Sri. Chandrashekar Vs Sri. V.K. Prakashan

NC: 2025:KHC:12605 MFA No. 1284 of 2023 C/W MFA No. 4683 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF MARCH, 2025 BEFORE

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.1284 OF 2023 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.4683 OF 2023 (MV-D)

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IN MFA.No.1284/2023:

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BETWEEN:

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SRI CHANDRASHEKAR S/O.SHIVARAMA BERRI AGED ABOUT 54 YEARS R/AT 'BHARATH NILAYA' KODI ROAD, HANGALUR VILLAGE KUNDAPURA TALUK

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…APPELLANT

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(BY SRI NAGARAJA HEGDE, ADVOCATE)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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SRI V.K.PRAKASHAN S/O.GOVINDAN MAJOR R/AT KARAYI HOUSE KUVEMBHAGAM POST THALASSERY KANNUR DISTRICT KERALA

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THE CHOLAMANDALAM GENERAL INSURANCE CO.LTD. DIVISIONAL OFFICE, UDUPI REP. BY ITS DIVISIONAL MANAGER

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…RESPONDENTS

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(BY SRI H.C.BETSUR, ADVOCATE FOR R-2; R-1 IS SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,

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NC: 2025:KHC:12605 MFA No. 1284 of 2023 C/W MFA No. 4683 of 2023

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PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 06.08.2022 PASSED IN MVC.NO.600/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA.

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IN MFA.NO.4683/2023:

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BETWEEN:

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RUKMINIYAMMA AGED ABOUT 74 YEARS W/O.LATE SUBBAPPA NADAR

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JYOTHI AGED ABOUT 30 YEARS W/O.LATE GANESH @ SHANMUKHA NADAR

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THARUN S. AGED ABOUT 13 YEARS S/O. LATE GANESH @ SHANMUKHA NADAR

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THANMAY K.S. AGED ABOUT 09 YEARS D/O.LATE GANESH @ SHANMUKHA NADAR

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SINCE APPELLANT NOS.3 & 4 ARE MINOR CHILDREN, THEY ARE REPRESENTED BY THEIR NEXT FRIEND AND GUARDIAN MOTHER-APPELLANT NO.2 BY NAME JYOTHI

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ALL ARE RESIDING AT KODAKANI VILLAGE AND POST SORABA, SORABA TALUK SHIVAMOGGA DISTRICT

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ALSO RESIDING AT HEMMADI VILLAGE AND POST KUNDAPURA TALUK UDUPI DISTRICT … APPELLANTS (BY SRI K.PRASANNA SHETTY, ADVOCATE)

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AND:

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V.K.PRAKASHAN (MAJOR) S/O.GOVINDAN R/AT KARAYI HOUSE KAVUMBHAGAM POST THALASSERY KANNUR DISTRICT KERALA-670 612

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ALSO RESIDING AT: KARAYI HOUSE KAVUMBHAGAM UMMENCHIRA SOCIETY KANNUR UMMENCHIRA S.O. KANNUR KERALA-670 649

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THE CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD. REP. BY ITS MANAGER REGD. & HEAD OFFICE AT: DARE HOUSE, 2^ND FLOOR NO.2, NSC BOSE ROAD CHENNAI, TAMILNADU-600 001

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…RESPONDENTS

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(BY SRI H.C.BETSUR, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED V/O.DATED 25.03.2025)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 06.08.2022 PASSED IN MVC.NO.425/2018 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA.

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THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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Since both the appeals are arising out of the same accident, they are taken up together for consideration.

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These two appeals are preferred by the claimants questioning the common judgment and award dated 06.08.2022 passed in MVC.Nos.600/2018 and 425/2018 respectively by the Court of the Senior Civil Judge and Additional MACT, Kundapura (for short, 'the tribunal'). These appeals are founded on the premise of inadequacy of compensation awarded by the tribunal.

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Parties to the appeals shall be referred to as per their status before the tribunal.

