Karnataka High Court
Sridhar S vs Shriram Gen. Ins. Co.Ltd on 14 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.211/2017 (MV)
BETWEEN:
SRIDHAR S.,
S/O SRINIVAS,
AGED ABOUT 21 YEARS,
R/AT NO.13, KANNAMANGALAPALYA,
KANNAMANGALA POST,
DEVANAHALLI TALUK,
BANGALORE RURAL DIST.-562110. ... APPELLANT
(BY KUM. NITHYA, ADVOCATE FOR
SRI.PRAKASH M.H., ADVOCATE)
AND:
1. SHRIRAM GEN. INS. CO.LTD.,
MONARCH CHAMBERS,
INFANTRY ROAD, BANGALORE-01.
BY ITS BRANCH MANAGER.
2. PUTTARAJU,
S/O DEVENDRAPPA,
NO.19, 6TH CROSS,
NEAR LAW COLLEGE,
SANTHOSHNAGAR, ATTUR POST,
YELAHANKA NEW TOWN,
BANGALORE-64.
... RESPONDENTS
(BY SRI. H.N. KESHAVAPRASHANTH, ADVOCATE FOR R1,
APPEARING THROUGH V/C,
R2-NOTICE DISPENSED WITH V/O DT:09.03.2018)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:28.09.2016 PASSED IN MVC NO.5291/2013 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE
AND XX A.C.M.M. AND MEMBER M.A.C.T, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING EHHANCEMENT OF
COMPENSATION AND ETC.,
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the
appellant/claimant challenging the judgment and
award dated 28.09.2016 in MVC.No.5291/2013
passed by XXII Addl. Small Causes Judge and XX
Addl. Chief Metropolitan Magistrate and MACT,
Bengaluru (SCCH-24).
2. Brief facts of the case are as under:
On 04.09.2013 at about 4.45 p.m., the claimant
was proceeding in his Moped bearing Reg.No.KA-50-L-
653 slowly and cautiously on the left side of the road
from Bagalur towards Bagalur Cross, when he reached
infront of Panchami Hotel at Dwaraka Nagar, at that
time, a Tipper Tempo bearing Reg.No.KA-50-5907
which was going on the same way and direction driven
by its driver in a rash and negligent manner with high
speed and dashed to the claimant's vehicle. Due to
the impact of the accident, the claimant fell down and
sustained grievous injuries all over the body.
Immediately after the accident, the claimant was
shifted to Dheeksha Hospital at Yelahanka and
thereafter shifted to Shirdi Sai Hospital for further
treatment, wherein he was admitted as an inpatient
from 04.09.2013 to till the date of petition.
3. The claim petition was filed by the
appellant/claimant seeking compensation. The
Tribunal has partly allowed the claim petition and
awarded compensation of Rs.2,85,000/- with interest
at 8% p.a., from the date of petition till the date of
deposit. Being aggrieved by the same, the present
appeal is filed before this Court.
4. Heard the learned counsel for both the
parties and perused the materials on record.
5. Learned counsel for the appellant/claimant
submitted that the contributory negligence adopted by
the Tribunal holding that the appellant has contributed
25% of negligence is not correct, for the reason that,
the appellant was riding the motor cycle on the left
side of the road and the tempo had come and hit the
motor cycle from the back side, for which, the
appellant had not at all contributed any negligence.
Therefore, the findings of the Tribunal that, just
because, the appellant was not holding driving licence,
it cannot be a main cause for the accident. Therefore,
submitted that the findings of the Tribunal is not
correct. Therefore, submitted that non-holding of
driving licence for driving the vehicle will amounts to
an offence, but it cannot be the main cause for the
accident. Therefore, submitted that the Tribunal has
to make distinguish between these two aspects.
Hence, the Tribunal has committed an error.
Therefore, prays for interference with the judgment
and award passed by the Tribunal.
