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2008 Supreme(Kar) 526
2011 (4) KCCR 2868
High Court of Karnataka (Circuit Bench At Dharwad)
B.V. NAGARATHNA
Kumar Pramod Kurdikeri
Versus
The Police Commissioner Hubli Dharwad & Another
M.F.A.NO.2200 of 2008
Decided on: 27-08-2008
For the Petitioner:H.M. Dharigond, Advocate.
For the Respondents: R1 & R2 - D.N. Kulkarni, HCGP.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 163-A & Second Schedule: [Mrs. B.V.Nagarathna, J] Determination of compensation - Non-earning member - Held, Under Schedule II to the M.V. Act in the context of Section 163-A while determining quantum of compensation even in respect of non-earning persons, a sum of Rs.15,000/- is the notional income per annum, there is no reason why the same standard cannot be applied in the instant case where there was no evidence with regard to the income earned by the appellant. Taking Rs.15,000/- as the notional income of the appellant and by applying proper multiplier of the compensation on the head of loss of future income would now be enhanced to Rs.67,500/- instead of Rs.54,000/-. The said enhanced amount of Rs.13,500/- shall carry interest at the rate of 6% p.a. from the date of claim petition till realisation. On such deposit being made, the same shall be released to the appellant.
MOTOR VEHICLES ACT, 1988 - Section 173: [Mrs. B.V.Nagarathna, J] Appeal to High Court against award of the Tribunal - Question whether the claimant can maintain an appeal independently when the appeal filed by respondent is dismissed? Held, Where the appeal is rejected at the stage of admission and there was no opportunity for the Court to consider the case from the point of view of the claimant contesting or challenging the award made by the Tribunal. This Court while dealing with MFA No. 11758 of 2007 was only examining as to whether the award amount was exorbitant from the point of view of the respondent herein, this Court did not apply itself to the question as to whether there was scope for enhancement of the compensation. Obviously, in the appeal filed by the respondent, the appellant who was the respondent in that appeal could have only supported the judgment and award of the Tribunal in the absence of any independent appeal or cross-objections referred to above and the provisions of Section 173 of the M.V Act recognising the right of every aggrieved person to file an appeal, mere dismissal of an appeal filed by one of the parties to an original proceeding cannot be a bar to the other party to maintain an independent appeal. The dismissal of an appeal only affirms the order of the Tribunal. There is no substitution of an order of High Court modifying the order of the Tribunal. Therefore, the other party aggrieved by the order of the Tribunal can always challenge the orders of the Tribunal.
1. This appeal is filed by the injured/claimant challenging the Judgment and Award passed in MVC.No.530/2002 on the file of the Prl.Civil Judge (Sr.Dn) and Addl.Mact, Hubli dated 25.5.2007 seeking enhancement of compensation.
2. The relevant facts of the case are that on 18.6.2002 the claimant was riding his bicycle on P.B.Road, Hubli, when the driver of the respondent vehicle bearing No.KA-25/G-91 came in a rash and negligent manner and dashed against the claimant, as a result he sustained injuries and he was shifted to hospital. Contending that he had suffered permanent disability, he filed the claim petition seeking compensation on various heads.
3. On receipt of notice from the Tribunal, the respondents appeared and filed their statement of objections denying the averments of the claim petition and seeking dismissal of the same.
4. Based on the above pleadings, the Tribunal framed the following issues;
5. In support of his case the claimant examined himself as PW.1 and Dr. Madiwalappa Barigidada as PW.2 and eyewitness PW.3 and got marked Ex.P1 to P10 while the respondent did not let in any evidence except getting the insurance policy marked as Ex.R1. On the basis of the above material the Tribunal granted 1,92,735/- with interest at the rate of 8% p.a. from the date of claim petition till deposit. Not being satisfied with the Judgment and Award the claimant has preferred this appeal seeking enhancement of compensation.
6. I have heard Sri.H.M.Dharigund, learned counsel for the appellant and Sri.D.N.Kulkarni for respondent.
7. The only contention raised on behalf of the appellant is that the Tribunal has awarded meager compensation of Rs.54,000/- on the head of loss of future earning by taking the annual income of the appellant at Rs.12,000/- whereas even in accordance with the Motor Vehicles Act, the notional income i.e., normally taken in the absence of evidence is Rs.15,000/-p.a and therefore, by taking Rs.15,000/- as notional income, compensation may be enhanced on the head of loss of future earning capacity.
8. Per contra, it is submitted by the learned counsel for the respondent that the appeal itself is not maintainable in as much as the respondent had filed MFA.No.11758/2007 which was dismissed at the stage of admission by this court by order dated 3.1.2008 and that the appellant in this case had been notified and therefore having responded in the said appeal as a respondent, the appellant cannot maintain an independent appeal challenging the Judgment and Award of the Tribunal. It is further submitted that on account of principle of res-judicata and doctrine of merger create a bar on the appellant to maintain this appeal. Hence he submits that the appeal be dismissed on the preliminary ground of maintainability. He further submits that the Judgment and Award passed by the Tribunal was exorbitant and the same was challenged by the respondent in MFA.No.11758/2007 and now that the appeal of the respondent was dismissed. The judgment and award does not require any modification.
9. Based on the above submission the following points arise for my consideration:
“1. Whether the claimant can maintain an appeal independently when the appeal filed by the respondent is dismissed?
2. If the answer to point No.1 is in the affirmative, whether the Judgment and Award requires any modification in terms of the quantum of compensation?”
10. Section 173 of the Motor Vehicles Act, 1988 reads as follows:
“(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court;
Provided further that the High Co
