The Branch Manager Vs Shantesh

THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, BUS STAND ROAD, GOKAK, TQ: GOKAK, R/BY ITS THE ADMINISTRATIVE OFFICER, NATIONAL INSURANCE COMPANY LIMITED.

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… APPELLANT

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(BY SRI. RAJESH B. RAJANAL, ADVOCATE)

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AND:

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SHANTESH S/O GURUPADAPPA ANTIN, AGE: 23 YEARS, OCC: PRIVATE SERVICE, R/O: ARAKERI, NOW AT SOMAWAR PETH, GOKAK, TQ: GOKAK, DIST: DHARWAD, PIN CODE-591 307.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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GOUTAM S/O CHARAMARAJ MALAGANNAVAR, AGE: MAJOR, OCC: BUSINESS, R/O: AJJANMANI, 2^ND CROSS, YOGIKOLLA ROAD, GOKAK, DIST: BELAGAVI, PIN CODE-591 307.

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PRAVEEN S/O VIRUPAXAPPA VARJI, AGE: MAJOR, OCC: BUSINESS, R/O: 3906, GURUWAR PETH, GOKAK, DIST: BELAGAVI, PIN CODE-591 307.

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… RESPONDENTS

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(BY SRI. BAHUBALI N. KANABARGI, ADVOCATE FOR R1; R2 AND R3-SERVED AND UNREPRESENTED)

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NC: 2025:KHC-D:7670 MFA No. 103147 of 2018 C/W MFA No. 102783 of 2018

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HC-KAR

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, SET ASIDE THE JUDGMENT AND AWARD DATED 27.04.2018 PASSED IN M.V.C. NO.2742/2016 ON THE FILE OF THE XII-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-XIII, BELAGAVI, SITTING AT GOKAK.

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IN MFA NO. 102783 OF 2018: BETWEEN:

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SRI. SHANTESH S/O GURUPADAPPA ANTIN, AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O: ARAKERI, NOW AT SOMAWAR PETH, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 329.

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… APPELLANT

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(BY SRI. BAHUBALI N. KANABARGI, ADVOCATE)

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AND:

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SRI. GOUTAM S/O CHARAMARAJ MALAGANNAVAR, AGE: MAJOR, OCC: BUSINESS, R/O: AJJANMANI, 2^ND CROSS, YOGIKOLLA ROAD, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 329.

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SRI. PRAVEEN S/O VIRUPAXAPPA VARJI, AGE: MAJOR, OCC: BUSINESS, R/O: 3906, GURUWAR PETH, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 329.

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THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, BUS STAND ROAD, GOKAK, TQ: GOKAK-591 329.

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… RESPONDENTS

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(BY SRI. RAJESH B. RAJANAL, ADVOCATE FOR R3; R1 AND R2-DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, SET ASIDE THE JUDGMENT AND AWARD DATED 27.04.2018 PASSED IN M.V.C. NO.2742/2016 ON THE FILE OF THE XII-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND

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HC-KAR

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MOTOR ACCIDENT CLAIMS TRIBUNAL-XIII, BELAGAVI, SITTING AT GOKAK.

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THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)

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MFA No.103147/2018 is filed by the appellant/insurance company contending that there was contributory negligence and MFA No.102783/2018 is filed by the claimant seeking for enhancement of compensation by challenging the common judgment and award dated 27.04.2018, passed by the XII Additional District and Sessions Judge and MACT-XIII, Belagavi, (hereinafter referred to as the ‘Tribunal’) in MVC No.2742/2016.

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Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court.

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In the present case, it is averred that, on 30.10.2016 at about 08.00 p.m., the claimant after completion of his work was returning from Lolasur towards Gokak on motorcycle bearing Reg.No.KA-49/E-5731 in a moderate speed

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NC: 2025:KHC-D:7670 MFA No. 103147 of 2018 C/W MFA No. 102783 of 2018

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HC-KAR

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by observing traffic rules. When the claimant came near Lolasur village i.e., in front of Zawar petrol pump on GhataprabhaGokak road, at that time, a car bearing Reg.No.KA-22/P-0603 came from opposite side i.e., Ghataprabha side, with high speed and in a rash and negligent manner endangering human life and dashed to the claimant’s motorcycle and caused the accident in question. Due to the accident, claimant fell down and sustained grievous injuries.

