Karnataka High Court

Amaresh vs Mehaboob And Anr on 7 December, 2021

Bench: M.G.S.Kamal

                          1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH
  DATED THIS THE 07TH DAY OF DECEMBER, 2021
                      BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
               MFA No.202093/2016
                      C/W
          MFA.CROB.NO.200055/2017 (MV)

IN MFA.No.202093/2016
BETWEEN:
01.    MAHEBOOB S/O ALLASAB HUSSAIN
       AGE: 27 YEARS OCC: DRIVER OF
       BUS NO.KA-36/F-768

02.    THE DIVISIONAL CONTROLLER NEKSRTC RAICHUR
       NOW REPRESENTED BY ITS
       CHIEF LAW OFFICER
       "SARIGE SADANA" NEKRTC MAIN ROAD,
       OPP: KBN HOSPITAL
       KALABURAGI-585 101.           ... APPELLANTS

(BY SRI. A. M. PATIL, ADVOCATE)

AND:

AMARESH S/O MAHANTAPPA TORANADDINNI
AGE:49 YEARS OCC: AGRICULTURE & COOLIE
R/O: H.NO.7-1-83/2 GAJGAR PETH.
CHOWDAMMA KATTI, RAICHUR-586 101.

                                    ... RESPONDENT

(BY SRI. BABU H. METAGUDDA, ADVOCATE)
                            2




       THIS MISCELLANEOUS FIRST     APPEAL    IS   FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,

1988 PRAYING TO CALL THE TRIAL COURT RECORDS AND

TO    SET-ASIDE   THE    JUDGMENT   AND    AWARD      IN

MVC.NO.476/2015 DATED 02.09.2016 PASSED BY THE II

ADDITIONAL    DISTRICT    AND   SESSIONS   JUDGE,    AT

RAICHUR.


IN MFA.CROB.NO.200055/2017


BETWEEN:

AMARESH S/O MAHANTAPPA TORANADDINNI
AGE:49 YEARS OCC: AGRICULTURE & COOLIE
R/O: H.NO.7-83/2 GAJGAR PETH.
RAICHUR-585 861.

                                 ... CROSS-OBJECTOR


(BY SRI. BABU H. METAGUDDA, ADVOCATE)

AND:


01.    MEHABOOB S/O ALLASAB HUSSAIN
       AGE: 27 YEARS OCC: DRIVER OF NEKSRTC
       BUS NO.KA-36/F-768, MASKI DEPOT,
       R/O: MADDAPUR
       TQ: SINDHANUR DIST: RAICHUR-584101.
                                3




02.   THE DIVISIONAL CONTROLLER, NEKSRTC
      RAICHUR DIVISION, RAICHUR
      NOW REPRESENTED BY ITS
      CHIEF LAW OFFICER
      "SARIGE SADANA" NEKRTC MAIN ROAD,
      OPP: KBN HOSPITAL
      KALABURAGI-585 101.

                                           ... RESPONDENT

(BY SRI. A. M. PATIL, ADVOCATE FOR R2
VIDE ORDER DATED 15.12.2020 NOTICE TO R1 IS
DISPENSED WITH)

      THIS MFA.CROB IS FILED UNDER XLI RULE 22 READ

WITH SECTION 151 OF CODE OF CIVIL PROCEDURE

PRAYING      TO     ALLOW     THIS   CROSS-OBJECTION   BY

MODIFYING         THE   JUDGMENT     AND   AWARD   DATED

02.09.2016    PASSED     BY    THE   LEARNED   ADDITIONAL

DISTRICT AND SESSIONS JUDGE AND MACT, RAICHUR, IN

MVC.NO.476/2015 BY ENHANCING THE COMPENSATION

AS CLAIMED IN THE CLAIM PETITION, CONSEQUENTLY

DISMISS THE MISCELLANEOUS FIRST APPEAL FILED BY

THE FIRST RESPONDENT HEREIN.

      THESE APPEAL AND MFA.CROB COMING ON FOR

FINAL HEARING THIS DAY, THE COURT DELIVERED THE

FOLLOWING:-
                                    4




                              JUDGMENT

MFA.No.202093/2016 is filed by the appellants -

respondents and MFA.Crob-Objection No.200055/2017 is

filed by the Cross-Objector - claimant against the

judgment and order dated 02.09.2016 passed in

MVC.No.476/2015 on the file of the II Additional District

and Sessions Judge, at Raichur (henceforth referred as

'Tribunal).

