The Tribunal has not taken into consideration the disability factor in a proper perspective: High Court of Karnataka

 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 8TH DAY OF SEPTEMBER 2021 THE HON’BLE MR. JUSTICE V. SRISHANANDA MFA NO.22203 2009 c w MFA CROB NO.792 2010IN MFA NO.22203 2009: ARJUN MALLAPPA HADAPAD AGE:30 YRS OCC:STUDENT AND AGRICULTURE R O VASAN TQ:NARAGUND DIST. GADAG BY SRI. D B KARIGAR ADV.) 1 . ARJUN PARAPPA HADAPAD AGE:25 YRS OCC:STUDENT AND AGRICULTURE R O JUNIPETH RAMDURG DIST. BELGAUM AND ANOTHER 2 . THE NATIONAL INSURANCE CO.LTD RENUKA ARCADE STATION ROAD GADAG 532101 THROUGH ITS DIVISIONAL OFFICE AT RAMDEV GALLI BELGAUM BY SRI.H.M. DHARIGOND ADV. FOR R1 SRI.RAVINDRA A. CHOUGULE ADV. FOR R2) THIS MFA IS FILED U S 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED: 24 03 2009 PASSED IN M.V.C.NO.2813 2003 ON THE FILE OF THE LEARNED CIVIL JUDGE SR.DN) AND ADDITIONAL M.A.C.T. RAMDURG PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. 2 IN MFA CROB NO.792 2010: ARJUN PARAPPA HADAPAD AGE: 26 YEARS OCC: AGRICULTURE R O JUNIPETH RAMDURG TQ: RAMDURG DISTRICT : BELGAUM BY SRI. H M DHARIGOND ADV.) 1 . ARJUN MALLAPPA HADAPAD CROSS OBJECTOR AGE: MAJOR OCC: AGRICULTURE R O VASAN TQ: NARAGUND DIST: GADAG 2 . THE NATIONAL INSURANCE CO.LTD RENUKA ARCADE STATION ROAD GADAG 532101 THROUGH ITS DIVISIONAL OFFICE AT RAMADEV GALLI BELGAUM BY SRI.P.G.CHIKKANARAGUND ADV. FOR SRI.C.R.MENASINAKAI ADV. FOR R1 SRI.RAVINDRA A. CHOUGULE ADV. FOR R2) THIS MFA CROB. IS FILED U O 41 RULE 22 R W. SEC. 151 OF CPC AGAINST THE JUDGMENT AND ORDER DATED: 24 03 2009 PASSED IN MVC.NO.2813 2003 ON THE FILE OF THE CIVIL JUDGE SR.DN.) & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL RAMDURG PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MFA AND MFA CROB COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLOWING: 3 Heard Sri.D.B.Karigar and Sri.H.M.Dharigond. The owner of the offending vehicle and the claimant have filed this appeal and the cross objection challenging the validity of the judgment and award passed in MVC No.2813 2003 on the file of the Addl. MACT Ramadurga dated 24.03.2009. The brief facts of the case are as under: A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that on 07.05.2013 at about 09 a.m. when claimant and his brother was proceeding to their land on Vasan Konnur road for their agricultural operation at that juncture when they reached near the land of Huligeri driver of a tractor bearing No.KA 29 T 7084 drove the tractor in a rash and negligent manner and dashed against the claimant whereby he fell down and sustained fracture of shaft of 4 femur and other injures and he was shifted to the government hospital at Ramdurga and then he took treatment in the private hospital and therefore sought for awarding suitable compensation. The claim petition was resisted by filing written statement. The Tribunal raised necessary issues and after considering the oral and documentary evidence on record allowed the claim petition in a sum of Rs.87 000 . Sri.D.B.Karigar learned counsel appearing for the owner of the tractor vehemently contended that the accident as contended by the claimant has not at all happened and the Tribunal has not looked into the oral and documentary evidence in its proper perspective and unnecessarily saddled the liability on the owner of the tractor and prayed for allowing the appeal. He also contended that the quantum of compensation awarded by 5 the Tribunal is on the higher side and therefore sought for reducing the quantum of compensation. Per contra Sri.H.M.Dharigond learned counsel for the claimant contended that the Tribunal has not taken into consideration the disability factor in a proper perspective and so also monthly income and sought for reasonable enhancement. In view of the rival contentions of the parties the following points that would arise for consideration are: “1. Whether the owner of offending tractor bearing No.KA 29 T 7084 makes out a case for dismissal of the claim petition or in the alternative to reduce the quantum of compensation 2. Whether the claimant has made out a case for enhanced compensation ” In the case on hand the accidental injuries sustained by the claimant Sri.Arjun Parappa Hadpad on 07.05.2003 at about 09.00 a.m. involving the tractor 6 bearing No.KA 29 T 7084 stands established by the oral and documentary evidence on record. The medical evidence clearly establish that there is a fracture of shaft of right femur to the extent of 1 3rd and the claimant has sustained physical disability as per the disability certificate marked at Ex.P7. The material available on record also depict that in respect of the accident initially there was a panchayat convened and in the