IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MR.JUSTICE B.VEERAPPA. M.F.A.NO.20063/2011 (MV) C/w. M.F.A. CROB.NO.

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1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 04 TH DAY OF JANUARY, 2016 BEFORE THE HON BLE MR.JUSTICE B.VEERAPPA IN MFA NO.20063/2011 BETWEEN: M.F.A.NO.20063/2011 (MV) C/w. M.F.A. CROB.NO.839/2012 Bajaj Allianz General Insurance Co. Ltd., Belgaum through its Hubli Branch office, Represented by Law Officer, Bajaj Allianz General Insurance Co. Ltd., 4 th Floor, V.A. Kalaburagi Mension, Opp. Muncipal Corporation, Limington Road, Hubli Appellant (By Shri. M.K. Soudagar, Advocate) AND : 1. Shri. Pattreppa Rudrappa Hugar, Age: 40 years, Occ: Food grain & Agriculture, R/o. Siddasamudra, Tal: Bailhongal, Dist: Belgaum. 2. Shri. Chidanand S/o. Parameshwar Mudalagi,

2 : 2 : Age: 47 years, Occ: Business, R/o.H.No.209/B1, Vishnu Galli, M-Vadagaon, Dist:Belgaum..Respondents (By Shri. Jagadish Patil, Advocate) THIS MFA IS FILED UNDER SECTION 173 (1) OF THE M.V. ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED PASSED IN MVC NO. 1668/2006, ON THE FILE OF THE SENIOR CIVIL JUDGE, ASST. SESSIONS JUDGE, ADDL. MACT, BAILHONGAL AT BAILHONGAL, AWARDING THE COMPENSATION OF RS. 2,64,700/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT. IN MFA CROB NO. 839/2012 BETWEEN: Patreppa Rudrappa Hugar Age: 41 Years, Occ: Food Grain Buisness, R/o. Siddasamudra, Tq: Bailhongal, Dist: Belgaum.... Cross-Objector (By Sri. Jagadish Patil, Advocate) AND 1. Chidanand S/o. Parameshwar Mudalagi Age: Major, Occ: Business, R/o.H.NO. 209/B1, Vishnu Galli, M. Vadagaon, Belgaum.

3 : 3 : 2. The Bajaj Allianaz General Insurance Co.Ltd., Through its Divisional Manager, Divisional Office, Vivekanand Corner, Desai Cross, Club Road, Hubli... RESPONDENTS (R1 Notice dispensed with) THIS MFA CROB IN MFA NO /2011 FILED U/O. 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND AWARD DATED PASSED IN MVC NO. 1668/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, ASST. SESSIONS JUDGE, MEMBER ADDL. MACT, BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MFA AND CROSS-OBJECTION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: COMMON JUDGMENT The present appeal and cross-objection are arising out of the common judgment and award dated , passed by the Senior Civil Judge and Addl. MACT, Bailhongal (hereinafter referred to as the Tribunal, for short), awarding a compensation of Rs.2,64,700/- with interest at 6% p.a. in favour of the claimant in MVC No.1668/2006. The Insurance Company has preferred MFA No.20063/2011 for reduction of the compensation, whereas the

4 : 4 : claimant has preferred MFA Crob.839/2012 for enhancement of compensation. 2. The brief facts of the case are that, on at about p.m, when the respondent-claimant and another were standing on P.B. road near Kundgol cross, Hubli taluk, one Basappa Hugar, who was riding the motorcycle bearing No.KA-22/W-630 along with PW3 - S. S. Hugar as pillion rider, drew the vehicle negligently, with high deem light of the vehicle fell on the face of the Basappa Hugar, he lost control and dashed the motorcycle to the claimant and another, resulting in the claimant and another fell into a ditch along with the motorcycle, including the pillion rider in the same ditch, which was dug in order to widen the N.H.4. Due to the impact, the claimant and others suffered grievous injuries. The Hubli Rural Police have registered a case in Crime No.243/2005 against Basappa Hugar, the driver of the offending vehicle. The claimant and others took treatment in KIMS Hospital, Hubli and at Shakuntala Memorial Hospital and Research Centre, Hubli, by spending Rs.1,00,000/-.

