Sharadalingaiah vs Gayathri
2022 Latest Caselaw 2074 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                M.F.A. NO.5028 OF 2011 (MV-I)
                     CONNECTED WITH
             M.F.A. CROB. NO.183 OF 2013 (MV-I)
IN M.F.A. NO. 5028/2011:
BETWEEN:

       SHARADALINGAIAH
       W/O. M. LINGAIAH,
       AGED ABOUT 35 YEARS,
       RESIDING AT D.NO.1203,
       ASHOKANAGAR,
       MANDYA-571 401.
                                                 ... APPELLANT
       (BY SRI R. PRAMOD, ADV.)

AND:

1.     GAYATHRI
       W/O. NARAYANA,
       AGED ABOUT 42 YEARS,
       RESIDENT OF NAGANAHALLI VILLAGE,
       KASABA HOBLI,
       MYSORE TALUK - 571 405.

2.     JAYAPRAKASH P.
       S/O. PUTTALINGAIAH,
       AGED ABOUT 25 YEARS,
       D.NO.1203, ASHOKANAGARA,
       MANDYA-571 401.
                                               ... RESPONDENTS
       (BY SRI LOKESHA D.K., ADV., FOR SRI P. NATARAJU, FOR R-1,
           NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED
            14-9-2015)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 5-3-2011 PASSED IN M.V.C.
NO.64 OF 2009 ON THE FILE OF THE IV ADDITIONAL DISTRICT
JUDGE, MACT, MYSURU, AWARDING A COMPENSATION OF
Rs.2,57,935/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE
OF PETITION TILL REALISATION.

IN MFA CROB. NO.183/2013:
BETWEEN:

       GAYATHRI
       AGED ABOUT 44 YEARS,
       W/O. NARAYANA,
       R/O. NAGANAHALLI VILLAGE,
       KASABA HOBLI,
       MYSORE TALUK AND DISTRICT- 570 008.

                                          ... CROSS OBJECTOR
       (BY SRI LOKESHA D.K., ADV., FOR SRI P. NATARAJU)

AND:

1.     JAYAPRAKASH P.
       AGED ABOUT 29 YEARS,
       S/O. PUTTALINGAIAH,
       7TH CROSS, ALAHALLI,
       MANDYA - 571 401.

2.     SHARADA LINGAIAH
       AGED ABOUT 36 YEARS,
       W/O. M. LINGAIAH,
       D.NO.1203, ASHOKANAGARA,
       MANDYA-571 401.
                                             ... RESPONDENTS
       (BY SRI R. PRAMOD, ADV., FOR R-2,
           NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
            DATED 24-11-2015)
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      THIS MFA CROB. IN MFA NO.5028 OF 2011 FILED UNDER
ORDER 41 RULE 22 OF THE CODE OF CIVIL PROCEDURE,
AGAINST THE JUDGMENT AND AWARD DATED 5-3-2011 PASSED
IN M.V.C. NO.64 OF 2009 ON THE FILE OF THE VI ADDITIONAL
DISTRICT JUDGE, MACT, MYSORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     MFA CONNECTED WITH MFA CROB. ARE COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:


                      JUDGMENT

M.F.A. No.5028 of 2011 is filed at the instance of the

owner of the offending car and M.F.A. CROB. No.183 of

2013 is filed at the instance of the claimant calling in

question the legality and correctness of the judgment and

award dated 5-3-2011 in M.V.C. No.64 of 2009 passed by

the VI Additional District Judge and Motor Accident

Claims Tribunal, Mysuru.

2. The claim petition was filed with the averments

that on 23-3-2008 at 5:40 p.m., the claimant was waiting

on the footpath near Yeliyooru Circle on Mysuru-

Bengaluru Main Road for catching bus, at that time, a car

bearing Registration No.KA-11 M-0197 came in a rash and

negligent manner and dashed against the claimant

resulting in serious injuries. There was no insurance

cover for the offending car. Both the Driver and the owner

of the car have contested the proceedings by filing written

statements.

