Shri.Ashok S/O Dundappa Patted vs Shri.Ramachandra S/O Mallappa ...
2022 Latest Caselaw 11463 Kant

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                                    MFA No. 102986 of 2015




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 22ND DAY OF AUGUST, 2022

                          BEFORE
          THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 102986 OF 2015
                           (MV-I)
BETWEEN:


      SHRI. ASHOK S/O. DUNDAPPA PATTED
      AGED ABOUT 42 YEARS, OCC:DRIVER
      R/O:H.NO.899/6A, FHULBAG GALLI
      BELAGAVI



                                                ...APPELLANT
(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)

AND:


1.    SHRI. RAMACHANDRA S/O MALLAPPA AIGALI
      R/O:H.NO.16, JAWAN QUARTERS
      SUBHASH NAGAR
      TALUK AND DIST:BELAGAVI
      (OWNER OF TVS SCOOTY NO KA-22/X-544)

2.    THE NEW INDIA ASSURANCE COMPANY LIMITED
      3933/B-2, CLUB ROAD, BELAGAVI-590001
      (POLICY NO.67110031120100003640)



                                              ...RESPONDENTS
(NOTICE TO R1 SERVED;
 SMT. PREETI SHASHANK, ADVOCATE FOR R2)
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                                   MFA No. 102986 of 2015


     THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT     &   AWARD    DATED:16.07.2015,  PASSED    IN
MVC.NO.764/2013 ON THE FILE OF THE VI ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING.


                       JUDGMENT

Heard the appellant counsel and also the counsel

appearing for the respondents.

2. The factual matrix of the case of the claimant

before the tribunal is that, the offending vehicle rider of

the motorcycle drove the same in a rash and negligent

manner when he was proceeding in a straight line and he

came towards the right side and caused the accident and

as a result, he fell down and sustained grievous injuries

and hence, he gave the complaint and case has been

registered and the police have investigated the matter and

filed the charge-sheet against the rider of the offending

vehicle.

MFA No. 102986 of 2015

3. The claimant claims that, he was working as a

driver and earning Rs.300/- per day and on account of the

accident, he had sustained fracture of right tibia and he

was inpatient for a period of four days and he has

sustained permanent disability. In order to substantiate

his claim, he has examined himself as P.W.1 and also got

marked 12 documents as Ex.P.1 to Ex.P.12 and also

examined the Doctor as P.W.2 who assessed disability of

18% to the particular limb and tribunal has taken 6%

disability and also taken the income of Rs.6,000/- per

month and hence, the present appeal is filed by the

claimant contending that the compensation awarded under

all the heads are very meager and considered the

disability of 6% even though he has suffered the fracture

of right tibia and hence, it requires interference.

4. The counsel also would submits that, the

tribunal has committed an error in considering the

document at Ex.R.1 and fails to take note of the fact that

the rider of the offending motorcycle though he was

MFA No. 102986 of 2015

proceeding in the same direction, he came towards the

right side and caused the accident and the same has not

been lost sight by the tribunal and hence, apportioning the

negligence to the extent of 50% is erroneous. The counsel

also would submits that, the police have investigated the

matter and filed the charge-sheet against the rider of the

offending vehicle and the same has not been challenged

and hence, it requires interference.

5. Per contra, learned counsel appearing for the

respondent-Insurance company having placed the certified

copy of the deposition recorded in MVC No.764/2013,

wherein, the P.W.1 himself has admitted that, the accident

was taken place in the middle of the road and hence, the

tribunal has considered the said admission and rightly

comes to the conclusion that there was a contributory

negligence and hence, it does not requires any

interference.

6. Per contra, learned counsel appearing for the

Insurance company would submits that, the trial Court has

MFA No. 102986 of 2015

rightly taken the income of Rs.6,000/- per month, since no

document is placed before the Court that he was working

as a driver though he claims that he was a driver and the

compensation awarded under the other heads are also just

and reasonable and it does not require any interference.

7. Having heard the respective counsel and on

perusal of the material on record, the point that would

arise for consideration of this Court are;

(i) Whether the tribunal has committed an error in apportioning the negligence of 50% on the claimant ?

(ii) Whether the tribunal has committed an error in not awarding just and reasonable compensation?

(iii) What order ?

