SRI KARAN SANJAY KAVILKAR v. THE DIVISIONAL MANAGER

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT

OF COMPENSATION.

THESE APPEAL AND CROSS OBJECTION ARE COMING ON

FOR ORDERS, THIS DAY, G BASAVARAJA, J., DELIVERED THE

FOLLOWING:

JUDGMENT

Both appeal and cross objection arise out of the Judgment and Award dated 03.06.2019 passed in MVC.No.2742/2010 passed by the X Additional District Judge and Member, Additional Motor Accident Claims Tribunal, Belagavi (for short, 'the Tribunal').

2. Parties herein are referred to as per their rank before the Tribunal for the sake of convenience.

3. The brief facts of the claim petition are as follows:

3.1. On June 9, 2010, at approximately 9:00 a.m., RW.1, Somalinga Virupakshappa Ganagi, the driver of the NWKRTC Bus with registration number KA-25/F-2483, was driving it on the Belagavi-Vengurla road, traveling from Chandagad to Belagavi at a high speed and in a rash and negligent manner. Near the Shirol check post, the bus collided with a motorcycle bearing Registration No.KA-

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22/EC-1630, which was traveling in the opposite direction on the same road. As a result of this forceful impact, the petitioner, who was riding the motorcycle, sustained severe head and lower limb fractures. The petitioner was 21 years old at the time of the accident and was assisting in his father's business at M/s. R.A.Kavalikar, Raviwar Peth, Belagavi, earning a monthly income of Rs.20,000/-. Due to the accident, the petitioner suffered permanent physical disability, specifically left-side hemiparesis, and has been living with significant residual disabilities. It is claimed that the petitioner lost his total earning capacity and incurred substantial medical expenses. Therefore, the claim petition seeks compensation in the amount of Rs.85,00,000/-, along with interest.

4. In response to the notice, the respondent filed a written statement, contending that on June 9, 2010, the KSRTC Bus in question was on its scheduled trip from Chandgad to Belagavi. While the bus was proceeding, approximately 200 meters away from the RTO Check post,

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a motorcycle being ridden by its rider approached from the opposite direction, traveling at a high speed in a rash and negligent manner. As a result, the motorcycle rider lost control and collided with the KSRTC Bus, which was moving uphill. The respondent denied the other allegations made in the claim petition and requested the dismissal of the claim petition with costs.

5. On the basis of rival pleadings, the Tribunal has framed the following issues:

1) Whether the petitioner proves that he has sustained injuries in the alleged accident caused on 09.06.2010 at about 09.00 a.m., while he was proceeding on Hero Honda Motor cycle bearing Reg.No.KA.22/EC-1630, Check Post, Shirol, on Belgaum-Vengurla road, due to the rash and negligent act of the driver of the N.W.K.R.T.C. Bus bearing Reg.No.KA.25/F-2483?

2) Whether the petitioner is entitled to compensation, if so for how much and from by whom?

3) What order or award?

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6. To prove the claim of the petitioner, petitioner has got examined his next friend, who is his natural father as PW.1 and two other witnesses as PWs.2 and 3 respectively and 55 documents were marked as Exs.P-1 to P-55. On closure of petitioner's side evidence, two witnesses were examined as R.W.1 and 2 and marked 08 documents as Ex.R.1 to 8. The tribunal has appointed a Neuro Surgeon working in K.L.E. Hospital, Belagavi as Court Commissioner to assess the physical disability of the petitioner pursuant to the application filed by the respondent. After submission of the report, the Commissioner has been examined as C.W.1 and three documents came to be marked as per Exs.C-1 to C3.