02. The brief facts leading upto filing of the appeal

are that on 29.10.2015 at about 05.00 p.m. claimant was

proceeding on a motorcycle bearing Reg.No.KA-33-E-1296

as a pillion rider. When he reached near Buddinni village, a

bus of NEKSRTC bearing No.KA-36-F-768 driven by its

driver came in a high speed in a rash and negligent

manner and dashed to the motorcycle causing the

accident. Due to the impact the claimant fell down and

sustained grievous and multiple injuries all over the body.

He was treated at PHC Maski, thereafter at RIMS Hospital,

Raichur for two months and spent huge amount for

treatment.

03. Thereupon the claimant filed a claim petition

seeking compensation of `.6,00,00/- with interest at the

rate of 12% on the premise that the he was hale and

healthy aged about 48 years and earning `.10,500/- per

month as an agriculturist. That due to the accident, he is

unable to do his agricultural work as earlier. That the

accident occurred due to negligent driving on the part of

the respondent No.1 being the driver of the bus belonging

to respondent No.2. Therefore, the respondents No.1 and

2 are jointly and severally liable to pay compensation.

04. On service of notice, respondent No.1

remained absent and placed ex-parte. The respondent

No.2 filed statement of objection denying the age,

occupation and income of the claimant. It was contended

that the accident occurred due to negligence on the part of

the rider of the motorcycle and not on the part of the

driver of the bus. That the rider of the motorcycle did not

have driving license and there was violation of terms of the

policy. As such, the respondent No.2 was not liable to pay

the compensation. Hence, sought for dismissal of the

claimant petition.

05. The Tribunal framed issues, recorded the

evidence. The claimant examined himself as PW.1 and one

Dr. Harish Murthy has been examined as PW.2 and

exhibited 31 documents as per Exs.P.1 to Ex.P.31. Two

witnesses have been examined on behalf of respondents

as RW.1 and RW.2 and marked two documents as Ex.R.1

and Ex.R.2.

06. The Tribunal on appreciation of the evidence

held that the accident in question had occurred on account

of rash and negligent driving of the driver of the bus by its

driver. Consequently, held that the claimant is entitled for

a compensation of `.2,00,600/- under the following

heads:-

 Sl.                 Heads                   Amount
 No.
01.      Transportation                  `.0,02,000/-
02.      Pain and suffering              `.0,50,000/-
03.      Loss of future earning          `.0,93,600/-
04.      For medical expenses based      `.0,25,000/-
         on Medical bills and evidence
05.      Towards Attendant charges       `.0,15,000/-
06.      Towards conveyance and diet     `.0,15,000./-
         and Misc. Expenses
         Total                           `.2,00,600/-

07. Aggrieved by the same, the respondent -

corporation in MVC.No.476/2015 is before this Court in

MFA.No.202093/2016 seeking reduction of compensation,

while the claimant in MFA.Crob.No.200055/2017 is before

this Court seeking enhancement of compensation.

08. Heard the learned counsel for the parties and

perused the records.

09. The appellant - respondent in

MVC.No.476/2015 reiterating the grounds urged in the

appeal memo submitted that the Tribunal has erred in not

noticing that there were three persons traveling on the

motorcycle, who contributed the accident. The driver of the

bus was driving the same in a normal speed and there was

no negligence on the part of the driver of the bus. The

rider of the motorcycle who was carrying two pillion riders

had lost control of the bike and had dashed against the

bus. That the age of the injured is above 48 years on the

date of accident. Therefore, the multiplier applicable is

'13'. That the notional income assessed by the Tribunal is

on the higher side. Therefore, sought for reduction of

compensation.

10. The learned counsel for the claimant

reiterating the grounds urged in the cross-objection

submitted that the Tribunal grossly erred in assessing the

income of the claimant at `.6,000/- per month, though he

was earning `.10,500/- per month from his agricultural

activities. Further, the Tribunal failed to consider the

nature of the injuries sustained by the claimant. Though,

PW.2 - doctor had assessed permanent disability to the

extent of 25% of the whole body. The Tribunal without

assigning any reason has taken the same at 10% thereby

caused injustice. That the compensation awarded under

the other heads are on the lower side. Hence, sought to

enhancement of the compensation.

11. On consideration of the submission made by

the learned counsel for the parties, the points that arise for

consideration:-

1. Whether the appellant in MFA.No.

202093/2016 have made out any case for interference?

