Karnataka High Court
Shri.Mohammed Inus Ismail ... vs Sri.Parashuram Pundalik Gurav on 16 February, 2022
Bench: S.Vishwajith Shetty
1 M.F.A.100293/2016
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.100293/2016 (MV)
C/W
M.F.A.No,100294/2016
IN M.F.A. No.100293/2016
BET WEEN
SHRI.MOHAMMED INU S ISMAIL MOKASHI,
AGE: 27 YEARS, OCC: CENTERING WORK,
NOW NIL, R/O SIDDESHWAR NAGAR, MUCHANDI,
TAL: DIST : B ELAGAVI.
... APPELLANT
(BY SRI.HARIS H S. MAIGUR, ADVOCAT E)
AND
1 . SRI.PARAS HURAM PUNDALIK GURAV,
AGE: MAJOR, OCC: BUSINESS,
R/O: AT ZU NJWAD, K.N. PO: B EKWAD,
TAL: KHANAPU R, DIST : B ELAGAVI.
2 . THE DIV IS IONAL MANAGER,
THE NATIONAL INSURANCE COMPANY LIMITED,
THROUGH ITS DIVIS IONA L OFF ICE AT,
1ST FLOOR, RAMDEV GALLI,
B ELAGAVI.
...RESP ONDENTS
(BY SRI.C.V.ANGADI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE JU DGMENT AND AWARD DATED 24.11.2015,
PASSED IN MVC No.1703/ 2014 ON T HE FILE OF THE III
ADDIT IONAL SENIOR CIV IL J U DGE AND MEMB ER
2 M.F.A.100293/2016
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ADDIT IONAL MOT OR ACCIDENT CLAIMS TRIB UNAL,
BELAGAVI, PARTL Y ALLOWING THE CLAIM PET IT ION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No,100294/2016
BET WEEN
SRI.SHIVAJ I RU DRAPPA KONI,
AGE: 27 YEARS, OCC: MASON, NOW NIL,
R/O: SIDDESHWA R NAGAR, MU CHANDI,
TAL: DIST : B ELAGAVI.
... APPELLANT
(BY SRI.HARIS H S. MAIGUR, ADVOCAT E)
AND
1 . SRI.PARAS HURAM PUNDALIK GURAV,
AGE: MAJOR, OCC: BUSINESS,
R/O AT ZU NJ WAD, K.N. PO: BEKWAD,
TAL: KHANAPU R, DIST : B ELAGAVI.
2 . THE DIV IS IONAL MANAGER,
THE NATIONAL INSURANCE COMPANY LIMITED,
THROUGH ITS DIVIS IONA L OFF ICE AT,
1ST FLOOR, RAMDEV GALLI,
B ELAGAVI.
...RESP ONDENTS
(BY SRI.C.V.ANGADI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE JU DGMENT AND AWARD DATED 24.11.2015,
PASSED IN MVC No.1704/ 2014 ON T HE FILE OF THE III
ADDIT IONAL SENIOR CIV IL J U DGE AND MEMB ER
ADDIT IONAL MOT OR ACCIDENT CLAIMS TRIB UNAL,
BELAGAVI, PARTL Y ALLOWING THE CLAIM PET IT ION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEA LS COMING ON F OR ORDERS, THIS DAY
THE COU RT DELIVERED THE FOLL OWING:
3 M.F.A.100293/2016
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J U D G M E N T
The claimants in M.V.C.Nos.1703/2014 and
1704/2014 have preferred these two appeals against
the common jud gment and award dated 24 t h November
2015 passed by the Additional M.A.C.T., Belagavi (for
brevity "the Trib unal").
2. Though these appeals are listed for
admission, with the consent of the learned counsels
app earing for the parties, the appeals are taken up for
final disposal.
3. The parties to this app eal are referred to by
their rankings before the Trib unal for the sake of
convenience.
4. The und isputed facts of the case are, on
04.06.2014 the claimants in these two cases had gone
to Zaad Ankale to attend the marriag e ceremony and
when they were returning from the marriag e in the
motor cycle b earing registration No.KA-22/EA-5503,
the offend ing TATA LPT bearing registration No.KA-31-
4995 dashed against their motor cycle near Haddi
4 M.F.A.100293/2016
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factory and caused the accident. At the time of
accid ent, Shivaji Koni/claimant in M.V.C.No.1704/2014
was rid ing the motor cycle while claimant in
M.V.C.No.1703/2014 Mohammed Inus Ismail Mokashi
was a pillion rider. In the said accid ent, the rider as
well as the pillion rider of the motor cycle had suffered
grievous injuries and they were ad mitted in a private
hosp ital wherein they were treated for their injuries. It
is under these circumstances, the claim petitions were
filed by them under Section 166 of the Motor Vehicles
Act, 1988, which were p artly allowed by the Tribunal
awarding compensation of `2,22,992/- and `1,18,689/-
to the claimants in M.V.C.Nos.1703/2014 and
1704/2014 respectively.