6. Further submitted that the quantum of
compensation awarded on each head is meager one
and the same needs to be enhanced. Further
submitted that, even though, the appellant had
sustained permanent physical disability and there is
medical evidence to show that the appellant had
suffered 13.8% of physical disability towards the
whole body, but the Tribunal has not awarded any
compensation under the head loss of future earning
capacity due to disability and the same needs to be
awarded. Therefore, prays for enhancement of
compensation. Learned counsel for the
appellant/claimant has relied on the judgment of the
Hon'ble Apex Court in the case of Sudhir Kumar
Rana Vs. Surinder Singh and Others reported in
(2008) 12 SCC 436.
7. On the other hand, learned counsel for
respondent No.1-Insurance Company vehemently
submitted that the appellant did not possess the
driving licence while he was driving the motor cycle.
Further submitted that the appellant was aged about
17 years as on the date of the accident. Therefore,
quite naturally, no driving licence was issued to him
and without the driving licence, he was riding the
motor cycle. Under these circumstances, the accident
has caused. Therefore, he submitted that the Tribunal
was correct in holding that the appellant/claimant has
also contributed 25% of negligence in causing the
accident. Therefore, prays to dismiss the appeal.
8. Further submitted that the amount of
compensation awarded on each head by the Tribunal
is correct. Further submitted that the appellant during
the course of cross-examination has admitted that he
was working in the barber shop and getting salary of
Rs.400/- per day. Therefore, submitted that he has
not lost his job and there is no loss of future earning
due to disability and this is rightly considered by the
Tribunal holding that the appellant is not entitled for
compensation under the head loss of future earning
capacity due to disability. Therefore, the Tribunal has
rightly rejected the compensation under this head,
which needs no interference. Therefore, prays to
dismiss the appeal.
9. Insofar as considering the rival submission
of both the parties regarding attributing 25% of
contributory negligence on the part of the
appellant/claimant, the Tribunal had held that the
appellant/claimant has attributed 25% of contributory
negligence only on the ground that the appellant was
aged 17 years 9 months while riding the motor cycle
and was not possessing driving licence. Therefore, for
non-holding of driving licence, the Tribunal has held
that the appellant/claimant has attributed 25% of
contributory negligence, but there is no other findings
of the Tribunal as to in what way the
appellant/claimant had attributed his negligence
towards the accident. It is an admitted fact that the
appellant was riding the motor cycle ahead of the
tempo and the tempo was coming behind the motor
cycle and hit the motor cycle from back side. Ex.P.3 is
the spot sketch and Ex.P.4 is the spot mahazar.
Ex.P.3-spot sketch clearly shows that the appellant
was riding the motor cycle at his left side that is on
the correct side of the road and the tempo had hit the
motor cycle from back side. Therefore, there is no
other material to show that the appellant had also
contributed negligence towards the accident while
riding the motor cycle except non-holding of driving
licence. Non-holding of driving licence is an offence,
which is said to be treated differently and causing
accident is a different aspect. While considering the
factum of accident, whether negligence is on the part
of the rider of the motor cycle or driver of the tempo
that has to be ascertained, just because, non-holding
of driving licence and causing accident, that cannot be
made as a sole ground to hold that he has contributed
negligence towards the accident.
10. Kum.Nithya, learned counsel for the
appellant/claimant has rightly placed reliance on the
decision of the Hon'ble Apex Court in the case of
Sudhir Kumar Rana Vs. Surinder Singh and
Others reported in (2008) 12 SCC 436, wherein in
that case also the fact is that the appellant was 17
years old while driving a two wheeler and met with an
accident with another mini truck. The Tribunal held
that, because of non-holding of driving licence, there
is contributory negligence on the part of the appellant.
But the Hon'ble Apex Court by appreciating the facts
and circumstances of the case has held that, just
because, the driver of the two wheeler was not
possessing driving licence that cannot be a ground for
causing the accident. Causing of accident is a different
aspect. Therefore, the Hon'ble Apex Court in Sudhir
observed as follows:
"9. If a person drives a vehicle without a
licence, he commits an offence. The same, by
itself, in our opinion, may not lead to a finding
of negligence as regards the accident. It has
been held by the courts below that it was the
driver of the mini truck who was driving rashly
and negligently. It is one thing to say that the
appellant was not possessing any licence but
no finding of fact has been arrived at that he
was driving the two-wheeler rashly and
negligently. If he was not driving rashly and
negligently which contributed to the accident,
we fail to see as to how, only because he was
not having a licence, he would be held to be
guilty of contributory negligence.