2. Whether the cross-objector - claimant has made out any grounds for enhancement of compensation?

12. Though it is contended on behalf of the

appellants - respondents that the accident had occurred on

account of the rider of the motorcycle riding with two

pillion riders in breach of traffic rules, resulting in breach of

terms of the policy, no material evidence in this regard is

produced. As rightly held by the Tribunal that mere facts

that the claimant had informed the police that he along

with two others were traveling by motorcycle would not be

a ground to disentitled claimant from claiming

compensation, inasmuch as the same at the most would

attract payment of penalty for the offence of breach of

traffic rules. As held by the Apex Court in the case of

Mohammed Siddique and another vs. National

Insurance Company Limited and others reported in

(2020) 3 SCC 57, riding on a motorcycle along with two

persons may not by itself without anything more make him

guilty of contributory negligence. At the most it would

make him guilty being party to the violation of law.

13. Thus, the grounds urged by the appellant -

respondent in MVC.No.476/2015 do not satisfying the

requirement of interference with the findings of the

Tribunal in this regard. The point No.1 raised is answered

accordingly.

14. Adverting to the quantum of compensation, the

learned counsel for the claimant has contended that

though the claimant was earning `.10,500/- per month,

the Tribunal has assessed notional income of `.6,000/- per

month. This Court in the absence of any evidence with

regard to the income of the victims of the road traffic

accident, takes into consideration the chart prepared the

Karnataka Legal Services Authority, in terms of which

notional income of the victims of road traffic accident for

the year 2015 is fixed at `.8,000/- per month. Since, the

accident in the instant case has occurred on 29.01.2015,

`.8,000/- needs to be taken as the notional income of the

claimant.

15. That the claimant has suffered right middle

thigh internal fracture and fracture of right lower leg,

which is of grievous in nature. As per the disability

certificate, PW.2 the doctor has assessed the disability at

25%. The Tribunal has however, assessed the same at

10% to the whole body. It is relevant to note that the

doctor on clinical examination has observed that there is

operative scar mark seen over right thigh and lower leg

region. He has also observed that due to the injuries, the

claimant has restricted movements of hip and the leg and

he is not able to bend forward. Considering the nature of

injuries and the discomfort caused to the claimant, the

assessment of disability at 10% by the Tribunal appears to

be on a lower side. This Court is of the considered view

that the disability be assessed at 20% instead of 10%

assessed by the Tribunal. Since, the claimant is aged

about 48 years, appropriate multiplier applicable would be

13. Calculated as above the loss of future income of the

claimant would be `.8,000 x 12 x 13 x 20% = 2,49,600/-.

16. The Tribunal has awarded `.02,000/- under the

head of transportation which is enhanced to `.5,000/-. The

Tribunal has awarded `.50,000/- under the head of pain

and suffering, the same is maintained as just and proper.

The Tribunal has awarded attendant charges of `.15,000/-,

the same is enhanced to `.25,000/-. No amount is

awarded under the head of loss of income during the laid

up period. As the notional income of the claimant is

determined at `.8,000/- per month and claimant must

have been under treatment and rest for a period of 03

months, a sum of `.8,000 x 3 = `.4,000/- is awarded

under the said head. Besides the Tribunal has not awarded

any amount under the head of loss of amenities. A sum of

`.40,000/- under the said head.

17. Therefore, the compensation awarded by the

Tribunal deserves to be re-determined and re-calculated as

follows:-

  Sl.                                 Awarded by the    Enhanced by this
                   Heads
  No.                                     Tribunal           Court
  01.   Transportation               `.0,02,000/-      Rs.00,05,000/-
  02.   Pain and suffering           `.0,50,000/-      Rs.00,50,000/-
  03.   Loss of future earning       `.0,93,600/-      Rs.02,49,600/-
  04.   For   medical   expenses     `.0,25,000/-              -
        based on Medical bills and
        evidence
  05.   Towards Attendant charges    `.0,15,000/-      Rs.00,25,000/-
  06.   Towards conveyance and       `.0,15,000./-             -
        diet and Misc. Expenses
  07.   Towards income during                -         Rs.00,24,000/-
        laid up period
  08.   Towards loss of amenities            -         Rs.00,40,000/-
        Total                        `.2,00,600/-      Rs.03,93,600/-

18. Hence, the point No.2 raised for consideration

is answered accordingly.

19. In the result, the following;

ORDER

(i) The MFA.No.202093/2016 filed by the appellants -

respondents is dismissed.

(ii) The MFA.Crob.No.200055/2017 filed by the cross-

objector - claimant is partly allowed.

(iii) The judgment and award dated 02.09.2016 passed

in MVC.No.476/2015 by the II Additional District and

District Judge, at Raichur, is modified.

(iv) The claimant is held entitled for a total compensation