Partly allowed

Arun Augustine v. Siju Joseph

Karnataka HC6 Jun 2022MFA/945/2021

Case brief

AI extract

What is this about?

High Court allowed the appeal in part, remanding the motor accident compensation case to the Claims Tribunal for fresh consideration of disability quantum. The court directed the Tribunal to ensure the claimant examines the disability certifying doctor or refer to a Medical Board.

What did the court decide?

Appeal allowed in part; matter remanded to Tribunal for fresh consideration of compensation quantum via Medical Board examination.

Arun Augustine Vs Siju Joseph — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE 2022

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BEFORE

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

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MFA No.945 OF 2021 (MV)

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BETWEEN:

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Arun Augustine, Aged about 42 years, S/o Augustine, R/at 130, Majalu House, Kuthluru, Kultur, Belthangady Taluk. … Appellant

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(By Miss.Nazeefa M.Mulla., Advocate for Sri.Pavana Chandra Shetty.H, Advocate)

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AND:

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Siju Joseph, Aged about 38 years, S/o Joseph, R/at Kochupanpil House, Kallamma Gudde, Valpady Village and post, Shirthady, Mangalore Taluk.

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The Branch Manager, United India Insurance Co. Ltd., Karkala Branch, P.B.No.29, 2^nd Floor, Sushila Sanjiv Enclave, Near Karnataka Bank, Market Road, Karkala. ... Respondents

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(By Sri.S.V.Hegde Mulkhand, Advocate for R2; Notice to R1 is dispensed with)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 29.01.2020 passed in MVC No.822/2019 on the file of the Senior Civil Judge and MACT, Karkala, partly allowing the claim petition for compensation and seeking enhancement of compensation. This MFA, coming on for Orders, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment and decree dated 29.01.2020 passed by MACT, Karkala, in MVC No.822/2019.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 18.11.2018 at about 11.00 a.m., the claimant was standing near the Hosmar Petrol Pump over mud portion of Karkala – Belthangady State Highway. At that time, one Bajaj Discover two wheeler bearing registration No.KA19/ED-5422 being driven by its rider at a high speed

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and in a rash and negligent manner, dashed to the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was

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hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in

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the eye of law. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P22 and Ex.C1 to C3. On behalf of the respondents, no witness was examined but got exhibited document namely Ex.R1. The Claims

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Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,08,790/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Firstly, due to the accident the claimant has suffered grievous injuries. He has produced the disability certificate issued by the doctor as Ex.P22 wherein the doctor has assessed 40% temporary

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disability of left lower limb, but the Tribunal has not granted any compensation for ‘loss of future income’.

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Secondly, compensation awarded by the Tribunal

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on the other heads is also on the lower side. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for

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the Insurance Company has raised following counter contentions:

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Firstly, the claimant has produced the disability certificate issued by the doctor but he has not examined the doctor who has issued the said certificate and the injuries suffered by the claimant are minor in nature. Considering the injury, considering the wound certificate, considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable.

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Secondly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs.

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VENKATESHAN.V AND OTHERS ( MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. is on the higher side. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the records.

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9. It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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Due to the accident the claimant has suffered contusion over left heep, contusion over cheek, fracture of 5^th metacarpal base, fracture of maxillary

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bone, fracture of left orbital bone. He has produced Ex.P22 treatment and disability certificate. As per the disability certificate the claimant has suffered 40% disability to left lower limb, but the claimant has not examined the doctor who has issued the disability certificate. A Division Bench of this Court in the case ‘IQBALAHAMED vs. VICE CHAIRMAN, M/S. PATEL INTEGRATED LOGISTICS LTD. AND ANOTHER’

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ILR 2017 KAR 3045 has held that in cases where the claimants are not able to examine the doctor, who has issued disability certificate as a witness, due to their poverty, illiteracy, ignorance etc., a pro-active role needs to be adopted by the Tribunal and the presence of the doctor is to be ensured by the Presiding Officers by invoking the powers under Section 165 of the Evidence Act, 1872.

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In view of the above, the matter requires to be remanded back to the Tribunal for fresh consideration

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only in respect of quantum is concerned. In respect of liability and negligence is concerned, the same is confirmed.

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In view of the above, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified.

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The matter is remanded back to the Tribunal for fresh consideration in respect of the quantum of compensation is concerned.

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The Tribunal is directed to permit the claimant to examine the doctor by summoning the doctor who has issued the disability certificate. If that doctor is not available, Tribunal is directed to refer the matter to the Medical Board for assessment of disability, thereafter reassess the compensation in accordance with law and decide the matter.

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Since the parties are represented by the learned counsel, parties are directed to appear before the

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Tribunal on 21.07.2022 at 11.00 a.m., without any further notice. The Tribunal is directed to decide the matter within four months from the date of

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appearance of the parties.

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All the contentions of the parties are left open.

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Sd/JUDGE

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