Dismissed

Ambaresh S/O Eranna v. Shivu @ Shivangouda

Karnataka HC13 Jul 2022MFA/21060/2010

Case brief

AI extract

What is this about?

Appeal by a motor accident victim challenging compensation awarded by MACT. The Single Judge upheld the Tribunal's assessment of 12% disability and quantum of compensation, dismissing the claim for enhancement based on evidence showing no significant loss of income and reasonable award components.

What did the court decide?

Appeal dismissed; compensation awarded by MACT maintained without enhancement.

Ambaresh S/O Eranna Vs Shivu @ Shivangouda — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 21060 of 2010

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE P.KRISHNA BHAT MISCELLANEOUS FIRST APPEAL NO. 21060 OF 2010 (MV-)

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BETWEEN:

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AMBARESH S/O ERANNA AGE 19 YEARS, OCC:NIL, R/O VESCO FARM HOUSE, KRISHNANAGAR, SANDUR TQ, BELARY DIST.

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…APPELLANT

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(BY SRI. S. M. KALWAD, ADVOCATE)

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AND:

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SHIVU @ SHIVANGOUDA S/O CHINNAPURAGOUDA, AGE 32 YEARS, OCC:DRIVER OF TRAX BEARING NO.KA-35/7984, R/O KALINGERI VILLAGE, SANDUR TQ, BELLARY DIST.

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Digitally signed by JAGADISH T R Location: HIGH COURT OF KARNATAKA, DHARWAD Date: 2022.07.14 10:16:56 +0530

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BASAVARAJ NINGARAJ S/O CHANNABASAPPA, AGE MAJOR OCC:OWNER OF TRAX BEARING NO.KA-35-7984, R/O KALINGERI VILAGE, SANDUR TQ, BELLARY DIST.

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BAJAJ ALLIANZ GENERAL INSURANCE CO LTD., NEAR DURGAMMA TEMPLE, OPP TO THE ORIENTAL INSURANCE CO LTD., BELLARY REP BY ITS MANAGER

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…RESPONDENTS

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(BY SRI RAVINDRA R. MANE, ADVOCATE FOR R3, R1 & R2 SERVED)

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MFA No. 21060 of 2010

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MFA FILED U/S.173(1) OF THE M.V.ACT, AGAINST THE JUDGEMENT AND AWARD DATED: 16-01-2010, PASSED IN MVC NO.64/2009, ON THE FILE OF CIVIL JUDGE (SR.DN) CUM MEMBER, MACT-VI, KUDLIGI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This is an appeal at the instance of the claimant

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calling in question the correctness of the judgment and award dated 16.01.2010 in MVC No.64/2009 passed by the learned Civil Judge (Sr.Dn) cum Member, VI-MACT, Kudligi (for short ‘MACT’).

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Brief facts are that on 30.06.2008 at about 7.30 a.m. while claimant was proceeding on TVS champ motorcycle near Maremma temple, Toranagallu-Sandur road, Krishnanagar, the offending Trax bearing registration No.KA-35/7984 came from opposite direction driven by its driver in a rash and negligent manner and in high speed and dashed against the motorcycle of the petitioner and

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MFA No. 21060 of 2010

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on account of the same, he fell down and suffered fracture

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of both bones of right leg and other injuries.

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The claim petition was resisted by all the respondents by filing their separate statement of objections.

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During trial, claimant was examined himself as PW1. A doctor was examined as PW2. Ex.P.1 to P12 were marked. Respondent-Insurance Company examined one of its officials as RW1. Ex.R1 and R2 were marked.

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After hearing learned counsel on both sides and perusing the records, the learned MACT allowed the claim petition in part and awarded a compensation of Rs.1,68,800/- with the interest @ 8% per annum from the date of petition till the date of payment. Learned MACT fastened the liability to pay the compensation on the Insurance Company.