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Brief facts of the case are as under:

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On 15.12.2017 at about 1.50 a.m., one

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Chandrashekar was driving the auto rickshaw bearing registration No.KA-20-B-9399 and one Ganesh @ Shanmukha Nadar was also travelling as a passenger therein from Kundapura side towards Byndoor side. When

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the said auto rickshaw reached near NH-66, Hemmadi junction, Hemmadi Village, a lorry bearing registration No.KL-58-A-7051 driven by its driver came in a rash and negligent manner and dashed against the auto rickshaw. Due to which, the auto rickshaw toppled on the road and the driver as well as the passenger sustained grievous injuries. Due to the said impact, the said Chandrashekar, the driver of the auto rickshaw was immediately taken to Taluk Government Hospital, Kundapura and he expended financial expenditure towards his treatment, whereas, the

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said Ganesh @ Shanumukha Nadar sustained head injury and was immediately taken to Taluk Government Hospital, wherein, he succumbed to the injuries.

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4.1 Due to the injuries sustained in the accident, the said Chandrashekar, the injured claimant has filed a claim petition in MVC.No.600/2018 seeking compensation, whereas, the dependants of inmate passenger namely, deceased Ganesh @ Shanmukha Nadar filed a claim petition in MVC.No.425/2018 seeking compensation for the

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unfortunate death of the passenger against the

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respondents, who are the owner and Insurance Company of the offending vehicle, Lorry.

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4.2 On service of notice, respondent No.1, the owner of the offending vehicle remained absent and was placed ex parte . Respondent No.2-Insurance Company filed written statement denying the claim of the claimants and sought for dismissal of the claim petitions.

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4.3 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsels for both parties, the tribunal awarded compensation of Rs.12,92,696/- with interest @ 6% p.a. in MVC.No.600/2018 and Rs.22,88,000/- with interest @ 6% p.a. in MVC.No.425/2018 and fixed the liability jointly against respondent Nos.1 and 2, however, directed respondent-Insurance Company to pay the compensation within thirty days.

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4.4 Being aggrieved by the meager compensation awarded by the tribunal, the injured claimant in MVC.No.600/2018 filed an appeal in MFA.No.1284/2023 and the claimants in MVC.No.425/2018 have filed an appeal in MFA.No.4683/2023 before this Court seeking enhancement of compensation.

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IN MFA.No.1284/2023 (MVC.No.600/2018):

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Learned counsel for injured claimant, who is the driver of the auto rickshaw contends that admittedly, the injured claimant was driving the auto rickshaw as on the date of occurrence of accident along with the passenger

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and due to the rashness and negligence of the offending Lorry, he met with an accident, due to which, he sustained amputation of left hand middle and index fingers in distal 2/3^rd , thereby crippling him from driving the auto rickshaw, which is his profession. He further contends that he examined the Doctor as PW.5, who was opined the disability to an extent of 56% to the left upper limb. This aspect of disability has not been appreciated by the tribunal and the tribunal has reduced the disability to

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38%, which is erroneous and therefore, he seeks enhancement of the disability aspect. He further contends that admittedly, the driver of the auto rickshaw, has got amputation of his middle and index fingers, however, he will not be able to drive the auto rickshaw, which requires grip on all the fingers on the left hand to operate the gears. He contends that the injured claimant has stated in his evidence that he was earning a sum of Rs.25,000/- per month. He has also produced a copy of the Driving Licence, but the tribunal has disbelieved the same and awarded notional income of Rs.11,000/-, which is also erroneous. He also contends that the driver of the auto rickshaw cannot be equated with daily wager or coolie, who does not have any regular income or avocation. On these grounds, he seeks to allow his appeal for enhancement of compensation.