5 : 5 : 3. The claimants preferred claim petition before the Tribunal claiming compensation against the Insurance Company and the owner of the offending vehicle. The respondent/claimant in this appeal is the claimant in MVC No.1668/2006. He claimed before the Tribunal that, as on the date of the accident, he was aged about 35 years and was doing the agriculture and food grain business. He used to earn Rs.6,000/- per month. In view of the injuries suffered in the accident, in spite of better treatment, the claimant suffered permanent disability. Hence claimed a compensation of Rs.10,00,000/- from the owner and insurer of the offending vehicle. 4. The respondents before the Tribunal filed objections denying the petition averments, accident, age, occupation, income and nature of the injuries sustained by the claimant. They sought for dismissal of the claim petition. 5. Based on the pleadings, the Tribunal framed the following issues: i. Whether the petitioners prove that the accident arose on at about pm near Kundagol cross,

6 : 6 : Hubli on P.B. Road, due to motorcycle No.KA-22/W- 630 and sustained grievous injuries by them? ii. iii. Whether the petitioners are entitled for compensation? If so at what extent and from whom? What order? 6. In order to establish his case, the claimant examined himself as PW2, examined the doctors as PW4 and PW5 and marked the documents at Exs. P1 to P196. The respondent - Insurance Company and the owner of the vehicle have not examined any witnesses, except producing Ex.R1 Insurance Policy. 7. After considering the entire materials on record, the Tribunal recorded a finding that the claimant herein have proved that the accident occurred on at pm near Kundgol cross, Hubli Taluk, on P.B. road, due to the negligent driving of the motorcycle bearing No.KA-22/W-630 and the claimants sustained grievous injuries in the accident and they are entitled for the compensation. Accordingly, the Tribunal held that the claimant herein is entitled to receive the compensation of Rs.2,64,700/- with

7 : 7 : current and future interest, at the rate of 6% p.a. Accordingly, the Tribunal awarded a sum of Rs.2,64,700/- to the claimant herein. Against the said judgment and award, MFA No.20063/2011 is preferred by the Insurance Company for reduction of the compensation and cross-objection No.839/2012 is filed by the claimant for enhancement of the compensation. 8. I have heard the learned Counsel for the parties to the lis. 9. Sri. M. K. Soudagar, learned Counsel for the Insurance Company has contended that the MACT has failed to notice that the injuries stated to be sustained by the claimant are not grievous injuries. The MACT ought to have awarded reasonable compensation towards the pain and suffering, loss of amenities and future unhappiness, instead of awarding exorbitant compensation under those heads. Therefore, he sought to set aside the impugned judgment and award passed by the MACT and sought for reduction of the compensation.

8 : 8 : 10. Per contra, Sri. Jagadish Patil, learned Counsel for the cross-objector/claimant, while supporting the judgment and award of the Tribunal, has contended that the Tribunal failed to notice that the claimant was doing food grain business and agriculture and he was earning Rs.6,000/- per month. The Tribunal erred in taking the income of the claimant at Rs.3,000/- per month, while calculating future loss of income, which is on the lower side and ought to have been enhanced. He also contended that the claimant has spent more than Rs.1,00,000/- towards medical expenses, but the Tribunal has awarded only Rs.52,900/-, which is on the lower side. Therefore, he sought for enhancement of the compensation. 11. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record. 12. The accident occurred on at about pm is not in dispute and it is also not in dispute that on account of the said accident, the claimant and others have suffered injuries. The claimant has examined himself as PW2 in support of his case and

9 : 9 : produced documents at Exs. P1 to P196. Ex.P7 is the wound certificate and Exs. 163 and 164 are the disability certificates. The doctors who was examined as PW4, denied the suggestion of the Insurance Company that the claimant never suffered any type of deformity as noted in the disability certificate and fracture on both right forearm have properly united. Another doctor, who was examined as PW5, has found that mild quadripariesis disability of 50% sensory ataxia-disability of 25% based on the manual and stated that the claimant has suffered physical disability of 62.5% to whole body. In the cross-examination, PW5 has categorically stated on oath that the patient is suffering with damages to the spinal card, i.e., cervical spine, he needs an expert s specialist s examination and opinion. He also stated that being a neuro surgeon, he is a competent and proper person to examine the patient and issue disability certificate. 13. Per contra, the Insurance Company has not examined any witnesses, nor produced any materials, except producing the Insurance Policy as Ex.R1, which was in force as on the date of the accident.