10. The matter might have been
different if by reason of his rash and negligent
driving, the accident had taken place."
11. Further learned counsel for the appellant
has rightly placed reliance on the decision of the
Hon'ble Apex Court in the case of Dinesh Kumar J.
Alias Dinesh J., Vs., National Insurance Company
Limited and Others reported in (2018) 1 SCC 750,
wherein the Hon'ble Apex Court has also placed
reliance on Sudhir Kumar Rana's case and at
paragraph No.7 it is held that non-holding of driving
licence amounts to negligence is merely surmises
without ascertaining whether while riding the motor
cycle made contribution to the accident is to be taken
into consideration otherwise not. Therefore, the
principles of law laid down in both the cases are
squarely applicable to the case on hand. Therefore,
the Tribunal has committed error in holding that the
appellant has attributed 25% of contributory
negligence as he was not holding driving licence,
which is not correct. The Tribunal has not discussed
anything about the rash and negligent as to in what
way the appellant has contributed negligence, but only
observed that the appellant was not holding driving
licence. As stated above, just because, non-holding of
driving licence while riding the two wheeler cannot be
made as a ground. In the present case, the offending
vehicle tempo hit the motor cycle from back side when
the appellant was riding the motor cycle on the left
side of the road. Therefore, in the present case, upon
appreciating the evidence once again on record, there
is no rash and negligence on the part of the appellant.
Therefore, the findings of the Tribunal in this regard is
not correct and the same is liable to be set aside.
12. Therefore, FIR, complaint and charge sheet
discloses that the accusation of offence is made
against the driver of the tempo. Therefore, the driver
of the tempo has attributed 100% of contributory
negligence in causing the accident.
13. Considering the submission of learned
counsel on both the parties regarding the quantum of
compensation, the Tribunal has awarded
compensation under various heads as follows:
1. Pain and suffering Rs. 20,000-00
2. Medical expenses Rs. 2,50,000-00
3. Food and Nourishment expenses, Rs.
20,000-00
conveyance and attendant charge
4. Loss of income during treatment Rs.
40,000-00
period
5. Loss of amenities of life Rs. 50,000-00
Total: 3,80,000-00
14. Ex.P.7 is the wound certificate issued by
the Shirdi Sai Hospital, which reveals that the
appellant/claimant had suffered the following injuries:
1. Fracture of left Tibia,
2. Haemoperetoreum with injury to bladder
3. Fracture of left pubic rami with pubic diastisis.
15. The doctor was examined as P.W.2. He also
stated that the appellant had suffered fracture of left
tibia, haemoperetoreum with injury to bladder and
fracture of left public rami with public diastisis, which
are grievous in nature, but the Tribunal has awarded
only Rs.20,000/- only under the head pain and
suffering. Therefore, considering the nature of injuries
sustained by the appellant as above stated,
Rs.45,000/- is awarded under the head pain and
sufferings. Further the Tribunal has not awarded any
compensation under the head loss of future earning
capacity due to disability.
16. Learned counsel for respondent No.1 -
Insurance Company submitted that during the course
of cross-examination, the appellant has admitted that
he is working in barber shop and earning salary of
Rs.400/- per day. Therefore, there is no loss of
income. Hence, the Tribunal has rightly rejected the
claim on this ground. Therefore, submitted that there
is no need to make any interference in this regard.
Admittedly, the appellant is a barber by profession.
The appellant might have admitted that he was
earning Rs.400/- per day by working in a barber shop.
This is not a ground to reject the claim of the
appellant claiming compensation under the head loss
of future earning capacity due to disability.
