F.A.NO.24493/2011 (MV)

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BETWEEN:

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JAGADISH

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S/O SIDDARAMAYYA HIREMATH,

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AGE : 35 YEARS, OCC: ENGINEER & CONTRACTOR, R/O : H.NO.24, JAVALI PLOTS, SILVER TOWN, MAIN ROAD, GOKUL ROAD, HUBBALLI.

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... APPELLANT

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(BY SRI VINAY S.KOUJALAGI, ADVOCATE)

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AND:

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SHIVANAND S/O PARAPPA BAVIKATTI, AGE : 38 YEARS, OCC: DRIVER OF KSRTC, HUBBALLI RURAL I DEPOT, R/O: MORABA, TQ: NAVALAGUND, DIST: DHARWAD.

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THE MANAGING DIRECTOR, N.W.K.R.T.C.,BELGAUM DIVISION, BELGAUM.

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... RESPONDENTS

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(BY SRI C.B.PATIL, ADVOCATE FOR R.2) (NOTICE TO RESPONDENT NO.1 IS SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 22.06.2011 PASSED IN M.V.C.NO.239/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, AT HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.20020/2012 (MV)

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BETWEEN :

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THE MANAGING DIRECTOR, NWKRTC, BELGAUM DIVISION, BELGAUM-590016.

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REPRESENTED BY CHIEF LAW OFFICER, NWKRTC GOKUL ROAD, HUBLI-580030.

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… APPELLANT

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(BY SRI C.B.PATIL, ADVOCATE)

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AND :

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SRI JAGADISH S/O SIDDARAMAYYA HIREMATH, AGE : 36 YEARS, OCC: ENGINEER & CONTRACTOR, R/O. # 24, JAVALI PLOTS, SILVER TOWN, MAIN ROAD, GOKUL ROAD, HUBLI-580030.

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… RESPONDENT

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(BY SRI VINAY S.KOUJALAGI ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 22.06.2011 PASSED IN M.V.C.NO.239/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T. HUBLI, AWARDING COMPENSATION OF RS.3,80,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, B.A.PATIL, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these two appeals have been listed for admission, with the consent of learned counsel appearing for the parties, the same are taken up for final disposal.

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M.F.A.No.24493/2011 has been preferred by the appellant-claimant and M.F.A.No.20020/2012 preferred by the NWKRTCCorporation challenging the judgment and award passed by the Principal Senior Civil Judge and Additional M.A.C.T, Hubli (“Tribunal” for short) in MVC.NO.239/2009 dated 22.06.2011.

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We have heard the learned counsel appearing for the appellant and respondents in both the appeals.

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Genesis of the case of the petitionerclaimant is that, he was traveling in a NWKRTC

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bus bearing registration No.KA.22/F.1404 from Hubballi to Bengaluru on 25.11.2008 at about 5.00 a.m. the driver of the bus drove the same in rashly and negligently and dashed against a lorry parked on extreme left side of the road and as a result of which, the inmates of the said bus sustained grievous injuries including the appellant-claimant. For having sustained injuries he filed claim petition.

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The Tribunal after taking into consideration the evidence and material placed on record has awarded compensation in a sum of Rs.3,80,000/-. For the purpose of enhancement of the said compensation, the appellant-claimant is before this Court on the ground that the quantum of compensation awarded is on the lower side.

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It is the contention of the learned counsel for the appellant-claimant that, the claimant was a Civil Contractor and he has been

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allotted contract work worth Rs.2,03,94,591/-. The evidence of PW.2 goes to show that he could have earned 10% profit out of the said transaction. Because of the accidental injuries, he could not carry out the work and hence there is a loss of income. It is his further submission that the compensation warded by the Tribunal towards pain and suffering is also on the lower side. On these grounds he prayed to allow the appeal and to enhance the compensation.

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Learned counsel appearing on behalf of the Corporation submitted that the compensation awarded is on the higher side. The disability, which has been assessed by the doctor will not come in the way of working of the appellantclaimant as contractor. Under such circumstances, 10% disability which has been taken and awarded is on the higher side. It is his further submission that, even on the other heads the compensation awarded is on the higher side.

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On all these grounds, he prayed to allow the appeal.

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The accident in question is not in

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dispute so also the driver of the said bus was having valid and effective driving licence and the corporation is having its own insurance arrangement.

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As could be seen from the records, immediately after the accident, the claimant was taken treatment in Government Hospital, Tumkur

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and thereafter he came and got admitted in SDM Hospital, Dharwad for further treatment. He has sustained fracture of fragments of mandible and he went on for surgery on 28.11.2008 and reduction and fixation of bilateral

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Parasymphyseal was done and the reduction of fracture fragment which was followed by fixation of mini plate with screws. He got admitted in the said hospital on 26.11.2008 and discharged on 06.12.2008.

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It is the contention of the learned

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counsel for the petitioner-claimant that, the appellant-claimant was allotted the work to build 100 houses under the Scheme of Slum Clearance Board at-least he could have earned 10% profit out of it. In order to substantiate the said contention, he relied upon the evidence of PW.2 and PW.4 and he has also relied upon Exs.P.19 and P.21.

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It is his further submission that, because of the accidental injuries, he could not continue the work and as such he has sustained huge loss. Hence, the compensation warded is on the lower side.

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On careful consideration of the

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evidence produced by the appellant-claimant, it discloses the fact that, if he could have completed the said civil contract work, then he could have earned a minimum profit of 10% on the total cost allotted in the said contract.

