Lakshminarayana vs Chennakeshava H
2021 Latest Caselaw 4781 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF NOVEMBER, 2021

                         BEFORE

         THE HON'BLE MR. JUSTICE E.S.INDIRESH

MISCELLANEOUS FIRST APPEAL NO.2361 OF 2015 (MV)

 BETWEEN:

 LAKSHMINARAYANA,
 S/O NYATHAPPA,
 AGED ABOUT 38 YEARS,
 RESIDING AT NO.47,
 HOSAHUDYA VILLAGE,
 DEVANAHALLI TALUK,
 BENGALURU RURAL DISTRICT-560 052.

                                          ... APPELLANT
 (BY SRI. D.S. SRIDHAR, ADVOCATE FOR
  SRI. K.V. SHYAMAPRASADA, ADVOCATE)

 AND:

   1. CHENNAKESHAVA. H
      S/O HONNAPPA,
      MAJOR,
      IRIGENAHALLI VILLAGE,
      BIJJAVARA POST,
      DEVANAHALLI TALUK,
      BENGALURU RURAL DISTRICT-560 052.

   2. M/S. UNITED INDIA INSURANCE CO. LTD.,
      NO.25, SHANKARNARAYANA BUILDING,
      M.G. ROAD, BENGLAURU.
      PRESENT ADDRESS
      MOTOR THIRD PARTY CLAIMS HUB,
      KRISHI BHAVAN,
      VI FLOOR, NRUPATHUNGA ROAD,
      HUDSON CIRCLE,
                                 2



     BENGALURU-560 002.
     REP. BY ITS MANAGER.
                                              ... RESPONDENTS

(BY SRI. Y.K. SHESHAGIRI RAO, ADVOCATE FOR R2;
 NOTICE TO R1 IS DISPENSED WITH)


      THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 14TH
AUGUST, 2014 PASSED IN MVC NO.7730 OF 2011 ON THE
FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND
XXXIII ACMM, MEMBER-MOTOR         ACCIDENT  CLAIMS
TRIBUNAL, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION    FOR     COMPENSATION     AND   SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS M.F.A COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award dated 14th August, 2014 passed in

MVC No. 7730 of 2011 on the file of the Court of VIII

Additional Small Causes Judge and Motor Accident Claims

Tribunal(SCCH-5), Bengaluru (for short, hereinafter

referred to as "Tribunal"), seeking enhancement of

compensation and on liability.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the Tribunal.

3. It is the case of the claimant that, on 12th July,

2011 at about 1.30 p.m., the claimant was proceeding on

Motorcycle bearing registration No.KA-43-H-4860 on NH-7

and when he reached near Sangeetha Dhaba at Avathi, a

car bearing registration No.KA-04-MF-1269 dashed to the

said Motorcycle and due to the said impact, the claimant

suffered injuries and immediately he was shifted to Manasa

Hospital for first-aid and thereafter, to R.M.V. Hospital for

further treatment. It is the case of the claimant that, he

was working as Photographer in V.G.Kole, Devanahalli

Taluk and was earning Rs.15,000/- per month and on

account of the accident he had suffered permanent

disability and lost the job. Hence, the claimant preferred

MVC 7730 of 2011 on the file of the Tribunal, seeking

compensation.

4. On service of notice, respondent No.1 served,

un-represented and accordingly placed ex-parte.

Respondent No.2 -Insurance Company entered appearance

and filed detailed written statement denying the averments

made in the claim petition. It is also the case of the

Insurance Company that the complaint was lodged after

four days from the date of accident and therefore, sought

for dismissal of the claim petition. The Tribunal, after

considering the material on record, has framed issues for

its consideration. In order to prove the case, the claimant

got himself examined as PW1 and produced 14 documents

and same were got marked as Exhibits P1 to P14. On the

other hand, respondent No.1 was examined as RW1 and

examined another witness as RW2 and produced 4

documents and same were got marked as Exhibits R1 to

R4. The Tribunal, after considering the material on record,

by its judgment and award dated 14th August, 2014,

allowed the claimant petition in part and awarded

compensation of Rs.1,08,550/- (which is rounded off to

Rs.1,08,600/-) with interest at the rate of 8% per annum

from the date of petition till realisation. The Tribunal,

taking into consideration the contributory negligence on the

part of the rider of the Two-wheeler has held that the rider

of the Two-wheeler contributes to an extent of 10%.