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Per contra , learned counsel for Insurance

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Company sustains the impugned judgment and award passed by the tribunal. He contends that the injured

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claimant, the driver of the auto rickshaw has not produced any material to show that as to whether he was the driver

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of the auto rickshaw or it belongs to him or he was driving the same on a lease basis. He further contends that in view of non-production of any cogent material with regard to the income, the tribunal is justified in assessing the notional income at Rs.11,000/- per month. However, there is no arbitrariness or illegality in the judgment and award passed by the tribunal, so also, he contends that under other heads, the compensation awarded by the tribunal is

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just and reasonable. On these grounds, he seeks to dismiss the appeal filed by the injured claimant.

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Having heard the learned counsel for injured claimant and learned counsel for Insurance Company and perused the impugned judgment and award, it is apparently seen that though the injured claimant has produced the Driving Licence before the tribunal, it was not marked in the evidence. It may be an error committed by the counsel on record for not having marked the

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Driving Licence, the fact remains that the claimant was the driver of the auto rickshaw, who sustained injuries. The Doctor-PW.5 opined the disability to an extent of 56% of the left upper limb. Though he has not stated any disability to the whole body, the tribunal assessed the same at 38%. Since the Insurance Company is not in appeal, the disability assessed at 38% by the tribunal does

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not call for interference and the same is retained. The age of the injured claimant was 50 years as on the date of occurrence of accident. The appropriate multiplier applied

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is '13', which is rightly applied by the tribunal and the same is retained. In view of the disability assessed by the tribunal at 38% to the whole body, the tribunal awarded

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10% towards future prospects. However, as per the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme

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Court Cases 680 , the claimant being aged 50 years and is between the age group of 40 and 50 years, 25%

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requires to be added to the income towards future prospects as against 10% taken by the tribunal.

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Now coming to the aspect of income of the injured claimant, it is seen that the tribunal has taken the notional income for want of material proof. However, the fact remains that the claimant is an auto rickshaw driver, who is a skilled employee and he cannot be equated with daily wager/coolie. Therefore, the income is to be taken at Rs.15,000/- per month. Hence, the injured claimant would be entitled to the compensation of Rs.11,11,500/- (Rs.15,000/- + 25% = Rs.18,750/- x 12 x 13 x 38%) towards loss of future earning capacity due to permanent disability as against Rs.7,17,288/- awarded by the tribunal.

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The tribunal awarded Rs.1,00,000/- towards pain and suffering, Rs.3,14,404/- towards medical expenses, Rs.45,000/- towards loss of amenities and Rs.50,000/towards conveyance, diet and attendant charges, which do not call for interference and the same are retained.

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The tribunal awarded Rs.66,000/- towards loss of income during laid up period. However, in view of this Court enhancing the monthly income from Rs.11,000/- to Rs.15,000/- and he would require atleast six months period to recuperate and to get back to his normal day to day activities. Therefore, the claimant would be entitled to

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Rs.90,000/- (Rs.15,000/- x 6) under this head.

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In view of the above, the claimant would be entitled to a total compensation of Rs.17,10,904/- as against Rs.12,92,696/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future income due to disability	11,11,500-00
Pain and suffering	1,00,000-00
Medical expenses	3,14,404-00
Loss of income during laid up period	90,000-00
Loss of amenities	45,000-00
Conveyance, diet and attendant charges	50,000-00
TOTAL	17,10,904-00

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IN MFA.No.4683/2023 (MVC.No.425/2018):

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Learned counsel for claimants, who are the dependants of the deceased Ganesh @ Shanmukha Nadar

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contends that the deceased was hale and healthy and working as a mason and earning Rs.30,000/- per month.

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He contends that the deceased was employed under his employer-PW.4, who is a Class-I Contractor. He has stated in his evidence that the deceased was working as a mason for the past 3 years and he was paid salary of Rs.15,000/per month. PW.2 has also produced Ex.P148, which is a salary certificate to show that the deceased was working as a mason under PW.4 and earning a salary of Rs.15,000/- per month. Therefore, he contends that the tribunal has ignored this document and committed an error in taking into consideration the salary certificate at Ex.P148 and the evidence of PW.4 and has merely taken

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the notional income of the deceased at Rs.11,000/- per month, which is erroneous and the same requires to be enhanced. On these grounds, he seeks to allow his appeal for enhancement of compensation. However, no dispute or grievance is raised by learned counsel with regard to the compensation awarded under other heads by the tribunal.

