Karnataka High Court
Md.Mubeen S/O Md.Babumiyan ... vs Prabhakar S/O Pundalika And Anr on 8 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201088/2016 (MV)
BETWEEN:
Md. Mubeen
S/o Md. Babumiyan Chenda,
Aged about 23 years,
Occ: Welder Mechanic, Now Nil,
R/o Village Kanji, Tq: Bhalki, Dist: Bidar.
... Appellant
(By Sri. Santosh Biradar, Advocate)
AND:
1. Prabhakar S/o Pundalik,
Age: Major, Occ: Business,
R/o H.No.9/9/137,
Ambedkar Colony, Bidar-585 401.
2. The Branch Manager,
United India Insurance Co. Ltd.,
1st Floor, Basaveshwar Tower,
KEB Road, Bidar-585 401.
... Respondents
(Sri. S.S. Aspalli, Advocate for R2;
V/O dated 04.03.2022, notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the appeal,
modify the impugned judgment and award dated 12.04.2016
2
passed by the Court of Principal Senior Civil Judge and Addl.
MACT, Bidar, in MVC No.413/2013 and enhance the
compensation as prayed for by fixing the entire liability on the
2nd Respondent-Insurance Company.
This appeal coming on for admission this day, the Court
delivered the following:-
JUDGMENT
This appeal is filed by the claimant under Section 173(1)
of the Motor Vehicles Act, challenging the judgment and award
dated 12.04.2016 passed in MVC No.413/2013 by the Principal
Senior Civil Judge and Addl. MACT, Bidar (hereinafter referred
to as 'the Tribunal' for short), seeking enhancement of
compensation and also challenging 50% liability fixed on him
by the Tribunal.
2. For the sake of convenience, the parties herein are
referred with the original ranks occupied by them before the
Tribunal.
3. The brief factual matrix leading to the case is that,
on 17.11.2012 at about 5.45 p.m., the claimant was
proceeding on his motorcycle bearing Reg. No.KA-32/L-9230
from Chowli towards Naubad and near Masjid, an
autorickshaw bearing Reg. No.KA-38/J-3004 came from
opposite direction in a high speed and rash and negligent
manner and dashed to the motorcycle of the claimant.
Because of this impact, the claimant has suffered grievous
injuries on his left leg, chest, hands and other parts of the
body. Immediately he was shifted to Government Hospital,
Bidar and later on he has taken treatment in Guru Nanak
Hospital, Bidar for a period of one week as an inpatient. He
has undergone surgery and implants were inserted. That, he
has spent more than Rs.1,00,000/- towards medical expenses
and requires Rs.25,000/- towards future medical expenses.
That, due to accidental injuries, he was unable to do his day-
to-day work. He was aged about 20 years and was earning
Rs.10,000/- per month and due to accidental injuries, he has
lost his avocation of mechanic. The accident is because of the
sole negligence on the part of the driver of the autorickshaw.
Hence, he filed a claim petition under Section 166 of the M.V.
Act, claiming compensation of Rs.15,00,000/- with interest at
the rate of 18% from the respondents.
4. Respondent No.1-owner of the autorickshaw did
not contest the claim petition and respondent No.2-insurer
fled the objections denying the allegations and assertions
made thereunder. It is denied that the accident is because of
the actionable negligence on the part of the driver of the
autorickshaw and it is contended that the accident is because
of the sole negligence on the part of the claimant himself. It
is also contended that the charge sheet is filed against the
claimant and the driver of the autorickshaw. They have also
denied the age, occupation and income of the claimant and
further asserted that the driver of the autorickshaw was not
possessing valid and effective driving licence and there is
breach of policy conditions. Hence, the insurance company
has disputed the claim.
5. After appreciating the oral and documentary
evidence, the Tribunal has held that the claimant is entitled for
total compensation of Rs.3,41,420/- under various heads.
However, it is held that the claimant himself has contributed
to the extent of 50% towards the accident and as such by
deducting 50%, it has awarded compensation of Rs.1,70,710/-
with interest at the rate of 6% p.a. (excluding interest on 50%
of future medical expenses) from the date of petition till its
realisation.
6. Being aggrieved by this judgment and award, the
claimant has filed this appeal.
7. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel for
respondent No.2-insurer. Perused the records.
8. The learned counsel for the appellant/claimant
would contend that the Tribunal has erred in fixing 50% of
contributory negligence on the claimant, as it is evident that
the charge sheet is laid down against the driver of the
autorickshaw. He would also contend that under the head of
loss of amenities, no proper compensation was awarded and
disability was taken on lower side. He would also contend that
the income was taken on lower side and as such prayed for
enhancing the compensation by fastening the entire liability on
respondent No.2-insurer.
9. Per contra, learned counsel for respondent No.2-
insurer would support the judgment and award passed by the
Tribunal.
