Karnataka High Court

S V Shankarappa vs Vinod D on 30 June, 2022

Bench: H T Prasad

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 30TH DAY OF JUNE 2022

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

          MFA No.3812 OF 2019(MV)

BETWEEN

S V SHANKARAPPA
S/O VENKATARAMAPPA
AGED ABOUT 35 YEARS
R/AT SANNAMUGURU VILLAGE
MOTHAKAPALLI POST
MULBAGAL TALUK
KOLAR DISTRICT-563131.
                                       ...APPELLANT

(BY SRI.P SURESH, ADV.)

AND

1.    VINOD D
      S/O DHANAPALA YELLAPPA,
      NO.124, 1ST FLOOR
      8TH A MAIN, 4TH STAGE
      4TH BLOCK, BASAVESHWARANAGAR
      BANGALORE-79.

2.    ICICI LOMBARD GEN. INS. CO.LTD
      NO.121, THE ESTATE BUILDING
      9TH FLOOR, DICKENSON ROAD
                          2




     M.G.ROAD, BANGALORE-01
     REP BY ITS INCHARGE MANAGER.

                                    ...RESPONDENTS

(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
24/07/2018, PASSED IN MVC NO.5629/2016, ON THE
FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE
& XXXIII ACMM., MEMBER, MACT, BENGALURU
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment dated 24.7.2018 passed by MACT,

Bengaluru in MVC 5629/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 5.6.2016 when the claimant,

his wife and his two minor children aged about 2 and

4 years came over to Mulbagal in a Passion Pro

motorcycle bearing registration No.KA-07-R-5835 in

order to return back to Thayaluru, at that time, car

bearing registration No.KA-04-MN-8881 being driven

by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondents

appeared through their respective counsel and filed

written statements in which the averments made in

the petition were denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Naveen Kumar.K.L. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P18. On behalf of the

respondents, neither any witness was examined nor

any document was produced. The Claims Tribunal, by

the impugned judgment, inter alia, held that the

accident took place on account of contributory

negligence. The Tribunal further held that after

deducting 25% contributory negligence on the part of

the claimant, the claimant is entitled to a

compensation of Rs.187,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit the said compensation amount

along with interest. Being aggrieved, the present

appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Negligence:

The accident occurred due to sole negligence of

the driver of the car. The Tribunal has erred in holding

that the claimant has contributed to the accident to

the extent of 25%. It is very clear from the evidence

of the claimant, FIR and complaint that the driver of

car was negligent in causing the accident.

Quantum of compensation:

Firstly, even though the claimant claims that he

was working as a Bus Conductor in private bus and

earning Rs.25,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.7,000/- per

month.

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered disability of 67% to

particular limb and 22% to whole body. But the

Tribunal has taken the whole body disability at 7%,

which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 15 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Further, Tribunal has not granted any compensation

for 'loss of income during laid-up period'. Hence, he

sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Negligence:

The claimant was traveling on the motorcycle

along with 3 pillion riders i.e., wife and two minor

children. Since there were three pillion riders sitting

behind him, the claimant was not able to ride the

motorcycle properly and it has restricted his hand and

leg movement and it has caused discomfort for him to

ride the motorcycle. Therefore, the Tribunal after

considering the evidence of the parties and materials

available on record has rightly held that the claimant

has also contributed to the accident to the extent of

25%.

Quantum of compensation

Firstly, even though the claimant claims that he

was earning Rs.25,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, the doctor in his evidence has stated

that the claimant has suffered disability of 67% to

particular limb and 22% to whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 7%.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable and it does not call for

interference.

Fourthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side. Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the certified copies of the records made

available by the parties.

RE: NEGLIGENCE

9. The specific case of the claimant is that on

5.6.2016 when the claimant, his wife and his two

minor children aged about 2 and 4 years came over to

Mulbagal in a Passion Pro motorcycle bearing

registration No.KA-07-R-5835 in order to return back

to Thayaluru, at that time, car bearing registration

No.KA-04-MN-8881 being driven by its driver at a high

speed and in a rash and negligent manner, dashed to

the vehicle of the claimant. As a result of the

aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

The claimant to prove his case has examined

himself as PW-1 and produced 18 documents. The

claimant in his deposition has reiterated the

averments made in the claim petition. On the basis of

the complaint, FIR has been registered and after

investigation, police have filed charge sheet against

the driver of the car.

After going through the complaint, FIR, charge

sheet and evidence of the claimant, I am of the

opinion that the Tribunal after considering the

evidence of the parties and materials available on

record has rightly held that the claimant has also

contributed to the accident to the extent of 25% and

the driver of the car has contributed to the extent of

75%. There is no error in the said finding of the

Tribunal.

RE: QUANTUM OF COMPENSATION

10. The claimant claims that he was earning

Rs.25,000/- per month. He has not produced any

documents to prove his income. Therefore, in the

absence of proof of income, notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2016, the notional

income has to be taken at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained closed comminuted subtrachateric femur

fracture right and closed both bones midshaft

comminuted right leg, tenderness over right forearm,

severe injuries to head and other parts of the body.

The doctor in his evidence has stated that the

claimant has suffered disability of 67% to particular

limb and 22% to whole body. Therefore, taking into

consideration the deposition of the doctor and injuries

mentioned in the wound certificate, the whole body

disability can be taken at 22%. The claimant is aged

about 35 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus, the

claimant is entitled for compensation of Rs.401,280/-

(Rs.9,500*12*16*22%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 5 months. Therefore, the claimant is entitled for

compensation of Rs.47,500/- (Rs.9,500*5 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 15 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. He has suffered lot of pain during

treatment and he has to suffer with the disability

stated by the doctor throughout his life. Considering

the same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

amenities' from Rs.10,000/- to Rs.40,000/- and under

the head of 'pain and sufferings' from Rs.40,000/- to

Rs.50,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

11. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 50,000 Medical expenses 85,000 85,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges

Loss of income during 0 47,500 laid up period Loss of amenities 10,000 40,000 Loss of future income 94,000 401,280 Future medical expenses 10,000 10,000 Total 249,000 643,780 Less: 25% negligence 62,250 160,945 on the part of the claimant Balance 186,750 482,835 Rounded off 187,000 483,000

12. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.483,000/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (enhanced amount shall carry interest at 6%

p.a.) from the date of filing of the claim petition till

the date of realization, within a period of six weeks

from the date of receipt of copy of this judgment.

In view of the order dated 30.6.2022 passed by

this Court, the claimant is not entitled for interest for