5. The Trib unal had held the rider of the motor
cycle Shivaji Koni guilty of contributory neg ligence and
according ly had held that he was entitled only for 50%
of the comp ensation awarded by the Tribunal. It is
und er these circumstances, the claimants are before
this court challenging the impugned judgment and
award p assed by the Tribunal.
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6. Learned counsel for the claimants sub mits that
the Tribunal had erred in sadd ling the contributory
negligence on the rid er of the motor cycle when there
is no evid ence b efore the Trib unal to p rove the same.
He submits that the charge sheet has b een filed b y the
Police as ag ainst the driver of the offending vehicle and
the respondents had not led any evidence to p rove the
contributory negligence of the rid er of the motor cycle
and therefore, the Tribunal was not justified in holding
that the rid er of the motor cycle was guilty of
contributory negligence. He also submits that the
comp ensation awarded by the Tribunal in both the
claim petitions is on the lower sid e and the notional
income has also been considered by the Tribunal on a
lower side, which has resulted in award ing meag er
comp ensation and according ly p rays to enhance the
comp ensation.
7. Per contra, learned counsel appearing for the
insurer submits that the records would go to show that
the rider of the motor cycle was und er the influence of
6 M.F.A.100293/2016
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alcohol at the time of accident and therefore, the
Tribunal had rightly held him guilty of contributory
negligence. He submits that the compensation awarded
by the Trib unal in both the cases is just and proper and
needs no interference and therefore, prays to dismiss
the appeals.
8. The accid ent in question and the involvement of
the offend ing TATA LPT bearing registration No.KA-31-
4995 in the said accident, which had occurred on
04.06.2014, is not in dispute. The fact that the
claimants were injured in the said accid ent is also not
in dispute. It is also not in dispute that the charg e
sheet has been filed by the Police with regard to the
said accid ent only as ag ainst the driver of the offending
TATA LPT b earing reg istration No.KA-31-4995. The
Tribunal taking into consideration the Motor Vehicle
Insp ection Report/Ex.P7 wherein it was found that both
the vehicles were damag ed on the front sid e, has held
that the rider of the motor cycle Shivaji Koni was also
guilty of contributory negligence and accordingly
apportioned the same at 50%. The Tribunal further
7 M.F.A.100293/2016
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has taken into consideration that Shivaji Koni was
und er the influence of alcohol and therefore, held him
guilty of contributory negligence.
It is not in d ispute that the charge sheet has b een
filed only as ag ainst the d river of the offending vehicle
TATA LPT b earing reg istration No.KA-31-4995. The
respondents have not led any evid ence to prove the
contributory negligence of the rider of the motor cycle.
Merely for the reason that there is a mention in the
medical record that had come into existence
immediately after the accident that the rid er of the
motor cycle had consumed alcohol at the time of
accid ent, it cannot be said that the accident was
caused due to the intoxication as a result of
consumption of alcohol. The respondents have not led
any evidence to prove that the accid ent in q uestion was
caused as a result of the intoxication which was caused
due to consumption of alcohol by the rider of the motor
cycle. To prove that the accident was caused due to
the intoxication of alcohol consumed by the rid er of the
motor cycle, the respondents ought to have examined
8 M.F.A.100293/2016
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the Doctor, who had treated the rid er of the motor
cycle immediately after the accident in question. He
would have been the best person to speak as to
whether the consump tion of alcohol by the rid er of the
motor cycle could have imp aired his mental status as
well as his ability to rid e the motor cycle. In the
absence of any such evid ence, merely for the reason
that the rider of the motor cycle had consumed alcohol
at the time of accident, it cannot be said that he had
contributed to the accident in question, more so, when
the Police after investig ation had filed charg e sheet
only as against the driver of the offending vehicle TATA
LPT bearing registration No.KA-31-4995. Further, the
accid ent is a result of head-on collusion and therefore,
naturally both the vehicles would have been damag ed
and even for the said reason, the Tribunal was not
justified in holding that the rid er of the motor cycle is
guilty of contributory neglig ence. Therefore, in my
consid ered view, the Tribunal has grossly erred in
hold ing the rider of the motor cycle Shivaji Koni guilty
of contributory neglig ence and therefore, the said
9 M.F.A.100293/2016
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finding recorded by the Tribunal while answering issue
No.1 is not sustainab le and accordingly, the same is set
aside and it is held that the accident in question was
caused solely d ue to rash and neglig ent d riving of the
driver of the TATA LPT vehicle bearing registration
No.KA-31-4995.
9. The next question that arises for consid eration
in these app eals is with reg ard to the adeq uacy of
comp ensation awarded by the Trib unal to the
claimants.
10. The claimant in M.V.C.No.1703/2014 was ag ed
about 26 years as on the date of accident.
Ex.P4/wound certificate would go to show that the
claimant had suffered the following injuries:
"Fracture of right head of femur with
displacement of fracture fragment
superiority.
Both hip joints and SI joints appear normal.
