Karnataka High Court
Krishnaprasad vs Shekar on 10 September, 2024
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NC: 2024:KHC:36920
MFA No. 5480 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.5480 OF 2021(MV-I)
BETWEEN:
KRISHNAPRASAD,
S/O LATE THIMMEGOWDA,
AGED ABOUT 35 YEARS
R/AT UDDURU VILLAGE,
KASABA HOBLI, HASSAN TALUK,
HASSAN DISTRICT- 573 201
...APPELLANT
(BY SRI. GIRISH B BALADARE, ADVOCATE)
AND:
1. SHEKAR S/O GIRIYAPPA GOWDA,
NO.28, 1, MAIN ROAD, K.H.B.
COLONY, CHIKKAMAGALORE-577 101.
Digitally signed by 2. THE MANAGER, UNITED INSURANCE COMPANY LTD.,
AASEEFA PARVEEN
Location: HIGH
BRANCH OFFICE, VENKATESHVARA BUILDING,
COURT OF GANDHI CIRCLE, HASSAN-573 201.
KARNATAKA
...RESPONDENTS
(BY SRI. B.S. KRISHNA, ADVOCATE FOR R2;
R1 - SERVED, UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.11.2019 PASSED IN MVC
NO. 1676/2018 ON THE FILE OF THE 5TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
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NC: 2024:KHC:36920
MFA No. 5480 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
Heard Sri. Girish.B.Baladare, learned counsel for the appellant as well as Sri. B.S.Krishna, learned counsel for respondent No.2-Insurance Company.
2. Challenge in this appeal is the order that is rendered by the Additional Motor Accidents Claims Tribunal, Hassan in MVC No.1676/2018 dated 18.11.2019.
3. On hearing learned counsel Sri. Girish.B.Baladare and learned counsel Sri. B.S.Krishna for respondent No.2, the two points that are required to be discussed and decided are as under:
1. Whether the appellant contributed for the accident to occur as observed by the Tribunal?
2. Whether the compensation awarded by the Tribunal is just and reasonable and if not, to what amount the appellant is entitled to? -3-
NC: 2024:KHC:36920 MFA No. 5480 of 2021
4. The appellant moved an application seeking compensation of Rs.10,00,000/- in total. The Tribunal through the impugned order held that the compensation which the appellant is entitled to is Rs.3,67,000/-. However, giving a finding that the contributory negligence on the part of the appellant is 20%, directed the respondents to pay a sum of Rs.2,94,000/-.
5. The manner of happening of the accident as projected by the appellant before the Tribunal is that on 18.4.2018 at about 2.30 p.m., while the appellant was proceeding on his motorcycle on Hassan-Belur road and when he reached Manachanahalli, he attempted to turn right by showing indicator and while he was turning his bike, a Car bearing Registration No.KA 18 P 3111, which came from Belur side, dashed against his bike and the Car was driven by its driver in a rash and negligent manner, due to which the accident occurred.
6. Arguing the matter, learned counsel Sri. Girish.B.Baladare submits that though the Tribunal dealing with issue No.1 with regard to rash and negligent driving of the -4- NC: 2024:KHC:36920 MFA No. 5480 of 2021 driver of the Car, gave a finding in affirmative and held that the accident occurred due to rash and negligent driving of the driver of the Car, however, after discussing about the quantum which the appellant is entitled to receive as compensation, again gave a finding that the contributory negligence on the part of the appellant is 20%, which is improper. Learned counsel Sri. Girish.B.Baladare submits that without there being any evidence on record to show that the appellant was negligent, the Tribunal attributed contributory negligence which is unjustifiable.
7. Contradicting the submission thus made, Sri. B.S.Krishna, learned counsel for respondent No.2 contends that the appellant was not holding driving licence to drive the bike and indeed, the accident occurred due to his negligence. Having perceived the said fact and the manner of happening of the accident, the Tribunal rightly fastened the liability against the appellant also and therefore, the observations made by the Tribunal with regard to contributory negligence needs no interference.
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NC: 2024:KHC:36920 MFA No. 5480 of 2021
8. It is not in dispute that the material available before the Tribunal to decide the aspect of the negligence is the evidence of PW.1 and Exs.P1 to P7 alone. The evidence of PW.1 and Exs.P1 to P7 goes to show that the accident occurred due to rash and negligent driving of driver of the Car. The owner of the Car for the reasons best known did not contest the case. No attempt was made by respondent No.2- Insurance Company either to produce the evidence of driver of the Car or any other witness who can depose about manner of happening of the accident.
