Shivasharan Bhimappa Jogur vs Rachappa Basappa Kalakeri

Mrs. S. Sujatha, J.—The appeal and cross objections are directed against judgment and award passed by the Motor Accident Claims Tribunal, Bijapur in MVC No. 950/2012.

The facts of the case in brief are :

� that the claimant had sought for compensation contending that he had met with the road traffic accident, due to the rash and negligent driving of the vehicle bearing registration KA-28/M-6438, while he was proceeding on the motorcycle bearing registration No. KA-28/L-8656, on Bijapur to Indi road towards Aliyabad. The Tribunal after considering the evidence on record awarded the compensation of Rs. 1,48,700/- with interest at 6% per annum, exonerating the insurer and fastening the liability on the appellant/owner. The appellant preferred Cvl. Misc. No. 35/2013 before the II Additional District Judge, Bijapur, under Order 9, Rule 13 of CPC, for setting aside the ex parte judgment and award passed in MVC No. 950/2012 dated 24-04-2013. The learned Judge after extensively considering the evidence on record, dismissed petition. Feeling aggrieved, the appellant/owner is before this Court.

The learned counsel appearing for the appellant/owner would contend that the appellant was served with the notice and he had engaged the services of an Advocate by name Sri. Y.B. Yechhi. The appellant was under a bona fide impression that the matter was properly contested before the Tribunal. It is contended that after receiving the notice from Sri T.D. Vambasje Advocate and on perusal of the said notice, it came to the knowledge of the appellant that the claim petition in MVC No. 950/2012 was allowed on 24-4-2013 fastening the liability on the owner. Thereafter, on enquiry, it was noticed that Advocate Sri. Y.B. Yechhi had expired. Since, the death of the learned counsel Sri Y.B. Yechhi was not within the knowledge of the appellant/owner, the case was not represented by the appellant. The appellant was placed ex parte and the Tribunal has fastened the liability on the owner in violation of the principles of natural justice, not providing adequate opportunity to the appellant/owner to defend the case. Accordingly, the learned counsel seeks to provide an opportunity to defend his case as the non-appearance before the Tribunal was due to the bona fide reason and not for any negligence.

Per contra, the learned counsel appearing for the claimant who is the cross objector, seeks enhancement of the compensation awarded by the Tribunal. The learned counsel contends that the Tribunal has determined the monthly income of the injured/claimant at Rs. 4,500/- which is on lower side. He would contend that this Court is normally adopting monthly income of Rs. 6,500/- to a victim of the road traffic accident of the year 2012, even in the absence of any adequate proof/evidence to establish the exact income. Accordingly, he seeks to adopt the monthly income of the claimant at Rs. 6,500/-. It is further contended that the compensation awarded under the different heads is grossly inadequate.

Heard the rival submissions of the parties and perused the material on record.

It is discerned from the records that the appellant/owner had not appeared before the Tribunal despite notice was duly served on him. The Tribunal placed the appellant ex parte and proceeded to adjudicate the matter. After considering the evidence available on record awarded the compensation and fastened the liability on the appellant/owner. Subsequent to the passing of the judgment and award of the Tribunal, the appellant had approached the Additional District Judge, Bijapur in Civil Misc. No. 35/2013 to set aside the ex parte judgment and award passed in MVC No. 950/2012 dated 24-4-2013, contending that the appellant had engaged an Advocate by name Sri. Y.B. Yechhi and the said counsel had filed power before the Tribunal. The learned District Judge after considering the evidence and perusing the records, has given a finding that the appellant has not put in his appearance nor his learned Advocate Sri. Y.B. Yechhi has filed any power on behalf of the appellant. The records reveals that though, the vehicle involved in the accident had insurance coverage but the driver of the vehicle Ravi Jadhav had no valid and effective licence to drive a particular car, involved in the accident which is clear from Ex. R2, marked in the original proceedings. In such situation, the plea taken by the appellant that he had put in appearance in the original proceedings through his Advocate and he could not prosecute the matter since, his Advocate had expired were not acceptable pleas, contrary to the material on record. In the given circumstances, the Tribunal held that no purpose would be served in recalling the judgment and award passed by the Tribunal in MVC No. 950/2012 and accordingly, dismissed the miscellaneous petition. I do not see any merit in this appeal to interfere with the well reasoned order passed by the District Court in rejecting the miscellaneous petition. The judgment and award passed by the Tribunal in fastening the liability on the appellant/owner is justifiable. Accordingly, the arguments advanced by the learned counsel for the appellant deserves to be negated.

As regards, the cross objections, the Tribunal has determined the monthly income of the claimant/injured at Rs. 4,500/-. It is beneficiary to refer to the normal method adopted by this Court, while determining the monthly income of a victim of the road traffic accident of the year 2012 wherein this Court is adopting the monthly income at Rs. 6,500/-. Applying the same yardstick, the loss of future income deserves to be modified. Thus, the loss of future income would work out to Rs. 1,01,400/-. Similarly, the loss of earning during laid up period requires to be modified to Rs. 19,500/- applying the monthly income of Rs. 6,500/-. In all other respects, the quantum of compensation awarded by the Tribunal remains undisturbed. In the result, the claimant is entitled for total compensation of Rs. 1,85,900/- as against Rs. 1,48,700/- awarded by the Tribunal. The amount awarded shall carry interest at 6% per annum from the date of the petition till the date of realisation.

The appellant/owner is liable to pay the compensation amount to the claimant.

In the result, the appeal filed by the appellant/owner is dismissed and the cross objections filed by the claimant is allowed to the extent indicated above.

The amount in deposit, if any, shall be transmitted to the jurisdictional Tribunal.