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The contention put fourth in respect of the appellant is that the compensation awarded is on the

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MFA No. 21060 of 2010

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lower side and since the claimant-appellant was a milk vendor, earning handsome income, a higher compensation should have been awarded. The other ground taken is that the disability assessed by the learned Tribunal @ 12% is on the lower side and taking into consideration the medical evidence, the learned MACT ought to have taken the disability at 20% to the whole body. It is therefore contended that the appeal is required to be allowed and compensation is required to be enhanced.

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Learned counsel Sri Ravindra. R. Mane, appearing for the Insurance Company, per contra, contended that there is no merit in the appeal. The claimant did not suffer any permanent disability at all. Even if he had suffered some disability, he being employed in a private company as a Supervisor and continuing in the employment, he has not suffered any loss of income. He further submitted that the Insurance Company had preferred an appeal in MFA No.22002/2010, which came to be allowed in part by the judgment of this Court dated

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MFA No. 21060 of 2010

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05.01.2015 holding that the compensation awarded to the claimant is liable to be paid by the Insurance Company in the fist instance and the Insurance Company has a right to recover it from the owner of the insured vehicle in the same proceedings. He submits that the learned MACT having awarded just and reasonable compensation, the appeal is required to be dismissed.

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I have heard learned counsel on both sides and

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I have carefully perused the records.

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The case of the claimant is that on 30.06.2008 at about 7.30 a.m., when the claimant was proceeding on a motorcycle, the offending Trax bearing registration No.KA-35/7984 being driven by the driver in a rash and negligent manner, dashed against his motorcycle resulting in fracture of both bones of his right leg.

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In this appeal, the negligence on the part of the driver of offending vehicle or involvement of offending vehicle in causing the accident, is not in question.

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MFA No. 21060 of 2010

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I have carefully perused the Wound CertificateEX.P4 and Discharge Summary-Ex.P8 issued, respectively, by the Medical Officer, Community Health Centre, Sandur and the Vijayanagar Institute of Medical Sciences, Ballary. As per wound certificate, the claimant was seen in the Community Health Center, Sandur at about 8.20 a.m., on 30.06.2008 and thereafter he was referred to VIMS Ballary. He had suffered fracture of both bones of right leg at mid 1/3^rd .

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Ex.P.8-Discharge Summary issued by Vijaya Nagar Institute of Medical Sciences, Ballary shows that the claimant was admitted there on 30.06.2008 and he was discharged on 24.07.2008. Noting in the Discharge Summary shows that as on 11.12.2008, clinically fracture union was present and there was no abnormality and X- Ray showed fracture union was in progress. The disability assessment was made by a non-treating doctor and the said doctor-PW2 assessed the disability at 20% of the whole body and appreciating the entire evidence, learned

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MFA No. 21060 of 2010

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Tribunal has assessed it at 12%. Therefore, there is no ground to come to a conclusion that claimant had suffered physical disability of the whole body to the extent of 20% and the opinion of PW2 appears to be exaggerated one. Therefore, the compensation awarded by the learned Tribunal under the head of loss of earning at Rs.77,760/is maintained and no enhancement on the same is called for. Learned Tribunal has awarded a compensation of Rs.15,000/- under the head of loss of amenities & future unhappiness and Rs.10,000/- for future medical expenses and Rs.9,000/- under the head of loss of income during laid up period and they being reasonable are maintained. Similarly, under the head of pain and suffering Rs.30,000/- has been awarded and Rs.22,000/- towards medical expenses and another sum of Rs.5,000/- under the head of conveyance, foods, nourishment and other incidental expenses and they are maintained.

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Accordingly, there is no good ground made out

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to increase or enhancement of compensation amount.

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MFA No. 21060 of 2010

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Hence, the appeal is liable to be dismissed and it is

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dismissed.

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Registry to return the records to the learned

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MACT forthwith.

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Sd/JUDGE

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SSP

Ambaresh S/O Eranna v. Shivu @ Shivangouda

Case brief

What is this about?

What did the court decide?

Ambaresh S/O Eranna v. Shivu @ Shivangouda

Case brief

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What did the court decide?

What the court decided

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