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PW.2 is the Assistant Engineer. He has

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deposed that the appellant-claimant is a Civil Contractor and he was on the panel of contractor for Karnataka Slum Clearance Board and the Board has entrusted the work to construct 100 house in Hubballi to the appellant-claimant by its order dated 29.10.2008. The petitioner-claimant has also produced a letter issued by the Karnataka Slum Clearance Board dated 03.11.2008. In the said letter addressed to the claimant, indicates that in a meeting held on 28.10.2008 they have approved the work to be given to the claimant and it has been stated in the said letter that on or before 11.11.2008 he has to appear before the Board and he has to sign the agreement of the said construction work. 14. It is an admitted fact that, the alleged accident has taken place on 25.11.2008 at about 5.00 a.m. If really the work has been entrusted to him by meeting dated 28.10.2008, the

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intimation was given on 03.11.2008 it indicates that he has to come before the Board and execute the agreement on or before 11.11.2008. If all these records have been seen together, he has not gone on 11.11.2008 to get the agreement entered into. The letter dated 12.12.2008, which has been given at the request of the claimant, as he was not keeping well, the said contract has been cancelled. Nothing was prevented him to execute the work which has been allotted. It appears that, the claimant has not gone on the date fixed and as such the said contract has not been given to the claimant.

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The oral evidence of PW.2, the

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Assistant Engineer is not going to substantiate the document which has been produced. So in that light basing upon his evidence we will not accept the contention taken up by the learned counsel appearing for the appellant-claimant to the effect that, because of the injuries sustained,

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he could not go to the Slum Clearance Board and he could not sign the said contract work and as such he has not been entrusted is far from truth. It is a remote damage which is not a cause to the accident which is intended to be claimed. As such same is not acceptable.

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Be that as it may. Even as could be seen from evidence of PW.3-Doctor, who is the treated doctor, he has not spoken to anything with regard to the disability said to have been sustained by the appellant-claimant.

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PW.4 is the doctor; he has assessed the disability to an extent of 25%. But the evidence of PW.4 indicates that, how he has gone to assessed 25% disability has not been specifically stated. Even in his evidence and the evidence of PW.2, if it is looked into because of the injuries he had developed numbness of lower teeth and lip and he has also sustained some injuries. How the said injury affected work of the claimant has

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not been stated. The assessment of disability to

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the extent of 25% is baseless. The same cannot be acceptable in law.

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The Tribunal after taking into

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consideration, the income tax returns, so which have been filed by the appellant-claimant for the year 2007-08 and 2009-2010 has taken the loss of income from contract work at the rate of Rs.2,50,000/- and has awarded the compensation under the following heads as mentioned therein.

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1. Towards pain and agony.	Rs. 20,000/-
2. Towards medical expenses	Rs. 40,000/-
3. Towards loss of amenities	Rs. 30,000/-
4. Towards loss of income from Construction contract work.	Rs.2,50,000/-
5. Loss of income during treatment and rest period	Rs. 40,000/-
TOTAL	Rs.3,80,000/-

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Though it is the contention of the learned counsel for the appellant-complainant that because of the accidental injuries, he could

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not get the contract work and thereby he has sustained loss of income. But as stated above he could have gone and sign the agreement on or before 11.11.2008 but subsequently, the accident has been taken place on 25.11.2008. There is no relationship whatsoever to the submission made by the learned counsel for the appellant and the records produced in this behalf.

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Be that as it may. We are of the considered opinion that the compensation for the damages, which is claimed by the claimant, it is a remote damages. If he could have worked the said work, he could have got 10% profit and on that count the compensation cannot be granted. However, the claimant has suffered with injuries to his jaw portion, in that light he is entitled for compensation on other heads.

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On perusal of the records, we came to know that, in what manner the injury so which has been sustained by the claimant is coming in

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the way of discharging his future duties, so as to

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assessed the damages for future loss of income.

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Admittedly, when he is a Civil

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Contractor and the injuries sustained is to the jaw partition, the doctors have deposed that he cannot bite the hard food and that there will be pain. In that light, if the evidence produced is appraised, the question of assessing any disability insofar as the future income is concerned. But on going through the injuries suffered and the treatment which has been taken, the compensation which has been awarded under the head of pain and agony appears to be on the lower side.

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However, by taking into consideration the compensation which has been awarded towards loss of income from the contract work though he is not entitled, the tribunal has awarded Rs.2,50,000/- and on other heads also

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the said compensation which has been awarded appears to be on the higher side.

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Taking into consideration the said aspect, we are of the considered opinion that whatever the compensation which has been awarded by the Tribunal though not on specific heads, appears to be just and reasonable and the appellants have not made out any good grounds, so as to interfere with the judgment of the Tribunal. The judgment and award passed by the Tribunal deserves to be confirmed.

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Hence, both the appeals filed by the claimant and insurance company are hereby dismissed .

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The amount in deposit made by the appellant-Insurance Company is directed to be transmitted to the Tribunal immediately.

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Registry is directed to send back the Trial Court Records forthwith.

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Deposit and disbursement shall be as per

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the terms of award of the Tribunal.

Sd/-

JUDGE

Sd/JUDGE

EM/-

He Managing Director v. Jagadish S/O. Siddaramayya Hiremath

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He Managing Director v. Jagadish S/O. Siddaramayya Hiremath

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