SHRI. KARYAPPA NINGAPPA KORAVI v. SHRI JYOTIBA KALLAPPA HURUDE

(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This appeal is filed challenging the judgment and award dated 19.01.2017 passed in MVC No.895/2016 by the XI Addl. District and Sessions Judge and Addl. MACT, Belagavi at Belagavi (hereinafter referred to as ‘Tribunal’, for short), wherein petition filed by the appellant – injured under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V. Act’, for short) was rejected.

#2. Brief facts leading to filing of this appeal are that on

16.02.2016 at about 7:00 a.m., the petitioner was proceeding on motorcycle bearing registration No.KA-22/EF-8132 as a pillion rider and Sri Anil Shindhe was rider of the said motorcycle. It is averred that when they reached near Udupi Dhaba on Halga service road, Belagavi, the rider of the motorcycle rode the same in rash and negligent manner. At that time, one dog came across the road, suddenly the rider - 3 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR applied the brake due to which the motorcycle skidded and petitioner fell down along with the motorcycle. Due to the impact, he sustained fracture to his right hand. Thereafter, he was immediately shifted to the Vijaya Hospital, Belagavi and provided treatment.

#3. It is averred that the petitioner – injured was aged about 22 years and working as a coolie in bricks factory and earning ₹13,000/- per month and due to the accidental disability, he is unable to continue the work. Hence, he filed a petition under Section 166 of the M.V. Act seeking compensation.

#4. Respondent No.1 filed objections to the claim petition contending that the vehicle involved in the accident is duly insured by respondent No.2 and if any liability, respondent No.2 has to make good of the same. Respondent No.2/Insurance Company filed separate objections denying the averments of the claim petition. They have denied the accident, age, avocation and income of the petitioner. It is averred that there is one day delay in filing the complaint and the rider of - 4 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR the motorcycle was not having valid driving licence. Hence, sought for dismissal of the claim petition.

#5. The Tribunal recorded the evidence, the claimant examined himself as PW.1 and examined the Doctor as PW.2 and got marked 14 documents at Ex.P.1 to P.14. The respondent No.2 examined its official as RW.1 and got marked one document at Ex.R.1. The Tribunal considering the pleadings and evidence on record came to a conclusion that there is one day delay in lodging the complaint with regard to the accident. The Tribunal further recorded the finding that there is a variation with regard to the stand of the appellant in the Police complaint and the medical records which does not tally with each other and came to a conclusion that the Police documents could not corroborate with the documents on record. Hence, held that the claimant has failed to prove the case of accidental injuries and rejected the claim petition. Being aggrieved, the injured claimant/ appellant filed this appeal.

#6. Learned counsel Sri. Harish S. Maigur appearing for the appellant submits that the Tribunal has committed a grave error in recording the incorrect findings. It is submitted that on - 5 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR

16.02.2016 immediately accident, claimant/injured was admitted at Vijaya Hospital, Belagavi and provided treatment. The Ex.P.6 to P.10 clearly demonstrate that the petitioner has sustained grievous injury to his four fingers of the right hand in the road accident dated 16.02.2016. It is submitted that the petitioner was provided treatment at Vijaya Hospital, Belagavi. Hence, immediately on the said date of the incident, the complaint could not be registered and on the next day, the brother of the injured reported the accident to the jurisdictional Police and on investigation, the Police filed chargesheet against the rider of the motorcycle. It is submitted that the Tribunal has not appreciated the oral and documentary evidence on record in its proper perspective and recorded the incorrect finding and dismissed the claim petition. It is submitted that due to the accidental injury, the appellant sustained amputation of four fingers of the right hand. Hence, as per schedule-I of the Employees’ Compensation Act, 1923, the appellant’s disability is required to be assessed at 50% and he is entitled for compensation under the head of loss of future prospects also. It is further submitted that Ex.P.49 indicates that the appellant has spent ₹1,27,643/- towards the medical - 6 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR expenses and he has suffered pain and suffering due to the accident. Hence, he seeks to allow the appeal by awarding just and fair compensation.