8. Answer to Point No.1 : Having heard the

respective counsel and also on perusal of the material

available on record, particularly the evidence of P.W.1, no

doubt he has admitted in terms of the spot sketch accident

MFA No. 102986 of 2015

was taken place in the middle of the road. It is also

confronted the said sketch and the same is admitted and

hence, same is also marked as Ex.R.1. It is suggested

that, he only went ahead of the other motorcycle which

was coming on the left side and dashed against the other

motorcycle and the same was categorically denied by

P.W.1. The sketch confronted to P.W.1 discloses that, both

the vehicles are proceeding in the same direction. It is also

important to note that at the distance of 30 feet from the

place of accident there was a road divider and also there is

a provision to take the vehicles towards the right turn

ahead of the place of the accident and hence, it is clear

that when both the vehicles are proceeding on the same

direction, and the claimant was on the right side, but the

movement of the vehicle of the offending vehicle is very

clear that though he was coming on the left side of the

road, he took the vehicle towards the right side and

caused the accused. Though tribunal taken note of the

accident was taken place in the middle of the road and the

MFA No. 102986 of 2015

same is admitted by P.W.1 and tribunal lost sight of the

fact that, the rider of the offending vehicle who was

proceeding in the same direction though he was coming on

the left side of the road and at the accident spot, he took

the vehicle towards the right side and while taking the

vehicle towards the right side, he has to observe the

vehicle which are coming in the very same direction and

the same has not been done and in spite of the same by

taking note of Ex.R.1 comes to an erroneous conclusion

that the accident was occurred due to the negligence on

the part of the claimant also and the very approach of the

tribunal is erroneous and apart from that the rider of the

motorcycle of the offending vehicle has not been examined

before the tribunal and he is the right person to speak

before the Court that the accident was also on account of

contributory negligence on the part of the Injured claimant

and no such evidence is before the tribunal and tribunal

blindly considered the Ex.R.1 sketch and hence, the very

approach of the tribunal is erroneous and hence, it

MFA No. 102986 of 2015

requires interference and the finding of the tribunal has to

be set aside regarding contributory negligence on the part

of the claimant and hence, I answer point No.1 as

affirmative.

9. Answer to Point No.2 : It is the claim of the

claimant that, he was working as driver and in order to

substantiate his contention he has not placed any material

either the driving licence or any other material to show

that he was working as driver. However, the tribunal has

committed an error in taking the income of Rs.6,000/- and

the accident was taken place in the year 2013 and in the

absence of any documentary proof of evidence of his

earning ought to have taken the notional income of

Rs.7,000/-. The tribunal has also committed an error in

taking the disability of 6% and no doubt the Doctor has

deposed the disability of 18% to the particular limb and

however the tribunal lost sight of taking note of the nature

of the injury i.e. fracture to tibia and the same is the main

bone and when such being the case ought to have

MFA No. 102986 of 2015

considered the disability of 8% and mechanically

considered the same as 1/3rd to the particular limb and

hence, it is appropriate to take the disability at 8% and

now taking into note of the income as Rs.7,000/-

X12X15X8%, it comes to Rs.1,00,800/- would be the loss

of future income. The tribunal awarded an amount of

Rs.30,000/- under the head of pain and suffering and only

he has sustained single fracture and hence, the same is

just and reasonable. The tribunal also awarded

compensation of Rs.25,000/- under the head of loss of

amenities and having taken the disability of 8% at the age

of 40, he has to lead his rest of life with the disability of

8% and hence, the same is just and reasonable. The

tribunal also awarded compensation of Rs.7,200/- on the

medical bills and the same is also based on the

documentary evidence and hence, it does not require any

interference. However, the tribunal committed an error in

awarding Rs.1,500/- under the head of attendant charges

and other incidental expenses and he was an inpatient for

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MFA No. 102986 of 2015

a period of four days and hence, it is appropriate to award

an amount of Rs.5,000/- under the head of attendant

charges and other incidental expenses. The tribunal

awarded an amount of Rs.18,000/- towards loss of income

during the laid up period and when he has suffered the

fracture of tibia it requires minimum three months for

uniting fracture and rest and hence, it is appropriate to

award an amount of Rs.21,000/- as against Rs.18,000/-

taking the income of Rs.7,000/-.

10. Answer to point No.3 : In view of the

discussions made above, I pass the following:

ORDER

The appeal is allowed in part.

The Judgment and award dated 16.07.2015 in MVC

No.764/2013 passed by VI Additional District and Sessions

Judge and Addl. MACT, Belagavi, is modified and the

claimant is entitled for compensation of Rs.1,89,000/- with

interest as against Rs.1,47,000/-.

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MFA No. 102986 of 2015

The Judgment and award of the tribunal is also

modified with regard to the contributory negligence and

the same has been set aside and directed the respondent

Nos.1 and 2 to pay the compensation. In view of the valid

insurance, the respondent No.2 is directed to pay the

compensation within six weeks from today.

On enhanced compensation, 6% interest is awarded.

Registry is directed to transmit the TCR, if any to the

concerned trial Court, forthwith.

Sd/-

JUDGE

SVH