panchayat there was a decision as to the appropriate quantum of compensation to be paid. However the owner of the tractor having failed to adhere to the settlement terms of the panchayat the claimant was constrained to approach the Tribunal. One of the panchayatdaars is also examined before the Court as PW.3. He categorically deposed about the accident and the panchayat being convened in respect of the compensation to be paid and settlement terms. On behalf of the owner of the tractor though PW3 7 has been cross examined at length no useful material is elicited so as to establish that there was no accident at all. Tribunal after taking note of all these aspects of the matter held that Arjun Hadpad sustained accidental injuries on account of the rash and negligent driving of the tractor. Admittedly the tractor did not have insurance at all as on the date of the accident. Therefore the liability fasted on the owner of the tractor. 10. Insofar as quantum of compensation concerned Tribunal has taken into consideration the principles of law existed for computing the quantum of compensation as on the date of passing the award and awarded a sum of Rs.87 000 . 11. Having regard to the only one fracture being suffered and only 10% disability is there for the particular limb that too assessed by a non treating Doctor this Court is of the considered opinion that the quantum of 8 in a sum of Rs.87 000 compensation in the facts and circumstances of the present case. Accordingly no case is made out for the enhancement of the compensation. Hence point Nos.1 and 2 are answered in negative and the following order is passed. MFA No.22203 2009 and MFA CROB No.792 2010 are hereby dismissed. Amount in deposit if any is ordered to be transmitted to the Tribunal. Balance amount is to be deposited by the owner within a period of four weeks from the date of receipt of certified copy of this order. Rsh Sd 

Summary: The medical evidence clearly established that there was a fracture of the shaft of the right femur and the claimant had sustained physical disability as per the disability certificate. The Hon’ble High Court of Karnataka, Dharwad Bench before the Hon’ble Mr. Justice Srishananda held such in the matter of Arjun Mallappa Hadapad vs. Arjun Parappa Hadapad and Another [MFA No. 22203/2009 c/w MFA CROB No. 792/2010(MV)]. The facts of the case were associated with the owner of the offending vehicle and such an appeal and cross-objection was filed by the claimant and challenged the judgment. Under Section 166 of the Motor Vehicles Act, the claimant submitted that on 7th May 2013 around 9 AM, the claimant and his brother was going to their land on Vasan Konnur road for their agricultural operation, close to the land of Huligeri at the juncture, a tractor driver rashly drove the tractor in a negligent way and crashed against the claimant. This accident injured the shaft of his femur. The claimant sought compensation for this. After considering the oral and documentary evidence, necessary issues were raised by the Tribunal allowed to claim petition in a sum of Rs 87000. The learned advocate, Sri D.B Karigar, representing the owner of the tractor, argued that the said accident as claimed by the claimant did not happen at all and also no oral or any documentary evidence was looked upon by the Tribunal. The liability was unnecessarily saddled on the owner of the tractor and prayed to allow the appeal. On the other hand, the learned counsel, Sri H.M. Dharigond, representing the claimant submitted that the disability factor was not taken into deliberation as well as the monthly income of the claimant by the Tribunal.  The Hon’ble Court held that the available material on record depicted a panchayat was summoned initially and the panchayat decided about the appropriate compensation amount. However, the tractor driver failed to obey the settlement terms of the panchayat. After the notes of all these were taken, the Tribunal held that the claimant Arjun Hadpad sustained accidental injuries due to the rash and negligent driving of the tractor. Therefore, the owner of the tractor was liable.  The Hon’ble High Court of Karnataka, Dharwad Bench before the Hon’ble Mr. Justice Srishananda ruled out that “ … Having regard to the only one fracture being suffered and only 10% disability is there for the particular limb that to assessed by a non-treating doctor, this court is of the opinion that the quantum of compensation is a sum of Rs 870000/- is just compensation in the facts and circumstances of the present case. Accordingly, no case is made out for the enhancement of the compensation. Hence point Nos.1 and 2 are answered in negative… MFA No. 22203/2009 and MFA CROB No, 792/20010 are hereby dismissed.”