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Upon considering the facts and circumstances and evidence on record, there is no negligence found on the part of rider of the vehicle. The entire allegation is made against the driver of the car bearing Reg.No.KA-22/P-0603. Therefore, there is no contributory negligence proved. Hence, the appeal filed by the insurance company is dismissed.

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Regarding Quantum of Compensation in MFA No.102783/2018:

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In the present case, from the medical evidence on record it is proved that the claimant had suffered the following injury.

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HC-KAR

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”Swelling and tenderness on clavicle region, swelling and tenderness and deformity present on left leg, X-ray reveals clavicle fracture of tibia.”

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The Tribunal after considering the facts and circumstances and evidence on record, has awarded total compensation of Rs.2,17,000/- along with interest at the rate of 6% per annum from the date of petition till the date of

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realization, under the following heads:

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Sl.	Heads.	Amount in
No.		(Rs.)
1.	Towards Pain and sufferings.	25,000/-
2.	Towards medical expenses.	20,093/-
3.	Towards attendant conveyance and extra nourishments	6,000/-
4.	Loss of income during laid up period	20,000/-
5.	Loss of income on account of disability	1,36,080/-
6.	Towards loss of amenities	10,000/-
	Total	2,17,173/-
	Rounded off	2,17,000/-

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Further, upon considering the nature of injuries sustained, compensation awarded by tribunal is on lesser side. Therefore, the same is required to be enhanced by modifying the judgment and award.

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NC: 2025:KHC-D:7670 MFA No. 103147 of 2018 C/W MFA No. 102783 of 2018

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HC-KAR

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Considering the injuries sustained, a compensation of Rs.40,000/- towards pain and suffering, Rs.25,000/- towards loss of amenities are awarded. The compensation awarded towards medical expenses and hospital charges of Rs.20,093/is as per the actual bills and receipts produced; therefore, the same is kept intact. Further, Rs.17,500/-(8,750 x 2) towards loss of income during laid up period for a period of two months is awarded and Rs.15,000/- towards attendant conveyance and incidental expenses like food, nourishment, travelling, attendant charges, etc., is awarded.

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The doctor- PW.2 has stated that the claimant had suffered 30% of physical disability to the whole body. Therefore, considering the evidence of the doctor, 10% functional disability is taken into consideration as the claimant had suffered grievous injuries i.e., fracture of clavicle bone and fracture of tibia bone.

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The accident is caused on 30.10.2016. The claimant was doing private work by profession. Therefore, in the absence of proof of income, notional income of Rs.8,750/- per month is to be taken into consideration for the accident year

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HC-KAR

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2016, which is recognized by the Karnataka State Legal Service Authority. The claimant was aged 23 years at the time of accident. Therefore appropriate applicable multiplier is 18. Hence, loss of future income due to disability is hereby re-assessed and quantified as Rs.1,89,000/- (Rs.8,750 x 10% x

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12 x 18).

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Thus, the claimant is entitled for total compensation

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under various heads as under:

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Sl.No.	Heads.	Amount in (Rs.)
1.	Pain and suffering.	40,000
2.	Loss of amenities.	25,000
3.	Medical expenses and hospital charges.	20,093
4.	Loss of income during laid up period	17,500
5.	Incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	15,000
6.	Loss of future earning capacity.	1,89,000
	Total:	3,06,593

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Therefore, the claimant is entitled for total compensation of Rs.3,06,593/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization,

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as against Rs.2,17,000/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation

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HC-KAR

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amount within eight weeks from the date of receipt of a certified copy of this judgment.

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In the result, I proceed to pass the following:

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ORDER

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i. MFA No.103147/2018 is dismissed.

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ii. MFA No.102783/2018 is allowed in part.

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iii. The common judgment and award dated 27.04.2018, passed by the XII Additional District and Sessions Judge and MACT-XIII, Belagavi, in MVC No.2742/2016 is modified.

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iv. The claimant in MFA No.102783/2018 is entitled for total compensation of Rs.3,06,593/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,17,000/- awarded by the Tribunal.

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