Pubic symphysis appears normal.
No evidence of nay litic/sclerotic lesion."
10 M.F.A.100293/2016
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The claimant was admitted as an inp atient for a total
period of 27 d ays. The Doctor, who had treated him,
was examined before the Trib unal as PW-4 and he has
assessed the disab ility to the particular limb at 35%.
The Tribunal has taken the notional income of the
claimant at `6,000/- and consid ering the disab ility to
the whole body at 12% has award ed a compensation of
`1,46,880/- towards loss of future income d ue to
disab ility. Since the accident is of the year 2014,
having reg ard to the income chart maintained by the
Karnataka Leg al Services Authority, the notional
income of the claimant ought to have b een taken at
`7,500/- per month and if the d isability is considered
to the whole body at 12%, the claimant would be
entitled for a total comp ensation of `1,83,600/- as
against `1,46,880/- awarded by the Tribunal.
11. The comp ensation awarded by the Trib unal
towards medical expenses and incidental exp enses
remain unaltered. Towards p ain and suffering, the
claimant is entitled for a sum of `35,000/- as ag ainst
`25,000/- award ed by the Trib unal. The claimant is
11 M.F.A.100293/2016
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entitled for compensation of `22,500/- towards loss of
income during laid-up period as against `3,000/-
award ed by the Tribunal. The claimant is also entitled
for a further sum of `30,000/- towards loss of
amenities in future life. Therefore, in all the claimant
is entitled for a total compensation of `3,19,212/-
as ag ainst `2,22,992/- awarded by the Trib unal, which
would be as follows:
1 Loss of future income `1,83,600/-
2 Pain and suffering `35,000/-
3 Medical exp enses `33,112/-
4 Loss of income during laid `22,500/-
up period
5 Loss of future amenities `30,000/-
6 Incid ental exp enses `15,000/-
Total `3,19,212/-
The enhanced amount of compensation shall carry
interest @ 6% p er annum from the d ate of petition till
realization.
12. The claimant in M.V.C.No.1704/2014 was ag ed
about 27 years as on the d ate of accid ent. The
material on record would go to show that the claimant
had suffered fracture of 1 s t , 3 r d and 5 t h ribs and also
fracture of right mandib le and right coronoid. The
12 M.F.A.100293/2016
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Doctors/PWs-3 and 5, who have been examined before
the Tribunal, have issued the disability certificate
stating that the functional disability of the limbs were
at 40% and 50% resp ectively. However, the fact
remains that the said Doctors had not treated the
claimant. The fracture suffered by the claimant is not
to any major bone. In add ition to the fracture of ribs,
the other two fractures caused are to the mandible and
coronoid, which would not have a d irect bearing with
regard to the earning capacity of the claimant.
However, having reg ard to the evidence on record ,
which would go to show that the said fractures are
malunited , it cannot b e said that there is no disability
as such caused to the claimant, who is said to be a
mason by avocation. Therefore, in my considered view,
if the disability caused to him due to injuries suffered
in the accident is taken at 10% to the whole body, it
would meet the ends of justice. The notional income of
the claimant, having reg ard to the year of accident, is
required to be taken at `7,500/- per month and in the
said event, the claimant would be entitled for a sum of
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`1,53,000/- towards loss of future income d ue to
disab ility. The compensation award ed by the Tribunal
towards medical exp enses at `94,937/- remains
unaltered. Towards p ain and suffering , the claimant is
held to be entitled for a total compensation of
`60,000/-. The claimant is entitled for a sum of
`22,500/- towards loss of income during laid up period.
The claimant is also entitled for a sum of `10,000/-
towards incid ental expenses and for a sum of `40,000/-
towards loss of amenities in future life. In the said
event, the claimant would be entitled for a total
comp ensation of `3,80,437/- as ag ainst `2,37,337/-
award ed by the Tribunal, which would be as follows:
1 Loss of future income `1,53,000/-
2 Pain and suffering `60,000/-
3 Medical exp enses `94,937/-
4 Loss of income during laid `22,500/-
up period
5 Loss of future amenities `40,000/-
6 Incid ental exp enses `10,000/-
Total `3,80,437/-
The enhanced amount of compensation shall carry
interest @ 6% p er annum from the d ate of petition till
realization.
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13. The insurer of the offending vehicle TATA LPT
bearing registration No.KA-31-4995 is directed to
deposit the compensation amount with interest before
the Tribunal within a p eriod of six weeks from the date
of receipt of certified copy of this ord er.
14. The ord er passed by the Trib unal insofar as it
relates to disbursement and deposit, etc., remains
unaltered and shall b e applicable even in resp ect of the
enhanced amount of comp ensation.
The Miscellaneous first app eals are p artly allowed.
The judgment and award d ated 24 t h November 2015
passed by the Additional M.A.C.T., Belagavi in
M.V.C.No.1703/2014 and 1704/2014 is according ly
modified.
Sd/-
JUDGE
KNM/-
