The New India Assurance Company ... vs Sri. Sangayya S Ganachari
2022 Latest Caselaw 1618 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                           BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

       MISCELLANEOUS FIRST APPEAL No.103633/2017(MV)

BETWEEN:

THE NEW INDIA ASSURANCE COMPANY LIMITED,
REGIONAL OFFICE,
2ND FLOOR, SRINATH COMPLEX,
COTTON MARKET HUBBALLI-580029,
NOW REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY
                                               ...APPELLANT
(BY SRI. M. Y. KATAGI, ADVOCATE)

AND:

1.     SRI SANGAYYA S GANACHARI,
       AGE: 33 YEARS, OCC: DRIVER, NOW NIL,
       R/O: KODIHAL, TQ: HUNUGUND,
       DIST: BAGALKOT.

2.    THE PARTNER, M/S HIRO HONDA
      TRANSPORT COMPANY, TRAFFIC ISLAND,
      P.B. ROAD, HUBBALLI-580029.
      (OWNER OF THE LORRY BEARING NO KA-25/A-4835)
                                             ..RESPONDENTS
(BY SRI. S. C. HIREMATH, ADVOCATE FOR R1;
   R2 - SERVICE HELD SUFFICIENT)

      THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWRAD DATED
10.08.2017, PASSED IN MVC NO.416/2014 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENTS CLAIMS
TRIBUNAL, HUNGUND, AWARDING COMPENSATION OF `15,95,500/-
WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.
                                     2




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

The Insurer of the offending lorry bearing

registration No.KA-25/A-4835 has preferred this

appeal challenging the quantum and liability of

compensation awarded by the Senior Civil Judge and

MACT, Hungund (hereinafter referred to as 'the

Tribunal', for brevity) in MVC No.416/2014 by its

judgment and award dated 10.08.2017.

2. Though the matter is listed for admission,

with the consent of learned advocates appearing on

both sides, the same is taken up for final disposal.

3. The parties to this appeal are referred to by

their rankings assigned to them before the Tribunal

for the sake of convenience.

4. The facts of the case as revealed from the

records are:

On 16.04.2013, the claimant was traveling in a

bus bearing registration No.KA-29/F-780 from

Hungund towards Raichur side and at about 9.00 pm,

when the bus reached near Gadisankapur cross of

Hungund Taluk, the offending lorry bearing

registration No.KA-25/A-4835, driven by its driver in

a rash and negligent manner, came from Mudgal side

and dashed against the bus and caused the accident.

The claimant suffered grievous injuries in the said

accident. It is under these circumstances, he had

filed a claim petition under Section 166 of the Motor

Vehicles Act, claiming compensation of `10,00,000/-

from the owner and Insurer of the offending lorry.

The Tribunal had allowed the claim petition and

awarded a compensation of `15,95,500/- with

interest at 8% p.a. from the date of petition till

realization. Aggrieved by the same, the Insurer of

the offending lorry is before this Court.

5. Learned counsel for the Insurer submits

that the Tribunal has erred in considering the

notional income of the injured claimant at `10,000/-

per month, in the absence of any material document

to prove his income. He also submits that, having

regard to the deposition of the claimant before the

Tribunal, wherein he has admitted that, in spite of

repeated warning by the driver and conductor of the

bus, he had extended his hand outside through the

window of the bus, the Tribunal ought to have held

him guilty of contributory negligence.

6. Per contra, learned counsel appearing for

the claimant submits that the accident was caused as

a result of the rash and negligent driving of the

offending lorry by its driver and charge sheet has

been filed against him. He submits that the

respondents have not led any evidence to prove the

contributory negligence of the claimant. He submits

that the fact that the claimant had extended his hand

outside through the window of the bus was not the

cause for the accident, and therefore, no contributory

negligence can be attributed to the claimant. He

submits that the claimant was a driver, and

therefore, his income assessed by the Tribunal is

proper and needs no interference.

7. I have given my anxious consideration to

the arguments addressed on both sides and also

perused the material available on record.

8. The undisputed facts of the case are, that

in the accident that had taken place on 16.04.2013,

in which admittedly the offending lorry was involved,

the claimant had suffered grievous injuries and as a

result of the said injuries sustained by him, his right

hand was amputated. It is not in dispute that the

offending lorry was insured by the appellant-Insurer

and the policy was valid as on the date of the

accident. The material on record would go to show

that the accident had occurred as a result of the rash

and negligent driving by the driver of the offending

lorry which had dashed against the bus, in which the

claimant was traveling.

9. As rightly contended by the learned Counsel

for the claimant, the fact that the claimant had

extended his hand outside through the window of the

bus was not the cause for the accident. Admittedly,

the charge sheet has been filed against the driver of

the offending lorry and the respondents have not led

any evidence before the Tribunal to prove that the

claimant also had contributed to the accident in

question. Under the circumstances, I am of the

considered view that there is no merit in the

contention urged by the learned Counsel for the

Insurer that the Tribunal ought to have attributed

contributory negligence even on the claimant.

10. In so far as the compensation awarded by

the Tribunal is concerned, the notional income of the

claimant has been taken into consideration at

`10,000/- per month. The accident is of the year

2013. As per the income chart maintained by the

Karnataka State Legal Services Authority for the

purpose of disposal of road traffic accident cases

before the Lok Adalath, since the claimant had not

proved his income before the Tribunal, his notional

income ought to have been taken at `7,000/- p.m. In

the said event, the claimant would be entitled for a

total sum of `10,08,000/- towards loss of future

income due to disability as against the sum of

`14,40,000/- awarded by the Tribunal.

11. Towards pain and suffering, the Tribunal

has awarded only a sum of `30,000/- and in my

considered view, the claimant is entitled atleast for a

sum of `50,000/- under the said head. The

compensation awarded by the Tribunal towards

medical expenses and loss of amenities is just and

proper and needs no interference.

12. Towards loss of income during laidup

period, the claimant is entitled for a sum of `28,000/-

as against `20,000/- awarded by the Tribunal.

Towards incidental expenses, the claimant is entitled

for a total sum of `20,000/- as against `5,500/-

awarded by the Tribunal.

13. Therefore, in all, the claimant is entitled for

a total compensation of `12,06,000/- as against

`15,95,500/- awarded by the Tribunal. Accordingly,

the appeal is allowed in part.

14. The amount in deposit before this Court is

directed to be transferred to the Tribunal for the

purpose of disbursement. The balance amount of

compensation shall be deposited by the Insurer

before the Tribunal within six weeks from the date of

receipt of certified copy of this order.

Sd/-

JUDGE

gab/KK