3. During trial, the claimant examined herself as

P.W.1, an Orthopedician was examined as P.W.2, an

eyewitness as P.W.3 and Exs.P.1 to P.34 were marked.

The respondents examined the owner of the car as R.W.1,

examined R.W.2-Doctor from Government Hospital,

Mandya, and Exs.R.1. to R.5 were marked.

4. After hearing the learned counsel on both sides

and perusal of the records, the Tribunal allowed the claim

petition in part and awarded compensation of

Rs.2,57,935/- with interest thereon at 6% per annum and

it also held that the claimant was contributorily negligent

to an extent of 15%.

5. Learned counsel for the appellant-owner of the

car vehemently contended that the claimant herself was

negligent as she had suddenly run across the Highway

and on account of the same, she suffered injuries.

Therefore, he submitted that the accident resulting in

injuries had taken place on account of sole negligence of

the claimant herself and therefore, the owner is not liable

to pay the compensation. He further submitted that the

Tribunal has erred in recording a finding that the claimant

had suffered 15% disability to the whole body. He also

submitted that the Tribunal has committed error in

granting medical expenses to an extent of Rs.1,49,000/-

even though, the claimant had produced false bills. He

finally contended that the quantum of compensation

awarded is excessive and therefore, the appeal requires to

be allowed by setting aside the impugned judgment and

award.

6. Learned counsel for the cross-objector-claimant

submitted that the Tribunal has awarded a lower

compensation by taking into consideration monthly

income at Rs.3,000/-. Since the accident took place in

the year 2008, notional income of the claimant should

have been taken at Rs.4,500/- per month. He also

submitted that on various heads of compensation, the

Tribunal has awarded a lower compensation. He also

submitted that evidence clearly establishes that accident

had taken place due to negligence of the Driver of the car

and in spite of the same, the Tribunal committed an error

by fixing 15% of contributory negligence on the claimant

herself and therefore, the cross-objection requires to be

allowed and compensation requires to be enhanced.

7. I have given my anxious consideration to the

submissions made on both sides and I have carefully

perused the records.

8. It cannot be disputed that on 23-3-2008 at

about 5:40 p.m., while the claimant was waiting for the

bus near Yeliyooru Circle on Mysuru-Bengaluru Highway,

the offending car came in a rash and negligent manner

and dashed against her resulting in grievous injuries.

9. Exs.P.1 is the F.I.R., Ex.P.2 is the complaint and

Ex.P.3 is the final report/charge-sheet and the same is

against the Driver of the offending car. Ex.R.4 is the spot

mahazar, which also contains the sketch map of scene of

occurrence of the accident. This also shows that accident

had taken place on the extreme edge of the tar road from

where the mud portion of the road has commenced. P.W.3

is an eyewitness, who is cited as C.W.2 in the charge-

sheet. He has stated that the claimant was standing on

the footpath and at that time, the Driver of the offending

car came in a rash and negligent manner and dashed

against the claimant resulting in injuries. On perusal of

the evidence placed, it is impossible to sustain the finding

recorded by the Tribunal that the claimant was

contributorily negligent to an extent of 15% in causing the

accident. On the other hand, evidence clearly shows that

accident had taken place solely due to rash and negligent

driving of the Driver of the car. Accordingly, the findings

of the Tribunal to an extent it holds that the claimant was

contributorily negligent to an extent of 15% is set aside.

10. Claimant was aged forty years at the time of

accident. Therefore, appropriate multiplier applicable is

'14'. Since the accident took place in the year 2008, the

claimant's notional income has to be taken at Rs.4,500/-

per month as per the chart prepared by the Karnataka

Legal Services Authority.

11. The Wound Certificate and the Discharge

Summary produced goes to show that the claimant had

suffered fracture of left supra and infra public ramus,

open Type-II A left femur fracture, open Type-III B left

lower 1/3rd fracture of tibia with adductor muscle tear

issued by Apollo BGS Hospitals, Mysuru. P.W.2 has

assessed the disability. He has treated the claimant in

Appollo BGS Hospitals and after noticing various

restrictions caused on account of the fracture suffered, he

has opined that the claimant had suffered disability to an

extent of 15% to the whole body. Restrictions in the

movement noticed are in the hip and knee and also her

inability to sit cross-legged on the floor. In that view of the

matter, the whole body disability resulting in functional

disability is required to be taken at 15% of the whole body.