#7. Learned counsel Sri. Subhash J. Baddi appearing for respondent No.2 supports the impugned judgment and award of the Tribunal and submits that Ex.P.2/the complaint indicates that the appellant sustained burnt injury to his three fingers of right hand and however, the medical records produced by him before the Tribunal refers to the injury to his four fingers and also indicate that four fingers of the appellant’s right hand has been amputated. There is lot of discrepancies between the first version of the appellant in the complaint at Ex.P.2 and other medical records. It is further submitted that there is one day delay in filing the complaint to the Police with regard to the accident. However, no satisfactory explanation is offered for such delay, which has created the doubt in the mind of the Tribunal with regard to the accident and the injuries sustained by the appellant and appreciating such fact, the Tribunal has rightly dismissed the claim petition which does not call for any - 7 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR interference in this appeal filed by the injured/claimant. Hence, he seeks to dismiss the appeal.

#8. We have heard the arguments of the learned counsel for the appellant and learned counsel for the respondent No.2/Insurance Company and meticulously perused the materials available on record, including the Tribunal record.

#9. We have given our anxious consideration to the submissions advanced. The points that would arise for our consideration in this appeal are;

#1. Whether the Tribunal has justified in dismissing the claim petition filed by the injured/appellant under Section 166 of the M.V. Act?

#2. If the claim petition of the appellant is allowed, what is the compensation entitled by the injured/appellant?

#10. The appellant has filed a claim petition under Section 166 of the M.V. Act seeking for compensation for the injuries suffered by him in a road accident dated 16.02.2016 near Udupi Dhaba on Halga Service road, Belagavi. In support - 8 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR of his claim, the appellant examined himself as PW.1 and reiterated the averments made in the plaint. The records indicate that the brother of the appellant has filed a Police complaint which is marked at Ex.P.2 at Hirebagewadi Police Station on 17.02.2016, the jurisdictional Police registered FIR in Crime No.60/2016 for the offences punishable under Sections 279 and 338 of IPC against the rider of the motorcycle. The jurisdictional Police after completion of the investigation, has filed the chargesheet against the rider of the motorcycle for the negligent riding of the motorcycle. It is not in dispute that there is a delay in registering the complaint with the jurisdictional Police. The accident in question was occurred on 16.02.2016 in between 7 to 8 AM, the complaint at Ex.P.2 was registered on 17.02.2016 i.e., one day after the incident. The complaint/Ex.P.2 on record indicates that the brother of the injured has furnished the said information to the Police and the Police recorded the FIR and in the complaint, it is written that the appellant has sustained burnt injury to his three fingers. Be that as it may, Ex.P.6/the wound certificate issued by the Vijaya Hospital, Belagavi indicate that the appellant was examined by the duty Doctor on 16.02.2016 at 8:03 AM. The - 9 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR said document/Ex.P.6 also indicate that the appellant was admitted to the Hospital informing that the alleged history of road traffic accident near Halga Service road around 7:00 AM. The wound certificate indicates that the appellant has sustained burnt injury to his four fingers except thumb. Ex.P.7/the discharge summary corroborates with the contents of Ex.P.6/wound certificate with regard to the date of accident and the nature of injuries suffered by the appellant. Ex.P.8 to P.10 also indicates that the appellant has sustained injury to his four fingers of right hand and those fingers were amputated. In support of the claim, the appellant has produced the photographs at Ex.P.11 which clearly shows that the right hand’s four fingers of the appellant are amputated after performing surgery at Vijaya Hospital, Belagavi.

#11. Considering the oral and documentary evidence on record, we are of the considered view that the Tribunal has committed a grave error in coming to the conclusion that there is a discrepancy in the Police record and the medical record with regards to the road traffic accident. The oral evidence of PW.1/injured, Ex.P.1 to P.9 clearly demonstrate that the - 10 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR appellant has met with a road accident on 16.02.2016 provided treatment at Vijaya Hospital, Belagavi and his four fingers were amputated. The Tribunal has given much weightage to the fact that there is a delay in registering the complaint. In our considered view, the Tribunal has committed a grave error in recording such finding. The records indicate that admittedly the appellant/injured was admitted in the Hospital after the accident and he was taken treatment as an inpatient and his brother has lodged the complaint on very next day. The very same fact demonstrates that delay is natural as injured was hospitalized hence delay in registering the FIR which cannot be held against the injured/appellant. Hence, we are of the considered view that the Tribunal has committed a grave error in ignoring the oral and documentary evidence in dismissing the claim petition which is required to be allowed and the respondent No.2 insurance company being the insurer of the vehicle in question is liable to pay the compensation.