10 : 10 : 14. After considering the entire materials on record, the Tribunal has recorded a finding that, as per the medical records, the respondent-claimant had suffered fracture of right radius and ulna, compression fracture of L-5 vertebrae, dislocation of left elbow joint. He took treatment at KIMS hospital, Hubli and then took treatment at Shakuntala Memorial Hospital and Research Center, Hubli as an inpatient and underwent surgeries. The Tribunal has also recorded a finding that the respondents have not placed any evidence to rebut the evidence placed by the claimant regarding result of the treatment. However, the Tribunal recorded a finding that the petitioner walked in the court hall without facing any difficulties and held that, in view of the injuries suffered in the accident, in spite of better treatment, the claimant has suffered permanent physical disability at 10% to the whole body, and calculated the loss of future income by applying the multiplier 13 and taking the income of the claimant at Rs.3,000/- per month. The age of the claimant as on the date of the accident as per the medical records was 38 years. Accordingly, the Tribunal granted Rs.46,800/- towards loss of future earning capacity [(10% of 3000 x 12 x13 =

11 : 11 : 46,800/-). 15. Considering the nature of injuries suffered by the petitioner, nature of treatment, result of treatment and occupation of the petitioner, the Tribunal awarded the compensation under different heads as under: Pain and suffering Medicine and Hospital Charges Towards nourishment charges Attendant and conveyance charges Loss of income during treatment period Loss of future income Loss of amenities and future unhappiness Rs.80, Rs.52, Rs Rs.9, Rs.24, Rs.46, Rs.50, Total 2,64, Admittedly, in the present case, the claimant/crossobjector has not produced any material document to prove that his income was Rs.6,000/- per month and he will suffer loss from his business in future. In the absence of any material, the Tribunal is

12 : 12 : justified in taking his income at Rs.3,000/- per month as on the date of the accident. Though the doctor has assessed 62.5% as physical disability, while recording the evidence, the Tribunal noticed personally and recorded a finding that, when the claimant deposed in the Court hall, he walked without facing any difficulties. Therefore, the Tribunal has considered the physical functional disability at 10% to the whole body. Considering the entire materials on record, the Tribunal granted the compensation as per impugned judgment and award, which is based on the cogent material evidence on record. 17. Though the learned Counsel for the Insurance Company has sought to reduce the amount awarded by the Tribunal, mainly on the ground that awarding of Rs.80,000/- towards pain and suffering was exorbitant and also awarding of Rs.50,000/- towards loss of amenities and unhappiness is also contrary to law. The records reveal that the respondent claimant has suffered fractures and minor injuries, and he was inpatient in the hospital for 41 days and both the PW4 and PW5 - doctors examined on behalf of the claimant, specifically stated on oath that the claimant was suffering mild

13 : 13 : quadripadriesis disability of 50% and sensory ataxia disability of 25%. Accordingly the Tribunal has awarded the compensation in the impugned judgment and award is just and proper. No interference is called for. The appellant has not made out any ground to reduce the amount, while exercising the powers under the provisions of Section 173 (i) of the Motor Vehicles Act. 18. The claimant/cross-objector though filed the crossobjection for enhancement, he has not produced any material documents to prove that is income was Rs.6,000/- per month and to substantiate his claim for enhancement. In the absence of the same, the Tribunal is justified in awarding compensation of Rs.2,64,700/-. The same is in accordance with law. Therefore, no grounds are made out for reduction or enhancement of the compensation by the parties to the appeal. dismissed. Accordingly both the appeal and the cross-objection are

14 : 14 : The amount in deposit in MFA No.20063/2011 be transmitted to the Tribunal forthwith. gab Sd/- JUDGE