Karnataka High Court
Mr Yogaraj S/O Puttalinge Gowda vs Mr M S Subba Rao on 3 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.4301 OF 2011 (MV)
BETWEEN:
MR. YOGARAJ
S/O. PUTTALINGE GOWDA,
AGED ABOUT 39 YEARS,
RESIDING AT NO.43, 9TH CROSS,
ANDANAPPA MAIN ROAD,
CHOWDESHWARINAGAR,
LAGGERE,
BENGALURU.
... APPELLANT
(BY SRI M. R. KUMARASWAMY, ADV.)
AND:
1. MR. M. S. SUBBA RAO
RESIDING AT NO.293, 28TH CROSS,
BEHIND INDIA BAKERY,
JUDICIAL LAYOUT, YELAHANKA,
BENGALURU-560 064.
2. THE NEW INDIA ASSURANCE COMPANY LIMITED
REPRESENTED BY ITS DIVISIONAL MANAGER,
DO-XII, 1ST FLOOR,
MAYOUR COMPLEX,
KIADB MAIN ROAD, PEENYA,
BENGALURU-560 058.
... RESPONDENTS
(BY SRI K.S. LAKSHMINARASAPA, ADV., FOR
SRI A.M. VENKATESH, FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
DATED 3-12-2013)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 18-5-2010 PASSED IN M.V.C.
NO.7882 OF 2008 ON THE FILE OF XXI A.C.M.M. & XXV A.S.C.J.,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the claimant
seeking enhancement of the compensation awarded by
judgment and award dated 18-5-2010 in M.V.C. No. 7882
of 2008 passed by the Motor Accident Claims Tribunal,
Court of Small Causes, Bengaluru.
2. The claimant has asserted in the claim petition
that on 16-9-2008 at 8:00 p.m., when he was riding the
motorcycle bearing Registration No.KA-02 EF-347 on Ring
Road near Muneshwaranagar 'U' turn, the Driver of Qualis
vehicle bearing Registration No.KA-13 A-5858 drove the
same from behind with high speed in a rash and negligent
manner and dashed against the motorcycle and on
account of the same, he fell down and suffered injury.
3. In the proceedings before the Tribunal,
respondent No.1-owner of the Qualis vehicle remained
ex-parte. Respondent No.2-Insurance Company contested
the proceedings by filing the statement of objections.
4. During trial, the claimant has examined himself
as P.W.1 and Exs.P.1 to P.14 were marked. Insurance
Company examined one of its officials as R.W.1 and
Exs.R.1 to R.4 were marked.
5. After hearing the learned counsel on both sides
and perusing the record, the Tribunal allowed the claim
petition in part and awarded compensation of Rs.4,960/-
with interest thereon at 6% per annum from the date of
petition till the date of deposit. The Tribunal also held
that there was contributory negligence on the part of the
claimant to an extent of 20%. Further, it has held that in
view of the Driver of Qualis vehicle not having valid and
effective Driving License, respondent No.1-owner of the
Qualis vehicle was liable to pay the compensation to an
extent of 80%, namely Rs.4,960/- with interest.
6. Learned counsel for the appellant-claimant
submitted that the pillion rider had also filed a claim
petition in M.V.C. No.8277 of 2008 which came to be
allowed on 9-10-2009 and the judgment and award came
to be challenged by the Insurance Company in M.F.A.
No.4828 of 2010 (MV) and the same came to be dismissed
by this Court by judgment dated 25-11-2020. She
submitted that by impugned judgment, the entire liability
was fastened on the Insurance Company to pay the
compensation. She, therefore, submitted that in this case
also, Insurance Company should be held liable to pay the
compensation. She also submitted that the compensation
awarded is on the lower side and it is required to be
enhanced before this Court.
7. Learned counsel for the respondent-Insurance
Company, per contra, contended that the judgment and
award passed by Tribunal is just and reasonable, and
therefore, it should not be interfered with and the appeal
should be dismissed.
8. As rightly submitted by the learned counsel for
the claimant, the pillion rider of the motorcycle
(motorcycle was ridden by the claimant) had filed a
separate claim petition in M.V.C. No.8277 of 2008 which
was allowed in part by Tribunal on 9-10-2009 and the
appeal filed against the same in M.F.A. No.4828 of 2010
(MV) was dismissed by judgment dated 25-11-2020.
9. The effect of the said judgment arising from the
same accident is to fasten the entire liability to pay
compensation on Insurance Company. Under such
circumstances, the finding of the Tribunal to the effect
that there was contributory negligence cannot be
sustained as it would lead to conflict finding on the same
facts in two different claim petitions arising of the same
accident. Accordingly, the said finding of contributory
negligence recorded by the Tribunal is set aside.
10. In regard to the claim for enhancement of
compensation, namely Ex.P.8-Discharge Summary shows
that the claimant had suffered simple injuries (non-
grievous injury). The Tribunal having already awarded
Rs.6,200/- in this case, no enhancement on the same is
required in the facts and circumstances of the case.
Accordingly, the claim for enhancement of compensation
in this appeal is rejected. Hence, I pass the following
ORDER
i. Appeal is partly allowed;
ii. The finding of the Tribunal that there was
contributory negligence on the claimant to an
extent of 20% is set aside; and
iii. Consequently, Insurance Company is held liable
to pay the compensation with interest thereon at
the rate of 6% per annum from the date of
petition till the date of deposit and the amount
shall be deposited within six weeks' from the
date of receipt of a certified copy of this
judgment.
Sd/-
JUDGE
kvk