12. 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 will have to be added to the established income.

Since the claimant was aged forty years at the time of

accident, as per the law laid down by the Constitution

Bench of the Hon'ble Supreme Court in NATIONAL

INSURANCE COMPANY LIMITED v. PRANAY SETHI AND

OTHERS reported in (2017) 16 SCC 680, future

prospects to be taken is at 25% of the established income.

Thus, loss of earning capacity is computed at

Rs.1,41,750/- (4,500 + 25% x 12 x 14 x 15%).

13. Under the heads of pain and suffering, the

Tribunal has awarded Rs.40,000/- and in view of three

fractures suffered, the same is reasonable and same is

maintained. With regard to medical expenses,

Rs.1,49,000/- is awarded by the Tribunal. Learned

counsel for the owner of the vehicle has made a grievance

that while considering the grant of compensation, certain

bills which were not genuine in as much as names and

other particulars have not been mentioned therein have

been included. The Tribunal has taken note of the said

submission and after considering Ex.P.26¸ it has overruled

the same and finally concluded that the claimant is

entitled to Rs.1,49,000/- under the head of medical

expenses and in that view of matter, I do not find any

merit in the contention and therefore, medical expenses of

Rs.1,49,000/- is maintained. With regard to food and

nourishment charges, the Tribunal has awarded

Rs.1,500/-. The claimant was in-patient for fifteen days

in the Hospital. In view of the same, she is required to be

awarded to Rs.15,000/- towards food, nourishment and

attendant's charges. The Tribunal has awarded

Rs.2,000/- towards conveyance charges, which is on the

lower side. Therefore, Rs.4,000/- is awarded under this

head. The Tribunal has considered that the claimant was

not in a position to do any work for five months and

awarded Rs.15,000/- under loss of income during laid up

period. Since the notional income is fixed at Rs.4,500/-

per month, Rs.22,500/- (4,500 X 5) is required to be

awarded towards loss of income during laid up period.

P.W.2-treating Doctor has deposed that the claimant has

to undergo further surgeries and he would have to bear

expenses of Rs.20,000/-. Accordingly, same is maintained

towards future medical expenses. The claimant has to

undergo difficulties in her day-to-day activities like

movement of limbs and sitting on the floor. Therefore,

under the heads of loss of amenities, a total sum of

Rs.20,000/- is awarded.

14. Thus, in all the claimant is entitled to following

compensation:

As awarded by this Heads Court (in Rs.) Pain and suffering 40,000.00 Medical expenses 1,49,000.00 Food, nourishment and 15,000.00 attendant's charges Conveyance charges 4,000.00 Loss of income during 22,500.00 treatment period Future medical expenses 20,000.00 Future loss of earning 1,41,750.00 Loss of amenities 20,000.00 Total 4,12,250.00

15. Accordingly, I pass the following

ORDER

i. M.F.A. No.5028 of 2011 is dismissed;

ii. M.F.A. CROB. No.183 is 2013 is allowed. The impugned judgment and award dated 5-3-2011 passed by the VI Additional District Judge and Motor Accident Claims Tribunal, Mysuru, in M.V.C. No.64 of 2009 is hereby modified awarding a sum of 4,12,250/- as against Rs.3,03,100/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of deposit;

iii. The finding of the Tribunal that there was contributory negligence on the claimant to an extent of 15% is set aside;

iv. Further, Rs.20,000/- awarded under the head of future medical expenses shall not carry any interest. Adjustment to be given to the statutory deposit already made by the owner of the car;

v. Award amount shall be deposited by the appellant-owner before the Tribunal within twelve weeks' from the date of receipt of a certified copy of this judgment; and

vi. Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

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