Admittedly, as per the medical records as discussed
above, the appellant suffered fracture of left tibia and
fracture of left public rami with public diastisis, which
certainly affects his work as the barber has to stand
for long time in case of large number of customers. In
those circumstances, the appellant might not be able
to stand for long time to work as a barber to attend
large number of customers in a day. Therefore, to this
extent, the appellant has lost the working capacity as
a barber to some extent, which certainly affects the
future earning capacity of the appellant. Therefore,
the appellant is to be compensated under the head
loss of future earning capacity due to disability. The
doctor-P.W.2 has assessed that the appellant had
suffered 27.6% of disability on the left lower limb and
13.8% to the whole body. The appellant suffered
fracture of left tibia and fracture of left public rami
with public diastisis. Therefore, percentage of
disability assessed by the doctor-P.W.2 at 13.8%
towards the whole body is not exorbitant, but the
nature of injuries has to be considered. Accordingly,
considering the nature of injuries sustained by the
appellant and also avocation of the appellant that he
is a barber by profession, the functional disability is to
be taken at 13.8% keeping in view the principles of
law laid down by the Hon'ble Apex Court in the case of
Raj Kumar Vs. Ajay Kumar and Another reported
in (2011) 1 SCC 343. Therefore, the appellant is
entitled for compensation under the head loss of
future earning capacity due to disability.
17. The accident was caused in the year 2013.
Therefore, in the absence of any record, notional
income chart as recognized by the Karnataka State
Legal Service Authority ought to be taken.
Accordingly, notional income at Rs.8,000/- per month
is taken. The appropriate multiplier is "18" according
to the age of the appellant as per the principles of law
laid down in the case of Sarla Verma and Others -
Vs- Delhi Transport Corporation and Another
reported in AIR 2009 SCC 3104. Therefore, loss of
future earning capacity due to disability is calculated
and quantified as follows:
Rs.8,000/- x 13.8% x 18 x 12 = Rs.2,38,464/-
18. The Tribunal has awarded compensation of
Rs.20,000/- towards food and nourishment expenses,
conveyance and attendant charges, which is found to
be appropriate. The Tribunal has awarded Rs.50,000/-
under the head loss of amenities, which is also found
to be correct. Further the Tribunal has awarded
Rs.40,000/- under the head loss of income during laid
up period, which is also found to be correct. Further
the Tribunal has awarded Rs.2,50,000/- towards
Medical Expenses and it is found to be correct and
proper, which needs no interference. Therefore, there
is no need to make any interference by this Court
under these heads and they are kept in tact.
19. The appellant/claimant is entitled to the
compensation as follows:
1. Pain and suffering Rs. 45,000-00
2. Medical expenses Rs. 2,50,000-00 (kept in tact)
3. Food and Nourishment expenses, Rs. 20,000-00 (kept in tact)
conveyance and attendant charge
Loss of income during treatment Rs. (kept in tact)
40,000-00
4. period
5. Loss of amenities of life Rs. 50,000-00 (kept in tact)
6. Loss of future earning capacity Rs.
2,38,464.00
due to disability
Total: 6,43,464.00
20. The Tribunal has awarded the
compensation of Rs.3,80,000/-, but the
appellant/claimant is entitled to total compensation of
Rs.6,43,464/-. Hence, the appellant is entitled to
enhanced compensation of Rs.2,63,464/-
(Rs.6,43,464/- - Rs.3,80,000/-). Therefore, the
appellant/claimant is entitled to enhanced
compensation of Rs.2,63,464/- along with interest at
the rate of 6% per annum from the date of petition till
the date of realization.
21. Accordingly, I pass the following :
ORDER
Appeal is allowed-in-part.
The impugned judgment and award dated
28.09.2016 in MVC.No.5291/2013 passed by XXII
Addl. Small Causes Judge and XX Addl. Chief
Metropolitan Magistrate and MACT, Bengaluru (SCCH-
24), is modified to an extent that the
appellant/claimant is entitled for an additional
compensation of Rs.2,63,464/- along with the rate of
interest at 6% per annum from the date of petition till
the date of realization, in addition to what has been
awarded by the Tribunal.
Registry is directed to return the Trial Court
Records to the Tribunal along with the copy of this
order forthwith.
Draw award accordingly.
No order as to costs.
Sd/-
JUDGE
PB
