Allowed

Rachayya S/O Appayya Matapathi, v. Maruti S/O Nivrutti Lagoti

Karnataka HC8 Aug 2023MFA/21263/2011

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal, setting aside a lower court's dismissal of a motor vehicle accident claim. Finding the vehicle number discrepancy was a clerical error, the court awarded Rs. 3,20,100 along with interest for injuries and disability.

What did the court decide?

The appeal was allowed, the impugned judgment set aside, and the appellant awarded Rs. 3,20,100 compensation with interest at 6% per annum.

Rachayya S/O Appayya Matapathi, Vs Maruti S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:8610 MFA No. 21263 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.21263/2011(MV-I)

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BETWEEN:

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RACHAYYA S/O. APPAYYA MATAPATHI, AGED ABOUT 25 YEARS, OCCUPATION: PIGMI COLLECTION AND AGRICULTURIST, R/AT AND POST SHIVANUR VILLAGE, TALUK: ATHANI, DISTRICT: BELGAUM.

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…APPELLANT

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(BY SRI ARCHANA A. MAGADUM, ADVOCATE)

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AND:

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MARUTI S/O. NIVRUTTI LAGOTE, AGED ABOUT 39 YEARS, OCCUPATION: BUSINESS, R/AT: AND POST KOKLE VILLAGE, TALUK: KAVATEMAHANKAL, DISTRICT: SANGLI, STATE: MAHARASTRA.

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Digitally signed by SUJATA SUBHASH PAMMAR

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THE GENERAL MANAGER, NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE:468/1, OPPOSITE TO POPATBAI PETROL PUMP SHENIVAR PETH NO.7, KARDA – 415 110.

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…RESPONDENTS

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(BY SRI N.R.KUPPELUR, ADVOCATE FOR R2; R1 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 23.03.2010 PASSED BY THE COURT OF FAST TRACK, ATHANI IN MVC NO.1605/2006 THEREBY DISMISSING THE CLAIM PETITION FILED BY THE APPELLANT, HEAR THE SAME ON MERITS AND AWARD A MAXIMUM COMPENSATION OF RS. 7,75,000/TOGETHER WITH INTEREST FROM THE DATE OF FILING HE CLAIM PETITION, TILL REALIZATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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JUDGMENT

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This appeal is filed by the appellant/claimant

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challenging the judgment and award dated 23.03.2010 passed in MVC No.1605/2006 by the Court of Fast Track, Athani, by which the claim petition was dismissed.

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Brief facts of the case are that on 29.04.2006 at

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morning 9 am., the claimant and his brother and another person were standing left side of Jembagi-Athani road. At that time, the driver of lorry bearing No.MXL 7445 came from Athani, driving his lorry in rash and negligent manner and dashed the claimant due to which the claimant sustained grievous injuries. Therefore, claimant has filed claim petition under Section 166 of MV Act for claming compensation. But, the Tribunal has dismissed the claim petition on the ground that the lorry bearing No.MXL-7445 was not involved in the accident and the vehicle number mentioned in the complaint, FIR and other documents are

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different. Therefore, got suspicion in the mind and Tribunal dismissed the claim petition. Challenging the same claimant is before this Court.

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Heard the learned counsel for the parties and perused the materials available on record.

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Learned counsel for the claimant submitted that the vehicle involved in the appeal is lorry bearing No.MXL7445 but in the complaint due to inadvertency lorry number is mentioned as MXL-7475 and the same mistake is continued in the subsequent documents. But, in the charge sheet, Investigating Officer had categorically mentioned the vehicle number as MXL 7445. Therefore, the vehicle involved in the present case is MXL 7445 and in this regard Tribunal has not appreciated the evidence on record correctly, thereby resulting in dismissal of the claim petition erroneously. Therefore, learned counsel for the appellant-claimant prays to allow the appeal and grant compensation.

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4 - NC: 2023:KHC-D:8610 MFA No. 21263 of 2011

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On the other hand, learned counsel for the respondent-Insurance company submitted that in the present case, the lorry bearing No. MXL 7445 was not involved but another vehicle bearing No.MXL 7475 is involved and that is found in the complaint, FIR, M.V. report and seizure panchnama etc. Therefore, the mistake committed is not at one or two places, but in the series of documents the number is mentioned as MXL 7475. Hence, the Tribunal is justified in dismissing the claim petition. Therefore, prays to dismiss the appeal.

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It is the case of the claimant that his brother

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and his friend were standing on the left side of the Jambagi-Athani road. At that time, driver of truck bearing No. MXL 7445 has dashed the claimant. But, in the complaint, vehicle number mentioned is MXL 7475. Consequently, the same number is reflected in the FIR. The Tribunal has disbelieved the involvement of the lorry as contended by the claimant and dismissed the claim petition because of the difference in one digit in

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mentioning the vehicle number. There is a delay of 7 days in lodging the complaint before the Police. Just because there is a delay in lodging the complaint, the claim petition cannot be doubted. The delay in lodging the complaint can be considered on the facts and circumstances of each case. In the present case, claimant was taking treatment in the Hospital. Therefore has not lodged the complaint immediately after the accident.

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The Hon’ble Supreme Court in the case of Ravi Vs. Badrinarayan and others¹ has held that the delay in lodging the complaint has to be appreciated on the basis of facts and circumstances of the each case. Therefore, the delay in lodging the complaint cannot always be made as a sole ground to reject the claim petition.