#12. The pleadings and evidence on record, indicate that the appellant/injured was aged about 22 years and it was claimed that he was earning ₹15,000/- per month. However, - 11 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR there is no cogent and legally acceptable evidence on record. This Court and the Lok-Adalaths normally place reliance on the notional income chart prepared by the Karnataka State Legal Services Authority to assess the income in the motor vehicle accident claims. In the instant case, the accident is of the year 2016 and as per the chart referred to supra, the notional income of the injured is required to be assessed at ₹8,750/- per month. Accordingly, this Court assesses the income of the injured at ₹8,750/- per month.

#13. Schedule 1(2) serial No.7 of the Employees Compensation Act, 1923 states that for loss of four fingers of one hand 50% of loss of earning capacity should be considered. Considering the aforesaid schedule and taking note of the documentary evidence on record, we assess the disability of the appellant at 50%. Having assessed the disability at 50%, we are of the considered view that the appellant is also entitled the compensation under the head of loss of future prospects at 40% as held by the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others1. 1 2017 (16) SCC 680 - 12 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR Hence, the loss of income due to disability is assessed as under; ₹8,750+40%x12×18×50% = 13,23,000/-.

#14. The records indicate that the appellant was taken treatment as an inpatient for a period of 9 days and undergone surgery and suffered amputation. Considering the age, nature of treatment proved, we are of the considered view that the appellant is entitled compensation of ₹50,000/- under the head of pain and suffering and ₹50,000/- under the head of loss of amenities. The appellant was inpatient for a period of 9 days and thereafter, he required substantial period to recover from the injuries suffered by him, hence we award ₹26,250/- under the head of loss of income during laid up period [8,750/-x3 months]. The appellant is entitled to ₹10,000/- under the head of diet, conveyance and attendant charges. Ex.P.13 is the medical bills which are 49 in numbers, if that is calculated, the appellant has spent ₹94,643/- towards the medical expenses.

#15. Thus, the claimant is entitled for compensation under the various heads: - 13 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR Pain and suffering 1 2 Loss of amenities 3 Medical expenses 4 future earning Loss of due to disability Loss of income during laid up period capacity conveyance attendant 5 6 Diet, ₹ 50,000/- ₹ 50,000/- ₹ 94,643/- ₹ 13,23,000/- ₹ 26,250/- ₹ 10,000/- charges TOTAL ₹ 15,53,893/- Thus, the claimant would be entitled for the total compensation of ₹ 15,53,893/-.

#16. Normally, this Court and the Hon’ble Apex Court taking note of prevailing rate of interest paid on the fixed deposit by the nationalized banks, would award interest at 6% per annum. Therefore, in the present case also, the claimant is entitled to interest on the compensation amount at the rate of 6% per annum from the date of petition till its realization. Hence, we proceed to pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment dated 19.01.2017 passed by the XI-Additional District and Sessions Judge and Additional MACT, - 14 - NC: 2025:KHC-D:9353-DB MFA No. 102293 of 2017 HC-KAR Belagavi, in MVC No.895/2016, is hereby set aside, the claim petition in MVC No.895/2016 is allowed and the appellant is entitled compensation ₹15,53,893/- along with interest at the rate of 6% per annum from the date of petition till date of payment. iii. Respondent No.2/Insurance Company shall deposit the compensation amount within a period of eight [8] weeks before the Tribunal. iv. Registry to transmit the records to the Tribunal forthwith. v. Draw the award accordingly. Sd/- (S.SUNIL DUTT YADAV) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE CLK, PJ-para 5 to end CT-AN List No.: 1 Sl No.: 65