Karnataka High Court

Sameer @ Mohammed Jibran S/O ... vs E Stewan S/O Rathnakar on 7 February, 2022

Bench: P.Krishna Bhat

                               1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL NO.9842 OF 2010 (MV)

BETWEEN:

       SAMEER @ MOHAMMED JIBRAN
       S/O. MOHAMMED SAIFULLA,
       AGED ABOUT 20 YEARS,
       STUDENT,
       RESIDENT OF N. T. ROAD, OLD MANDLI,
       SHIVAMOGA.
                                                   ... APPELLANT
       (BY SRI U. PANDURANGA NAYAK, ADV.)

AND:

1.     E. STEWAN
       S/O. RATHNAKAR,
       MAJOR,
       S.T.CO. BUS DRIVER, F.D.L. NO.1465/94-95,
       R/O LIG 6, BOMMANAKATTE,
       BHADRAVATHI TALUK.

2.     THE MANAGING DIRECTOR
       HUMAN TRANSPORT CO. (P.) LTD.,
       BADAGUBETTU,
       UDUPI.

3.     ORIENTAL INSURANCE CO. LTD.
       DIVISIONAL OFFICE,
       COURT ROAD, 2ND FLOOR,
       VISHNU PRAKASH,
       UDUPI.
                             2


4.   RAJOGI RAO
     S/O. BHAVANI RAO,
     MAJOR,
     DRIVER OF THE AUTO,
     LAKSHMIPURA THANDA,
     HOSALLI POST,
     SHIVAMOGGA.

5.   DEVARAJ
     S/O. RANGASWAMY,
     MAJOR,
     AUTO OWNER,
     RESIDENT OF NEAR BY MANJUNATHA BEEDA STALL,
     N. T. ROAD, HOSAHALLI,
     SHIVAMOGGA.

6.   NATIONAL INSURANCE CO. LTD.
     COVER NOTE NO.244729,
     B. H. ROAD,
     SHIVAMOGGA.
                                            ... RESPONDENTS
     (BY SRI K.N. SRINIVAS, ADV. FOR R-3;
         NOTICE TO R-1, 2, 4 TO 6 ARE DISPENSED WITH VIDE
         ORDER DATED 9-2-2012)

                           ***

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 21-6-2010 PASSED IN M.V.C.
NO.1169 OF 2009 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-III AND ADDITIONAL MACT-IV, SHIVAMOGGA,
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:
                              3


                     JUDGMENT

This appeal is at the instance of the claimant

seeking enhancement of the compensation awarded in

M.V.C. No.1169 of 2009 by judgment and award dated

21-6-2010 passed by the Fast Track-III and Additional

MACT-IV, Shivamogga.

2. Claim petition proceeded on the allegation that

on 1-10-2003 at 2:45 p.m., the claimant was proceeding

in an auto-rickshaw bearing Registration No.KA-14/4954

near Kamath Petrol Bunk, Shivamogga, the offending bus

bearing Registration No.KA-20/7803, being driven by the

Driver in a rash and negligent manner dashed against the

auto-rickshaw resulting in injuries to the claimant.

3. Before the Tribunal, all the respondents entered

appearance through their learned counsel. Respondent

No.1 is the Driver, respondent No.2 is the owner and

respondent No.3 is the Insurance Company of the bus

filed detailed statements denying the material averments

made in the claim petition. Respondent No.4 is the Driver,

respondent No.5 is the owner and respondent No.6 is the

Insurance Company of the auto-rickshaw filed written

statements denying the averments made in the claim

petition.

4. During trial, the claimant was examined as P.W.1

and Exs.P.1 to P.353 were marked. An Orthopedician

was examined as P.W.2. The respondents did not examine

any witnesses and no documents were marked.

5. After hearing the learned counsel on both sides

and perusing the records, the Tribunal allowed the

petition in part and awarded compensation of

Rs.2,86,893/- [3,18,770 minus 31,877 (10% contributory

negligence)] with interest at 6% per annum and fastened

the liability to pay the compensation on respondent No.3-

insurer of the offending bus.

6. Learned counsel for the appellant-claimant

contended that even though the claimant was a young boy

and student, aged about seventeen years, and has

suffered whole body disability to an extent of 7.5%, the

Tribunal has awarded compensation at a lower sum on

various heads of the compensation and therefore, same is

liable to be enhanced. He further contended that the

Tribunal has erred in fixing 10% of contributory

negligence on the claimant on some speculative basis and

therefore, same is liable to be set aside and the appeal is

entitled to be allowed.