10. Having heard the arguments advanced by the
learned counsels for the parties and perusing the records, it is
evident that the claimant was rider of the motorcycle bearing
Reg. No.KA-32/L-9230. It is also evident that it collided with
autorickshaw bearing Reg. No.KA-38/J-3004. The records also
disclose that the FIR was lodged against the claimant and
driver of the autorickshaw, but however, from Ex.P7-charge
sheet it is evident that the charge sheet is submitted only
against the driver of the autorickshaw. The claimant
contended that there is no actionable negligence on his part.
However, on perusing the records, it is evident that there is
head on collision between the autorickshaw and the
motorcycle. The claimant has not produced any documents to
show that he was possessing valid and effective driving licence
to show that he was knowing art of riding. The Tribunal has
fixed the contributory negligence to the extent of 50% on the
claimant himself, but what is the basis for holding 50%
contributory negligence is not at all forthcoming. However, it
is a fact that the claimant though asserts that he was
possessing driving licence, the same was not produced and as
such adverse inference is required to be drawn as against him
in this regard. However, the records disclose that the driver
of the autorickshaw was exclusively prosecuted before the
Criminal Court for the offences punishable under Sections 279,
337 and 338 of IPC. But, at the same time it is also evident
that there is head on collision between two vehicles and the
claimant has not produced any documents to show that he
was possessing valid and effective driving licence to
substantiate the contention that he was knowing art of riding.
Looking to these facts and circumstances, the contributory
negligence is required to be fastened on the claimant. The
Tribunal has held the contributory negligence to the extent of
50%. But, considering the available records and charge sheet
being submitted against the driver of the autorickshaw, in my
considered opinion it is just and proper to fasten the
contributory negligence to the extent of 25% on the claimant.
11. The Tribunal has awarded Rs.35,000/- under the
head of pain and suffering and Rs.33,100/- under the head of
medical expenses and they does not call for any interference.
12. Apart from that, under the head of incidental
charges, Rs.6,000/- was awarded, which is also does not call
for any interference.
13. Under the head of loss of amenities only
Rs.10,000/- was awarded and the evidence disclose that the
claimant has suffered fracture of left shaft of femur and left
radius. Hence, considering these injuries, the compensation
awarded under the head of loss of amenities is on the lower
side and the claimant is entitled for Rs.30,000/- under the
said head.
14. The Tribunal has also awarded Rs.25,000/-
towards future medical expenses (without interest), which also
does not call for any interference.
15. The Tribunal has taken the income of the claimant
at Rs.6,000/- per month. The accident has occurred in the
year 2012 and this Court is consistently taking the notional
income at Rs.6,500/- per month in respect of accidents of the
year 2012. Hence, it is just and proper to consider the
notional income at Rs.6,500/- per month. PW.2 - the doctor
has deposed that the claimant has suffered 54% disability to
the particular limb and as such, the Tribunal has considered
the disability at 18% to the whole body, which does not call
for any interference. Since the claimant is aged about 30
years, multiplier of 17 is applicable. Hence, the total
compensation towards loss of future income would work out to
Rs.2,38,680/- (Rs.6,500 x 12 x 17 x 18%).
16. Further, the Tribunal has awarded Rs.12,000/-
under the head of loss of income during laid up period for two
months. Considering the nature of fractures and the period of
treatment, the claimant is entitled for three months laid up
period and as such, he is entitled for Rs.19,500/- towards loss
of income during laid up period.
17. As such, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads Amount
No.
1. Pain and suffering Rs.35,000/-
2. Loss of amenities Rs.30,000/-
3. Loss of future income Rs.2,38,680/-
4. Medical expenses Rs.33,100/-
5. Loss of income during Rs.19,500/-
laid up period
6. Incidental charges Rs.6,000/-
7. Future medical Rs.25,000/-
expenses
Total Rs.3,87,280/-
The claimant has also contributed 25% towards the
accident and as such he is required to forego 25% of the total
compensation which is because of his actionable negligence
and by foregoing 25% of the compensation i.e., Rs.96,820/-,
he is entitled for total compensation of Rs.2,90,460/- along
with interest at the rate of 6% p.a. as against Rs.1,70,710/-
awarded by the Tribunal.
18. Under such circumstances, the appeal needs to be
allowed in part. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The appellant/claimant is held entitled for total
compensation of Rs.2,90,460/- as against
Rs.1,70,710/- awarded by the Tribunal.
iii. The enhanced compensation shall carry interest at
the rate of 6% p.a. from the date of petition till its
realisation (excluding interest on future medical
expenses as ordered by the Tribunal).
iv. Respondent No.2-insurer is directed to deposit the
enhanced compensation with interest accrued
thereon within six weeks from the date of this
judgment.
v. The disbursement and deposit shall be as per the
award of the Tribunal.
Sd/-
JUDGE
LG