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Per contra, learned counsel for Insurance Company vehemently contends that there is absolutely no material placed by the claimants, apart from the salary certificate as per Ex.P148 to show that the deceased was employed as a mason under PW.4, who is a Class-I Contractor. He further contends that no documents are produced to show as to how the income was received by the deceased as no Bank statement or Bank records are produced. It is also contended that PW.4, who claims to be the Class-I Contractor has not placed any material to

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show that he had employed the deceased under his employment as a mason. However, he has not produced any register with regard to the wages of the employees and also Insurance or Workmen employed as a mason under Class-I Contractor. Therefore, it is hard to believe that the deceased was employed under PW.4 merely on production of the salary certificate at Ex.P148, which itself is disputed. He further contends that the tribunal has rightly disbelieved the salary certificate produced at Ex.P148 and assessed the notional income at Rs.11,000/-

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per month, which does not call for interference at the hands of this Court. On these grounds, he seeks to dismiss the appeal.

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Having heard the learned counsel for claimants

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and learned counsel for Insurance Company and perused the impugned judgment and award, though it is stated by the claimants, who are the dependants that the deceased was working as a mason and produced the salary certificate at Ex.P148 through PW.4, the Class-I Contractor, the same is disbelieved by the tribunal for the reason that apart from production of Ex.P148, the evidence of PW.4 does not corroborate by any other material and Ex.P148 is not capable of being relied, as PW.4, who claims to be the Class-I Contractor, has not placed any other cogent and corroborative material to show that the deceased was employed under him, so also, the same is not facilitated by the claimants to show that the deceased was employed and earning an income of

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Rs.30,000/- per month or PW.4 was paying the salary of Rs.15,000/- per month.

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In the absence of cogent and reliable material, which the claimants ought to have produced and placed on record to establish their case, it is onus on the claimants to produce the documents to prove and establish their case. However, the tribunal has disbelieved the version of the claimants and taken the notional income at Rs.11,000/- per month and consequently, calculated the compensation under other heads. Therefore, I do not find any good ground or cogent reason to interfere with the finding and reason and the compensation awarded by the tribunal. Hence, the compensation awarded by the tribunal is retained.

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Accordingly, I pass the following:

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ORDER

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i) The appeal in MFA.No.1284/2023 (MVC.No.600/2018) preferred by the injured claimant namely, Chandrashekar is allowed-inpart ;

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ii) The appeal in MFA.No.4683/2023 (MVC.No.425/2018) preferred by the claimants, dependants of the deceased Ganesh @ Shanmukha Nadar, do not deserve any further modification and accordingly, it is dismissed;

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iii) The judgment and award dated 06.08.2022 passed in MVC.No.600/2018 by the Court of the Senior Civil Judge and Additional MACT, Kundapura, is modified;

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iv) The injured claimant namely, Chandrashekar in MFA.No.*1284/2023 (MVC.No.600/2018) is entitled to a sum of Rs.17,10,904/- as against Rs.12,92,696/- with interest @ 6% p.a.;

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v) The balance compensation amount shall be paid by the Insurance Company within a period of four weeks from the date of receipt of a copy of this order;

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vi) All other terms and conditions with regard to apportionment, Fixed Deposit, so also, release of the amount as per the ratio stipulated by the tribunal, are retained;

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Sd/(PRADEEP SINGH YERUR) JUDGE

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LB List No.: 1 Sl No.: 53

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Corrected vide Chamber Order dated 05.08.2025

Sri. Chandrashekar v. Sri. V.K. Prakashan

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Sri. Chandrashekar v. Sri. V.K. Prakashan

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