7. Learned counsel for the respondent-Insurance

Company, per contra, contended that the Tribunal has

awarded just and reasonable compensation and therefore,

there is no merit in the appeal and same is liable to be

dismissed.

8. It is not in dispute that on 1-10-2003 while the

claimant was traveling in an auto-rickshaw, the Driver of

the offending bus on account of rash and negligent

driving, dashed against the auto-rickshaw. The Tribunal

upon examination of the evidence has come to the

conclusion that it is on account of rash and negligent

driving of the driver of the vehicle, the accident was

caused to the claimant. The compensation awarded in

favour of the claimant is liable to be paid by the insurer of

the offending bus. Insurance Company has not filed any

appeal calling in question the correctness of the judgment

and award.

9. Ex.P.4-Wound Certificate issued in respect of the

claimant. P.W.2-treating Doctor has been examined.

P.W.2 has noted the following injuries on the claimant:

1. 3 X 4 cm., supraficial abrasion over posterolateral aspect of upper 1/3 of ® forearm.

2. 25 X 5 X 5 cm., laceration just distal to the ® groin fold.

3. 30 X 10 X 5 cm, degloving wound below the above mentioned wound.

4. 10 X 5 X 2 cm., laceration over medial aspect of ® distal thigh.

5. 10 X 2 X 6 cm., laceration over anterior aspect of ® knee.

6. 2 X 1 cm., laceration over upper and middle third junction of ® leg anteriorly.

7. 2 X 0.5 X 0.5 cm., laceration over great toe.

8. 3 X 0.5 X 0.5 cm., laceration over second toe.

9. Type III B open fracture of ® distal femur with intercondylar extension

Injuries 2, 3 and 9 were grievous in nature."

10. The relevant case-sheet is produced at

Ex.P.257. Several X-Rays have also been produced before

the Court. Tribunal has awarded compensation of

Rs.40,000/- under the heads of pain and suffering and

the same is reasonable and accordingly, it is maintained.

Under the heads of medical expenses, the Tribunal has

awarded Rs.1,99,867/- after considering the genuineness

of the bills produced and accordingly, the same is

maintained. Evidence of P.W.2 shows that the claimant

was admitted to K.M.C. Hospital, Manipal, on 1-10-2003

and he was discharged on 7-12-2003 and therefore, he

was there in the Hospital for 68 days. P.W.2 has stated

that he was re-admitted on 16-3-2009 for the purpose of

removal of the implants and was discharge on 10-4-2009

and thus, he was in-patient for 24 days. Tribunal has

awarded Rs.8,000/- towards conveyance charges, the

same is on lower side. Therefore, I award, Rs.35,000/-

towards conveyance charges. Towards attendant's

charges, the Tribunal has not awarded any compensation.

Accordingly, I award Rs.30,000/- towards attendant's

charges. The Tribunal has awarded Rs.5,000/- towards

food and nourishment. The claimant was a young boy,

aged seventeen years at the time of accident and therefore,

taking into consideration the said fact, Rs.30,000/- is

awarded under this head.

11. Since the claimant was a student, the question

of awarding loss of earning during laid up period does not

arise and therefore, award of Rs.12,000/- by the Tribunal

is disallowed.

12. P.W.2-Orthopaedic surgeon of K.M.C. Hospital,

who treated the claimant, has noted the following injuries:

"xxx xxx xxx

6. I say that he was assessed for disability on 2.4.2008. He had the following infirmities.

1. There was extensive scar of skin grafting of the anterior aspect of right thigh.

2. He had 0-1100 range of movement of right knee and shortening of 1cm of right lower limb (femoral component).

3. Radiograph taken on 2.4.2008 shows complete union of the femoral fracture.

7. I say that based on the above infirmities he has 15% (Fifteen percent) permanent physical impairment and loss of physical function to right lower extremity. This may amount to 7.5% to whole body. I have issued the disability certificate on 15.4.2008 which bears my signature."

