Karnataka High Court
Sri K N Narasimhamurthy vs Sri Kannappa on 6 December, 2021
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A NO. 5774 OF 2016(MV-I)
BETWEEN:
SRI K N NARASIMHAMURTHY
S/O NARAYANAPPA
AGED ABOUT 31 YEARS
RESIDING AT NO.68, 3RD MAIN ROAD
DEVASANDRA, K R PURAM
BANGALORE-560 036
...APPELLANT
(BY SRI.GOPALKRISHNA N, ADVOCATE)
AND:
1. SRI KANNAPPA
S/O BUDIGAPPA
MAJOR IN AGE
RESIDING AT THORNAHALLI VILLAGE
MALUR TALUK, KOLAR DISTRICT-563130
2. THE NATIONAL INSURANCE CO. LTD.
MOTOR CLAIMS HUB
NO.144, 2ND FLOOR
SHUBHARAM COMPLEX
M G ROAD, BANGALORE-560 001
REP:BY ITS MANAGER
...RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
2
NOTICE TO R1 IS D/W V/O DTD: 13.04.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 28.9.2015 PASSED
IN MVC NO.3969/2014 ON THE FILE OF THE 9TH
ADDITIONAL SMALL CAUSES JUDGE, 34TH ACMM, COURT
OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal is filed by the claimant
questioning the quantum and also the finding on the
negligence wherein the Tribunal has fasted 50%
negligence on the appellant/claimant.
2. The appellant filed a claim petition for
having sustained grievous injuries in a road traffic
accident dated 28.07.2014. The appellant contended
that he was proceeding on his bike bearing
Regn.No.KA-08-Q-5309 and when he reached near
Seethanayakanahalli Gate, the driver of the offending
Toyoto Qualis came in a high speed in a rash and
negligent manner and dashed against the motor bike.
In the said accident, the appellant sustained Open
Grade-III A of right middle third femur and right
middle third tibia. The appellant contended that he
was working as a driver at Bengaluru City and
drawing salary of Rs.12,000/- per month. The
Tribunal having assessed oral and documentary
evidence, in the absence of income proof assessed the
income of the appellant at Rs.6,000/- p.m. and by
taking the disability at 10% has awarded a sum of
Rs.1,22,400/- towards loss of future income. The
Tribunal in all awarded a total compensation of
Rs.3,49,130/- with 6% interest from the date of
petition till its realisation.
While determining negligence the Tribunal was
of the view that on account of admission given by the
appellant herein in the cross-examination admitting
that there was head on collision, the Tribunal recorded
a finding that the appellant has also contributed
negligence and therefore, fastened 20% negligence on
the appellant.
3. Heard the learned counsel for the appellant
and learned counsel for the respondent -Insurance
Company .
4. Regarding negligence:
The appellant to discharge his initial burden on
Issue No.1, examined himself as P.W.1 and relied on
police records which are produced at Exs.P1 to 6.
Though the respondent-Insurance Company has
attributed negligence on the appellant, however, has
not chosen to lead any rebuttal evidence. On perusal
of Exs.P1 and P3, this Court would find that crime was
registered against the driver of the offending vehicle
and charge sheet was filed against the driver of the
offending Toyoto Qualis. Therefore, on re-appreciation
of oral and documentary evidence, this Court is of the
view that the finding arrived at by the Tribunal in
fixing the negligence to the tune of 20% on the
appellant is palpably erroneous and contrary to the
evidence on record. In the absence of rebuttal
evidence let in by respondent-Insurance Company, by
placing reliance on the cross-examination of P.W.1,
the Tribunal has come to the conclusion that the
appellant has also contributed to the accident. In the
cross-examination, it appears that to a suggestion
that there was a head on collision, the appellant has
admitted that it was a head on collision. By placing
reliance on this part of the cross-examination, the
Tribunal has arrived at a conclusion that the appellant
has also contributed to the accident and consequently
fixed the negligence at 20%. This finding appears to
be erroneous. The question is not about head on
collision. Even if there was head on collision, then
also the respondent-Insurance Company was required
to discharge its burden and establish the point of
impact at the spot where the accident has occurred.
It is not the head on collision which would decide the
negligence. It is the location and spot at which the
head on collision has taken place that would be
relevant. The charge sheet is filed clearly indicating
that it is the driver of the Toyoto Qualis who was rash
and negligent. If there was no rebuttal evidence, then
the Tribunal was bound to take holistic view by placing
reliance on the charge sheet. In that view of the
matter, the Tribunal fixing 20% negligence on the
appellant is in absence of rebuttal evidence and the
said finding needs to be set aside and accordingly, the
same is set aside by holding that the accident
occurred only on account of rash and negligent driving
by the driver of the offending vehicle and the entire
negligence needs to be fastened on the driver of the
offending Toyoto Qualis.
5. Regarding quantum:
Though this Court cannot find fault with the
finding recorded by the Tribunal in notionally
assessing the income, however, having regard to the
date of accident, which is of the year 2014, by placing
reliance on the chart prepared by the legal services
authority, the income is assessed at Rs.8,500/-. The
medical evidence on record clearly indicates that the
appellant has 15% disability to the whole body as
opined by P.W.2. Therefore, the Tribunal erred in
assessing the disability at 10% which runs contrary to
the medical evidence. Therefore, by assessing the
disability at 15% and notionally assessing the income
of the appellant at Rs.8,500/- the compensation
payable under the head of future loss of earnings
works out to Rs.2,60,100/- (Rs.1,275x12x17).
Having regard to the gravity of the injuries
sustained by the appellant herein, I am of the view
that the compensation awarded towards loss of
amenities and laid up period needs a slight
modification and I deem it fit to award Rs.25,000/-
towards loss of amenities and Rs.25,500/- towards
loss of income during the laid up period i.e. for a
period of three months.
Rest of the amounts awarded under other heads
remain undisturbed.
6. Hence, the compensation re-determined by
this Court is as follows:
Sl. Heads Amount
No.
1. Pain and sufferings Rs. 50,000/-
2. Medical expenses Rs.1,27,730/-
3. Loss of income during laid up Rs. 25,500/-
period
4. Loss of future earnings Rs.2,60,100/-
5. Loss of amenities Rs. 20,000/-
6. Conveyance Rs. 3,000/-
7. Food, Nourishment and diet Rs. 5,000/-
charges
8. Attendant charges Rs. 3,000/-
9. Future Medical expenses Rs. 10,000/-
TOTAL Rs.5,04,330/-
Thus, the total compensation re-determined by
this Court works out to Rs.5,04,330/- as against
Rs.2,79,304/- awarded by the Tribunal.
6. In the result, the appeal is allowed in part.
The impugned judgment and award dated 28.9.2015
passed in MVC.No.3969/2014 by the IX Additional
Small Causes and Additional MACT, Bengaluru, is
modified. The appellant is held entitled to enhanced
compensation of Rs.2,25,026/- with 6% interest from
the date of petition till its realisation.
Out of the enhanced compensation, a sum of
Rs.1,00,000/- shall be kept in fixed deposit for a
period of three years and the balance amount shall be
released in favour of the appellant.
Sd/-
JUDGE
*alb/-.
