Prahladappa vs National Insurance Co.Ltd
2022 Latest Caselaw 9230 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JUNE, 2022

                         BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            M.F.A.NO.2266 OF 2016 (MV-I)
                        C/W
            M.F.A.NO.1231 OF 2016 (MV-I)

IN M.F.A.NO.2266/2016:

BETWEEN:

PRAHLADAPPA,
S/O DANAPPA,
AGED ABOUT 41 YEARS,
R/O KALKUNTE VILLAGE,
CHITRADURGA TALUK.                         ...APPELLANT

(BY SRI SPOORTHY HEGDE, ADV.)

AND :

  1. NATIONAL INSURANCE CO.LTD.
     REP. BY ITS BRANCH MANAGER,
     BRANCH OFFICE,
     JAGALUR MAHALINGAPPA BUIDING,
     P.B.ROAD, CHITRADURGA-577501.

  2. LAKSHMIDEVAMMA,
     W/O AJJAPPA,
     MAJOR,
     RC OWNER OF BOLERO,
     VLX JEEP, BEARING NO.KA-16-M-6216,
     R/O RAMGIRI VILLAGE, HOLALKERE TALUK,
     CHITRADURGA DISTRICT-577526.       ...RESPONDENTS

(BY SRI A.N.KRISHNA SWAMY, ADV. FOR R1,
V/O/DT: 18.08.2017, NOTICE TO R2 IS DISPENSED)
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     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.11.2015 PASSED IN MVC
NO.28/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, & CJM, MACT-III, CHITRADURGA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

IN M.F.A.NO.1231/2016:

BETWEEN:

THE BRANCH MANAGER,
NATIONAL INSURANCE CO LTD.,
BRANCH OFFICE, JAGALUR
MAHALINGAPPA BUILDING,
P B ROAD, CHITRADURGA,
NOW REPRESENTED BY
ITS REGIONAL MANAGER,
NATIONAL INSURANCE CO LTD.,
REGIONAL OFFICE SUBHARAM COMPLEX,
144, M G ROAD,
BENGALURU - 560 001.                       ...APPELLANT

(BY SRI A.N.KRISHNASWAMY, ADV.)

AND:

  1. PRAHLADAPPA
     S/O DANAPPA,
     AGED ABOUT 41 YEARS,
     R/O KALKUNTE VILLAGE,
     CHITRADURGA TALUK - 577557.

  2. SMT. LAKSHMIDEVAMMA,
     W/O AJJAPPA,
     AGE: MAJOR,
     OWNER OF BOLERO JEEP,
     R/O RAMGIRI VILLAGE,
     HOLALKERE TALUK,
     CHITRADURGA DISTRICT - 577526.    ...RESPONDENTS
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(BY SRI SPOORTHY HEGDE NAGARAJ, ADV FOR R1,
 V/O/DT: 22.02.2018, NOTICE TO R2 IS D/W)
                           ----
      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.11.2015 PASSED IN MVC
NO.28/15 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, C.J.M. & MACT-3, CHITRADURGA, AWARDING
COMPENSATION OF RS.4,46,600/- WITH INTEREST AT 7.5%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

     THESE APPEALS COMING ON FOR HEARING THIS DAY,
AND THE COURT DELIVERED THE FOLLOWING:-

                        JUDGMENT

These appeals are filed by the claimant seeking

enhancement of compensation challenging the judgment

and award dated 16.11.2015 in MVC No.28/2015 passed

by the Principal Senior Civil Judge, CJM and MACT-III,

Chitradurga.

2. For the sake of convenience, parties are

referred as per their ranks before the Tribunal.

3. Heard Shri. Spoorthy Hegde N. learned to

advocate for the appellant and Shri. A.N. Krishna Swamy

learned to advocate for respondents.

4. The accident has taken place on 21.07.2014.

involving the motorcycle and Bolero Jeep. The rider of the

bike is the claimant. The Tribunal has assessed the

compensation of Rs.4,94,000/- and awarded interest @

7.5% per annum on the compensation amount. Further

held that the claimant himself has contributed to the

accident to the extent of 10% and 90% liability is

fastened on the owner and the insurer of the Bolero Jeep.

5. The Tribunal has held that the claimant

contributed to the accident to the extent of 10% and to

that extent reduced the award.

6. The claimant has prepared MFA No.2260/2016

seeking enhancement of the compensation and also prayed

to fasten full liability on the owner and insurer of the

Bolero Jeep. The insurance has preferred MFA

No.1231/2016 questioning the quantum as well as liability.