Accordingly, fastened liability at 10% on the part of the

rider of the Motorcycle. Being not satisfied with the

quantum of compensation awarded by the Tribunal as well

as fastening liability towards negligence on the part of the

rider of the Motorcycle to a extent of 10%, the claimant has

filed this appeal.

5. I have heard Sri. D.S. Sridhar, learned counsel on

behalf of Sri. K.V. Shyamaprasada, learned counsel for the

claimant and Sri. Y.K. Sheshagiri Rao, learned counsel

appearing for respondent-Insurance Company.

6. Sri. D.S.Sridhar, learned counsel appearing for the

claimant submitted that, the said accident occurred due to

negligence on the part of the driver of the car in question

and therefore the finding recorded by the Tribunal saddling

contributory negligence at 10% on rider of the Motorcycle

requires interference and he further contended that the

quantum of compensation awarded by the Tribunal is on

lower side and requires enhancement in this appeal.

7. Per contra, Sri. Y.K. Sheshagiri Rao, learned

counsel appearing for respondent-Insurance Company

argued that, the finding recorded by the Tribunal with

regard to contributory negligence on the part of the rider of

Two-wheeler is just and proper since the damage to the

Two-wheeler is on the front side and to the car on rear

side. Therefore, he contended that the finding recorded by

the Tribunal insofar as the quantum of compensation is just

and proper and does not call for any interference in this

appeal.

8. In the light of submissions made by the learned

counsel appearing for the parties, it is not in dispute that

the claimant was moving on a Motorcycle on 12th July, 2011

at about 1.30 p.m. and the said Motorcycle was dashed by

the car bearing registration No.KA-04-MF-1269. In order to

prove the alleged accident , the claimant has produced

Exhibits P1 to P14. However, claimant has not produced

copy of the sketch to contend that the said accident was

occurred solely on the driver of the offending car. In this

regard, I have carefully considered the finding recorded by

the Tribunal at Paragraph No.14 of the judgment and I am

of the view that the finding recorded by the Tribunal is just

and proper which does not call for any interference in this

appeal.

9. Insofar as the quantum of compensation is

concerned, considering the nature of injuries sustained by

the claimant as per the Exhibit P5-Wound Certificate, in my

opinion, the award of compensation made by the Tribunal

towards Pain & suffering and Medical Bills does not call for

interference in this appeal. However, the claimant is

entitled for compensation of Rs.30,000/- towards loss of

amenities and Rs.20,000/- towards incidental charges

including nourishment and conveyance charges.

Accordingly, the claimant is entitled for total compensation

of Rs.1,97,000/- with interest at the rate of 6% per annum

insofar as enhanced compensation is concerned. However,

I find force in the arguments advanced by the learned

counsel appearing for the appellant with regard to saddling

contributory negligence at 25% on the ground that the rider

of the Motorcycle did not possess valid driving license.

Taking into consideration the law declared by Apex Court in

the case of SUDHIR KUMAR RANA Vs. SURINDER SINGH

AND OTHERS reported in 2008 AIR SCW 3981 and the

Judgment of Division Bench of this Court in the case

VINOBABAI AND OTHERS Vs. K.S.R.T.C. AND ANOTHER

reported in 1979 ACJ 282, I am of the view that the finding

recorded by the Tribunal saddling the liability in an extent

of 25% on the premise that the rider of the Motorcycle did

not possess Driving Licence was not correct. However, the

fastening of liability at 10% towards contributory

negligence on the part of the rider of Motorcycle is left

undisturbed.

Accordingly, appeal is disposed of.

Sd/-

JUDGE

ARK