Sreenivasulu. G vs M/S. The Oriental Insurance Co. ...
2022 Latest Caselaw 10049 Kant

                              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.830 OF 2019(MV)

BETWEEN:

Sreenivasulu G.,
S/o G. Linganna,
Aged about 37 years,
R/at # 146/69,
"B" Main Road, 6th Block,
Rajajinagar, Bengaluru-560 010.                ... Appellant

(By Sri.Sridhar D.S., Advocate)

AND:

1.     M/s. The Oriental Insurance Co. Ltd.,
       R/by its Manager,
       # 44/45, Leo Shopping Complex,
       F M Cariappa Road Cross,
       Bengaluru-560 001.

2.     Akihilesh S,
       S/o Shailendra H.C., Major,
       R/o Shree Shyla Nilaya, Opp.
       To Dasappa Layout,
       Tank Road, Maruthi Nagar,
       Tumakuru-572101.                   ... Respondents

(By Sri.M.P.Srikanth, Advocate for R1:
Sri. A.V.Amarnathan, Advocate for R2)
                             2



      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:30.10.2018 passed
in MVC No.8288/2016 on the file of the XXI Additional
Small Causes Judge and XIX ACMM, Member, MCT(SCCH-
23) , partly allowing the claim petition for compensation
and seeking enhancement of compensation.

      This MFA, coming on for hearing, this day, this
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 and decree dated 30.10.2018 passed

by MACT, Bengaluru (SCCH-23) in MVC

No.8288/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 02.09.2016 at about 7.30

p.m. the claimant was walking in front of 'D' Mart on

NH-7, Hosur - Bangalore service road, Electronic city,

Bangalore. At that time, a motorcycle bearing

registration No.KA-06/EA-4598 being ridden by its

rider at a high speed and in a rash and negligent

manner, dashed to 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 respondent Nos.1

and 2 appeared through counsel and filed separate

written statements in which the averments made in

the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law.

It was further pleaded by respondent No.1 that

the accident was due to the rash and negligent riding

of the vehicle by the claimant himself. It was further

pleaded that the driver of the offending vehicle did not

have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, they

sought for dismissal of the petition.

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.Nagaraj B.N. was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P18. On behalf of the respondents, three

witnesses were examined as RW-1 to RW-3 and got

exhibited documents namely Ex.R1 to Ex.R7. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent riding of the offending vehicle by its

rider, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.97,137/- along with

interest @ 6% p.a. and directed the Insurance

Company to deposit 80% of the compensation

amount, i.e., 77,710/- along with interest. Being

aggrieved, this appeal has been filed.

6. Sri D.S.Sridhar, the learned counsel for the

claimant has raised the following contentions:

Firstly, the accident occurred due to the

negligence of the rider of the motorcycle bearing

registration No.KA-06/EA-4598. The rider of the

motorcycle ridden the same in a rash and negligent

manner and dashed to the claimant. The Tribunal has

erred in holding that the claimant has contributed

20% to the accident.

Secondly, police have registered FIR against the

rider of the motorcycle and they have filed the charge

sheet. It is very clear that the rider of the motorcycle

is negligent in causing the accident. The finding of the

Tribunal that the claimant has contributed 20% to the

accident is an error apparent on the face of the record

and contrary to the materials available on record.

Thirdly, due to the accident the claimant has

suffered grievous injuries. He was inpatient for a

period of 5 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 and he has to suffer the disability and

unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings', and other

incidental expenses are on the lower side and the

Tribunal has not awarded any compensation under the

head 'loss of amenities'.

Fourthly, due to the accident the claimant was

unable to attend the office for a period of 2 ½ months

and he lost salary for that period. To prove the same

he has produced Ex.P9 - letter issued by the

employer. But the Tribunal has not awarded any

compensation for 'loss of income during laid-up

period'. Hence, he sought for allowing the appeal.

7. On the other hand, Sri M.P.Srikanth, the

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, it is not in dispute that the claimant was

crossing the road where there was no zebra crossing

and it was a service road on NH-7, Bangalore - Hosur

road and the flow of the traffic is very heavy. The

claimant without observing the vehicles has suddenly

crossed the road and the accident has occurred. The

same is clear from the sketch prepared by the police.

But the Tribunal after considering the materials

available on record has rightly held that the claimant

has contributed 20% to the accident.

Secondly, the injuries suffered by the claimant

are minor in nature and the disability has not affected

his services. Considering the injuries suffered by the

claimant, the Tribunal has granted just and reasonable

compensation.

Thirdly, in respect of loss of salary is concerned,

even though he has produced Ex.P9 - the letter issued

by his employer, he has not examined the author of

the document to prove that he has not received the

salary for the said period. Therefore, the Tribunal has

not granted any compensation under the said head.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and the original

records.

9. The case of the claimant is that on

02.09.2016 at about 7.30 p.m. the claimant was

walking in front of 'D' Mart on NH-7, Hosur -

Bangalore service road, Electronic city, Bangalore. At

that time, a motorcycle bearing registration No.KA-

06/EA-4598 being ridden by its rider at a high speed

and in a rash and negligent manner, dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

To prove his case, claimant examined himself as

PW-1 and produced 18 documents. The respondent

has examined RW-1 an officer of the Insurance

Company and RW-2 the rider of the motorcycle.

It is not in dispute that the claimant was

crossing the service road on NH-7 - Bangalore -

Hosur road. It is also not in dispute that there is no

zebra crossing. As per sketch Ex.P4 the claimant was

almost in the middle of the road. Since there was

heavy traffic on this road, he should have taken care

before crossing the road. The claimant, without

observing the flow of the traffic on the road where

there is no zebra crossing, tried to cross the road.

Therefore, the rider of the motorcycle was unable to

avoid the accident. On the other hand, he was riding

the motorcycle at a high speed and in a rash and

negligent manner. Considering the evidence of the

parties and considering the materials available on

record the Tribunal has rightly held that the claimant

has also contributed 20% to the accident.

Re.quantum:

10. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

on 02.09.2016.

Due to the accident, the claimant has suffered

Type I left leg both bones fracture. He was treated as

inpatient for more than 5 days in the hospital and

thereafter, has received further treatment. He has

suffered lot of pain during treatment and he has to

suffer with the disability and unhappiness throughout

his life. Considering the same, I am inclined to

enhance the compensation awarded by the Tribunal

under the head of 'pain and sufferings' from

Rs.40,000/- to Rs.60,000/- and 'loss of amenities' is

granted at Rs.40,000/-.

Even though the claimant has produced Ex.P9

issued by one S.Parameshwaran from Somu Chemical

and Pharmaceuticals (P) Ltd., to show that he has loss

of pay from 3rd September 2017 to 15th January 2017

but he has not examined the author of the said

document to prove the same. Therefore, the Tribunal

has rightly not considered the said documents. But

considering the injury suffered by the claimant, since

he was inpatient for a period of 5 days, I am of the

opinion that he is entitled to Rs.40,000/- towards 'loss

of income during laid-up period'.

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 60,000 Medical expenses 17,137 17,137 Food, nourishment, 30,000 30,000 conveyance and attendant charges

Loss of income during 0 40,000 laid up period Loss of amenities 0 40,000 Future medical expenses 10,000 10,000 Total 97,137 1,97,137

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.1,97,137/- as against Rs.97,137/- awarded by

the Tribunal.

The Insurance Company is directed to deposit

80% of the compensation amount, i.e., Rs.1,57,710/-

along with interest @ 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.

Sd/-

JUDGE

Cm/-