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In the present case, the delay in lodging the complaint does not go to the core of the case that the case is unbelievable. But, considering the medical evidence on record, wound certificate, case sheet etc. proved that the

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1 2011 AIR SCW 1530

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claimant had sustained injuries in the road traffic accident as per the date and time mentioned in the complaint, there may be a delay in lodging the complaint. But, there is a delay since he has admitted in the hospital for treatment. Therefore, it is proved that the claimant had sustained injuries in the road traffic accident. Therefore, even though, there is a delay of 7 days in lodging the complaint in the present case, that cannot create suspicion regarding factum of the accident and injury sustained by the claimant.

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Appreciating the evidence on record, regarding involvement of the vehicle in the present case, even though there is a difference in mentioning the lorry number as MXL 7445 but, it is mentioned as MXL 7475. But this mistake in mentioning only one digit and this may occur due to inadvertent circumstance. It is true that in the complaint and FIR, the lorry number is mentioned as MXL 7475. But, in spot panchanma, the vehicle number mentioned is MXL 7445. Later, on records, it was corrected

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as 7445 by writing 4 on the 3^rd digit. But, subsequently, it is clearly written the lorry number as MXL 7445. But, in the charge sheet, the investigating officer has categorically mentioned the lorry number as MXL 7445. Even though, there is a difference in mentioning one digit as discussed above, but the class, category and nature of the vehicle is not changed and the same is found in all the documents. Therefore, there might have been a change due to inadvertent error and for the same lorry number mentioned wrongly as MXL 7475.

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Upon considering the evidence on record in the background of facts and circumstances of the case and appreciating the evidence on all it’s preponderance of probability, it is proved that the vehicle involved is Lorry number MXL 7445. But, the Tribunal considering only this mistake and making it as glorified has disbelieved the claim petition is not correct approach. Therefore, it is proved that the offending vehicle is lorry bearing MXL No.7445 involved in the accident. Hence, the judgment

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and award in dismissing the claim petition is liable to be

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set aside and accordingly set aside.

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REGARDING QUANTUM OF COMPENSATION:

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From the evidence on record it is proved that the claimant had suffered injuries like right proximal tibia, liver laceration and other injuries over body.

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It is proved that the as per Ex.P.12 the claimant had suffered 20% disability fracture of tibia and fibula of bone of right leg with multiple contortion in right lobe of lever with tear in between right and left lobe. The above said injuries are grievous in nature.

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Therefore, considering the nature of injury sustained compensation of Rs.50,000/- is awarded towards injuries pain and suffering .

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The claimant had produced medical bills and receipts at Ex.P.13 to Ex.P.60 and Ex.P.71 and Ex.P.72 of Rs.1,20,267/-.

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Accordingly, a compensation of Rs.1,20,267/- is awarded for medical expenses and hospital

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charges .

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Further a compensation of Rs.45,000/- is

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awarded under the head of Attendant charges like food nourishment etc.,

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Further the compensation of Rs.40,000/- is awarded under the head of loss of amenities .

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The accident was caused in the year 2006, therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.3,750/- is to be taken as notional monthly income of the claimant. The doctor stated that the claimant had suffered 20% of physical disability towards right lower limb. Therefore, the functional disability is to be considered at 8% towards whole body. The claimant was aged 23 years at the time of the accident. Therefore, the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

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Verma & Others vs. Delhi Transport Corpn and

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Another² is ‘18’. Therefore, the compensation under the

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head ‘Loss of earning capacity due to disability’ is

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reassessed and quantified as follows:

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Rs.3,750 x 8% x 18 x 12 = 64,800/-.

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Hence, the claimant is entitled for a total

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enhanced compensation, under various heads as follows:

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1. Pain and Suffering	Rs.50,000/-
2. Towards Medical expenses	Rs.1,20,267/-
3.^{Attendant Charges, nursing} and nourishment charges	Rs.45,000/-
4.^{Loss of earning capacity due} to disability	Rs.64,800/-
5. Loss of amenities	Rs.40,000/-
Total	Rs.3,20,067/-

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Therefore, the claimant is awarded a total compensation of Rs.3,20,067/rounded off to

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Rs.3,20,100/- along with interest at 6% per annum from

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the date of filing of the petition till realization.

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2 AIR 2009 SCC 3104

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NC: 2023:KHC-D:8610 MFA No. 21263 of 2011

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ORDER

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i) The appeal filed by the claimant is allowed.

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ii) The judgment and award dated 23.03.2010 passed in M.V.C. No.1605/2006 by the Fast Track Court, Athani, is set aside.

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iii) The claimant is entitled total compensation of Rs.3,20,100/- along with interest at 6% per annum from the date of filing of the petition till realization

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iv) The claimant is not entitled for the interest for the delayed period of 253 days in filing the appeal.

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v) Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court.

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vi) No order as to costs.

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vii) Draw award accordingly.

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HMB- upto para 10 SSP –Para 11 to end. List No.: 2 Sl No.: 37 CT-ASC

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SD/JUDGE

Rachayya S/O Appayya Matapathi, v. Maruti S/O Nivrutti Lagoti

Case brief

What is this about?

What did the court decide?

Rachayya S/O Appayya Matapathi, v. Maruti S/O Nivrutti Lagoti

Case brief

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What did the court decide?

What the court decided

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