7. On hearing the arguments, the Tribunal has given its findings to the above issues as under :

Issue No.1: Does not survive for consideration. Issue No.2: Partly in the Affirmative. Issue No.3: As per the final order:

8. To substantiate the petitioner's claim, the petitioner presented his next friend, who is his natural

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father, as PW.1, along with two other witnesses as PWs.2 and 3. Additionally, they introduced 55 documents marked as Exs.P-1 to P-55 as evidence. Upon the conclusion of the petitioner's side of the evidence, two witnesses were presented as R.W.1 and R.W.2, and they submitted eight documents marked as Ex.R.1 to R.8. Furthermore, the tribunal appointed a Neuro Surgeon employed at K.L.E. Hospital in Belagavi to serve as a Court Commissioner for evaluating the petitioner's physical disability, following an application filed by the respondent. After the submission of the Commissioner's report, the Commissioner was examined as C.W.1, and three documents were marked as Exs.C1 to C3.

SUBMISSIONS ON BEHALF OF THE APPELLANT-NWKRTC:

9. Learned counsel, Sri M.K. Soudagar, representing the appellant-NWKRTC, argues that the judgment and award issued by the Tribunal are not in line with the evidence on record. The Tribunal allegedly failed to correctly interpret the disability certificate issued by Dr. Prakash Mahant Shetty, who assessed the overall body

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disability at 68%. Additionally, the Tribunal is said to have mistakenly assessed the disability at 100% concerning the loss of future earning capacity. Furthermore, it is claimed that the Tribunal made errors in determining the claimant's monthly income at Rs. 6,000 without sufficient evidence regarding the claimant's income source. Additionally, the Tribunal is said to have erroneously added 50% to this calculated income for future prospects, resulting in a compensation award of Rs.19,44,000/- under the loss of future earning capacity category. The Tribunal is also alleged to have awarded excessive compensation, including Rs.1,00,000/- for pain and suffering, Rs.50,000/- for loss of amenities of life, Rs.50,000/- for loss of expectancy of life, Rs.50,000 for loss of marriage prospects, and Rs.50,000/- for future medical expenses. Moreover, it is argued that since the injured petitioner passed away during the appeal's pendency, the appellants, as the legal representatives, are entitled only to loss of estate. In support of these arguments, the appellant relies on the decision of Uttam

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Kumar Vs. Madhav & Another, reported in ILR 2002

KAR 1864.

SUBMISSION OF LEARNED COUNSEL FOR CLAIMANTS.

10. As against this, learned counsel for Cross objectors-claimants has submits his arguments that claimants being the legal representatives of petitioner are entitled to seek enhancement of compensation as the Tribunal has not awarded just and proper compensation and further he submits that the decision relied on by the learned counsel for NWKRTC are not applicable to the case on hand in view of the decision passed by the Hon'ble Apex Court in Civil Appeal No.4800/2021, The Oriental Insurance Company Limited vs. Kahlon @ Jasmail Singh Kahlon and Another and sought for dismissal of the appeal filed by the NWKRTC and sought for allowing of the cross objection by enhancing the compensation.

11. Having heard the arguments on both sides and on perusal of the material on record, the following points would arise for our consideration:

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(1) Whether the appellant-NWKRTC has made out a ground to the effect that the legal representatives of deceased-Karan are entitled for compensation only to the loss of estate?

(2) Whether the appellant-NWKRTC has made out a ground to interfere with the impugned Judgment and Award passed by the Tribunal?

(3) What order or award?

12. Our answers to the above points are as under :

Point No.1 and 2 in negative.

Point No.3 as per the final order.

13. We have thoroughly reviewed the evidence presented in this case. There is no dispute regarding the occurrence of the accident, which was clearly the result of the driver of the NWKRTC bus bearing No.KA-25/F-2483 acting in a rash and negligent manner. The injuries sustained by the deceased, Karan, are also not in question. It is important to note that the accident in question took place on 09.06.2010, and Karan filed the claim petition with the Tribunal on 14.12.2010. During

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Karan's lifetime, the Tribunal issued its Judgment and Award on 28.05.2014, awarding compensation of Rs.31,82,000/- along with interest at 8% per annum. Both the Divisional Controller and Karan, the petitioner, were dissatisfied with this decision and subsequently appealed to this Court in MFA.No.102537/2014, which was consolidated with MFA.No.102261/2014(MV). After hearing the arguments, this Court issued an order on 28.06.2017, remanding the case to the Tribunal for a fresh determination of the compensation amount, considering the percentage of functional disability sustained by Karan. Following the court's instructions, the Tribunal recorded additional evidence presented by both parties and subsequently issued the impugned Judgment and Award on 03.06.2019. This award granted compensation of Rs.33,81,140/- with interest at 6% per annum from the date of the accident (i.e., 09.06.2010) until full realization.