9. The fact that the police after investigation filed charge sheet against the driver of the Car is not in dispute. There was no material on record before the Tribunal to infer that the appellant contributed the accident to occur. Also, as rightly contended by Sri. Girish.B.Baladare, the Tribunal at Para-14 of the impugned order, gave a clear finding that the evidence before the Court and the investigation clearly shows that the driver of the Car drove the Car in a rash and negligent manner. Such being the situation, this Court is of the view that only because the appellant did not produce his driving licence, he cannot be held to be negligent. Therefore, this Court holds -6- NC: 2024:KHC:36920 MFA No. 5480 of 2021 that the observation made by the Tribunal with regard to contributory negligence on the part of the appellant is required to be set aside.
10. Coming to the quantum of amount that is awarded as compensation, the version of the appellant is that as Plumber and Agriculturist he was earning Rs.30,000/- per month. However no substantive proof was produced by the appellant in proof of his occupation and earnings by the date of accident. The submission that is made by learned counsel Sri. Girish.B.Baladare is that the accident occurred in the year 2018 and for the relevant period even Karnataka State Legal Authorities is taking the notional income as Rs.12,500/- per month and the same figure is required to be taken. The said request and statement is not denied by Sri. B.S.Krishna, learned counsel for respondent No.2. Also the said request appears to be justifiable.
11. The age of the appellant admittedly was 36 years by the date of accident. This Court does not find any ground to interfere with the observation made by the Tribunal that the disability in respect of whole body is 11%. Having considered -7- NC: 2024:KHC:36920 MFA No. 5480 of 2021 the age of the appellant as 36 years by the date of accident, 40% of the actual earnings are required to be added towards future prospects as per the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680. Also appropriate multiplier to be applied is '15' as per the decision of Hon'ble Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 SAR (civ) 592. Thus, loss of future earnings due to permanent physical disability is as under:
Amount Description In Rs.
Notional monthly income 12,500-00
Annual Income (12,500X12) 1,50,000-00
Add 40% towards future 2,10,000-00
prospects (1,50,000+40%)
Apply appropriate multiplier '15' 31,50,000-00
Loss of future earnings, 3,46,500-00
permanent physical disability
being 11%
12. Thus, the appellant is entitled to a sum of
Rs.3,46,500/- towards loss of future earnings on account of permanent physical disability. The appellant admittedly sustained comminuted fracture of left femur, which is grievous in nature and also sustained a simple injury. It is clearly -8- NC: 2024:KHC:36920 MFA No. 5480 of 2021 brought on record that the appellant was admitted to NDRK Hospital for treatment and he took treatment as inpatient for about seven days. It is not in dispute that the appellant underwent a surgery during the course of treatment. Having considered the nature of injury sustained and the treatment taken, this Court is of the view that the appellant would not have attended his normal pursuits atleast for a period of three months. Thus, loss of earnings during laid up period comes to Rs.37,500/- (12,500X3). So far as award of Rs.30,000/- under the head pain and sufferings; Rs.1,09,000/- is under the head medical expenses; Rs.30,000/- towards future medical expenses is concerned, the grant is justifiable. However, the amount granted under other heads requires slight enhancement. Also, this Court is of the view that the appellant is entitled to a sum of Rs.5,000/- towards transportation charges. Thus, the total compensation which the appellant is entitled under the different heads is under:
Amount Sl No. Compensation in Rs.
1 Pain and suffering 30,000-00 2 Medical expenses 1,09,000-00 3 Attendant charges 10,000-00 -9- NC: 2024:KHC:36920 MFA No. 5480 of 2021 4 Food and nourishment 10,000-00 Loss of earning during laid 5 37,500-00 up period 6 Loss of future earnings 3,46,500-00 7 Future medical expenses 30,000-00 8 Transportation charges 5,000-00 Total 5,78,000-00
13. In the light of the foregoing findings, the appeal is disposed of with the following:
ORDER
(i) The appeal is allowed in part.
(ii) The contributory negligence attributed on the part of the appellant is set aside.
(iii) The appellant is entitled to a sum of Rs.5,78,000/- as compensation.
(iv) Respondent Nos.1 & 2 are jointly and severally liable to pay the amount awarded.
(v) The compensation granted carries interest at the rate of 6% per annum from the date of petition till the date of deposit.
(vi) Respondent No.2 is directed to deposit the entire sum within a period of eight weeks from the date of receipt of a copy of this order.
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NC: 2024:KHC:36920 MFA No. 5480 of 2021
(vii) On such deposit, the appellant is permitted to withdraw the entire amount.
Sd/-
(DR.CHILLAKUR SUMALATHA) JUDGE SMJ List No.: 1 Sl No.: 39