13. The above shows that the claimant, who is a

young boy, had suffered shortening of 1cm. of right lower

limb. Medical expert has assessed the disability to whole

body at 7.5%. The Tribunal has taken notional income of

the claimant at Rs.3,000/- per month and that appears to

be just and reasonable since the year of the accident is

2003. While affirming the notional income fixed by the

Tribunal at Rs.3,000/-, I have also kept in view the fact

that the claimant was student and the same is upheld.

Multiplier applicable to his case is '18'.

14. In view of the decision of the Hon'ble Supreme

Court in ERUDHAYA PRIYA v. STATE EXPRESS

TRANSPORT CORPORATION LIMITED reported in

2020 SCC ONLINE SC 601, SANDEEP KHANUJA v.

ATUL DANDE AND ANOTHER reported in

(2017) 3 SCC 351 and JAGADISH v. MOHAN AND

OTHERS reported in (2018) 4 SCC 571, loss of future

prospects to be taken is at 40% of the established income

while computing loss of earning capacity. Thus, loss of

earning capacity is computed at Rs.68,040/- (3,000 + 40%

x 12 x 18 x 7.5%). The Tribunal has awarded Rs.15,000/-

towards loss of amenities which is on the lower side.

Since the claimant has shortening of leg by 1 cm and

there is difficulty in movement of right knee, Rs.30,000/-

is awarded towards of loss of amenities.

15. With regard to contributory negligence fixing

10% on the claimant, the Tribunal at paragraph No.25 of

its impugned judgment and award has observed as

follows:

25. Ex.P.2 is the FIR and the contents of FIR discloses that, Autorickshaw and the bus came from the opposite direction and dashed against each other which is head on collusion between the two vehicles. Ex.P.3 is the mahazar and Ex.P.5 is the IMV report shows there was no damages to both vehicles. If really the petitioner was sitting inside the Autorickshaw properly, then there was no occasion or chances for the petitioner to sustain injuries on the right leg. The major injury sustained by the petitioner is on the right leg. The nature of injury sustained by the petitioner probabalies the defence of the 3rd respondent that, the petitioner was sitting in the Auto by protruding his leg outside the Auto or the present petitioner was sitting by the side of the Auto driver. This shows that, the petitioner also contributed negligence to some extent in the said accident. So from the material available on record, petitioner proved issued no.1 As such issue no.1 is answered in Affirmative. The

3rd respondent failed to prove issue No.3 and accordingly issue no.3 is answered in Negative."

16. On the above reasoning, the Tribunal has

recorded a finding that the claimant was contributorily

negligent to an extent of 10%. It is required to be noticed

that in the claim petition, there is clear averment that the

accident had occurred due to rash and negligent driving of

the Driver of the offending bus. During cross-examination

of P.W.1, he has maintained that accident had occurred

due to rash and negligent driving of the Driver of the

offending bus. In the cross-examination, certain

suggestions were put to the effect that he had protruded

his hands and legs outside auto-rickshaw. P.W.1 has

stood his ground and stated that he was sitting on the

passenger seat of auto-rickshaw. In spite of the same, the

respondents have chosen to examine the Driver of the

offending bus. Under such circumstances, the Tribunal

had no basis to draw an inference that the claimant had

contributed by way of his negligence to the occurrence of

the accident and the finding to the said effect recorded by

the Tribunal is liable to be set aside.

17. Thus, the claimant is entitled to following

compensation:

As awarded As awarded by the Heads by this Court Tribunal (in Rs.) (in Rs.) Pain and suffering 40,000.00 40,000.00 Medical expenses 1,99,897.00 1,99,897.00 Conveyance charges 8,000.00 35,000.00 Attendant's charges - 30,000.00 Food and nourishment 5,000.00 30,000.00 Loss of earning during 12,000.00 -

laid up period Loss of earning 38,880.00 68,040.00 capacity Loss of amenities 15,000.00 30,000.00 Total 3,18,770.00 4,32,937.00

Accordingly, the appeal is hereby allowed. The

impugned judgment and award dated 21-6-2010 passed

by the Fast Track-III and Additional MACT-IV,

Shivamogga, in M.V.C. No.1169 of 2009 is hereby modified

awarding a sum of 4,32,937/- as against Rs.3,18,770/-

awarded by the Tribunal with interest at the rate of 6%

per annum from the date of petition till the date of deposit.

The finding of the Tribunal that there was contributory

negligence on the claimant to an extent of 10% is set aside

and Insurance Company is directed to deposit the award

amount within eight weeks' from the receipt of a certified