14. In response to the impugned judgment and award, the Divisional Controller of NWKRTC filed

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MFA.No.104023/2019 on 22.10.2019, expressing dissatisfaction with the decision. Notice of this appeal was served to the sole respondent, but it was returned with a note indicating the respondent's status as 'deceased.' Subsequently, a legal representatives' application was filed and granted by this Court on 21.02.2023. Consequently, the legal representatives of the deceased, Karan, were officially recognized and brought onto the record. Following the issuance of notice, the legal representatives of the deceased appeared before this Court and also submitted Cross Objection No.100070/2023, requesting an enhancement of the compensation awarded.

15. It is an undisputed fact between the parties that during pendency of the appeal filed by NWKRTC, the injured-petitioner-Karan died on 12.05.2021.

16. A perusal of the full Bench Judgment of this Court in the case of Uttam Kumar's case (supra). The full bench of this Court has considered the provisions of Section 306 of the Indian Succession Act, 1925, Section

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166 of the Motor Vehicles Act, 1988 and the questions referred to the earlier full bench in the case of Kannamma Vs. Deputy General Manager, reported in ILR 1990 KAR 4300 and held as under :

13. After elaborate discussion and detailed Order, the Full Bench answered thus:

(i) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but

(ii) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939 by the person sustained bodily injuries in a also for compensation towards expenses, loss of income etc. (loss of estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased persons due to bodily injuries sustained in the motor accident."

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17. After passing this Judgment, in view of the report submitted by the Law Commission of Karnataka to amend Section 306 of the Indian Succession Act, 1925, Section 306 of the Indian Succession (Karnataka Amendment) Act, 2014 was amended. The amendment of Section 306 of the Indian Succession Act, 1925 reads as under :

"2. Amendment of section 306.- In section 306 of the Indian succession Act, 1925 (Central Act 39 of 1925),-

(a) the words, figures and brackets " assault, as defined in the Indian Penal Code (Central Act 45 of 1860) or other personal injuries not causing the death of the party" shall be omitted;

(b) in the illustration, clause (i) and entries relating thereto, shall be omitted."

18. Keeping in mind the aforesaid amendment to provisions of Section 306 of the Indian Succession Act, 1925 and also keeping in mind the decision in Karlon @ Jashmail Singh's case supra, absolutely there is no bar to the legal representatives of the deceased-Karan to claim the compensation awarded by the Tribunal and also for

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enhancement of the compensation. Hence, we answer point No.1 in negative.

19. The Tribunal has awarded the compensation on the following heads :

20. The Tribunal extensively examined the disability suffered by the injured party, Karan, taking into consideration medical evidence and the physical disability certificate. Additionally, the evidence of the Court

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Commissioner, a Neuro Surgeon from KLE Hospital, Belagavi, who was called as a witness (CW.1), was considered. Based on these assessments, the Tribunal awarded the compensation mentioned above, which appears to be reasonable and in compliance with both the law and the factual circumstances.

21. Upon re-evaluating the evidence on record, we find no legal deficiencies or irregularities in the compensation awarded by the Tribunal. Furthermore, the legal representatives of the deceased, Karan, have not presented any compelling grounds for an increase in compensation. Therefore, we respond to point No.2 in the negative.

22. In light of the above discussion and reasoning, we hereby issue the following order:

O R D E R

(i) Both appeal and cross objection are dismissed.

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(ii) Amount deposited in MFA.No.104023/2019 shall be transmitted to the concerned Tribunal forthwith.

(iii) Send back LCR forth with. Sd/-

JUDGE

Sd/-

JUDGE

ckk

List No.: 1 Sl No.: 24