7. Shri. A.N.Krishnaswamy the learned to

advocate for the appellant/insurer would contend that

admittedly claimant who was riding the bike did not

possess a valid and effective driving license and he

occasionally rode the bike though he had no license and as

per his admission in the cross-examination, admitted that

the accident took place in the middle of the road as such

apportionment of the negligence in the ratio of 10:90

against the claimant and driver of the Bolero Jeep is

erroneous.

8. The doctor has assessed 59% disability without

there being any basis as such the award of the

compensation under the head of loss of future income by

taking 25% disability is unsustainable. Rs.42,000/- is

awarded under the head of loss of income for the six-

months laid-up period is also unjustified and accordingly

prays to allow the appeal.

9. Learned counsel for the claimant would submit

that charge sheet filed against only the driver of the Bolero

Jeep and no charge sheet is filed against the claimant as

such the claimant is not responsible for the accident.

10. The doctor has rightly assessed 59% disability.

Considering the nature of the injuries, the lower limb

disability at 52.89% and upper limb disability at 59.11%

are justified is the submission. On considering the

injuries, the loss of future income awarded by the Tribunal

by taking 25% disability is on the lower side and on this

ground seeks enhancement.

11. This Court has perused the records and

contentions raised by learned advocates for both the

parties.

12. Evidence on record would indicate that the

claimant has admitted that the accident took place right in

the middle of the road. The police after the investigation

have filed a charge sheet against the driver of the Bolero

Jeep. The spot panchanama produced reveals that the

width of the road is 22 feet. It is admitted in the cross-

examination by the claimant that he was not having a

driving license and he used to drive the bike occasionally.

On analysis of this fact and also by looking into the

damage that occurred to the vehicles involved in the

accident, which is found in the MVA report, this Court is of

the opinion that the rider of the bike/claimant is also at

fault and has contributed to the extent of 20% to the

accident.

13. The Tribunal has awarded the damages under

the following heads.

     1      Pain and sufferings            Rs.60,000/-
     2      Treatment expenses             Rs.29,000/-
     3      Permanent        disability  Rs.2,73,000/-
            (25%                     of
            Rs.7,000X12X13)
     4      Loss of income during          Rs.42,000/-
            treatment and laid-up
            period
            (Rs.7,000X6months)
     5      Attendant             and      Rs.40,000/-
            nourishment
     6      Conveyance            and      Rs.20,000/-
            incidental charges
     7      Future          treatment      Rs.30,000/-
            expenses         including
            removal of implants
            Total                       Rs.4,94,000/-

14. Considering the nature of injuries and disability

and also the duration of treatment the compensation under

the head of pain and suffering is enhanced by another

Rs.20,000/-.

15. The Tribunal has awarded Rs.29,000/- towards

treatment. However, the medical records produced before

the Tribunal would disclose that the claimant has incurred

Rs.1,49,107/- towards medical expenses. Accordingly,

Rs.1,49,107/- is awarded under the head of medical

expenses.

16. From the materials placed on record, this Court

is of the opinion that the compensation awarded under the

head of loss of future income is required to be modified.

17. While calculating future loss of income the

Tribunal has taken Rs.7,000/- as the base income and has

taken 25% disability. In the absence of proof relating to

the income, the income is to be assessed as per the chart

prepared by the Karnataka State Legal Services Authority.

As per the said chart, the income would be Rs.8,500/- per

annum. The appropriate multiplier would be 13. Thus the

loss would be Rs.8,500X12(Months)X13(multiplier)X30%

(percentage of disability)=3,97,800/-.

18. The compensation awarded under the loss of

amenities at Rs.40,000/- is on the higher side and the

same is to be reduced to Rs.30,000/-.

19. The income for the laid-up period would be

Rs.8,500X6=51,000/-. The compensation under the

remaining heads awarded by the Tribunal is just and

proper. Thus the total compensation would be

Rs.8,26,907/-. This Court has opined that the claimant

has contributed 25% to the accident and the compensation

payable to the claimant has to be reduced by 25%. Thus

compensation payable would be Rs.8,26,907.00 -

Rs.2,06,907.75 = Rs.6,19,999.25/-. Rounded of

Rs.6,20,000/-. Enhanced compensation of Rs.6,20,000/-

shall carry interest at the rate of 6% per annum from the

date of petition till the date of payment.

Hence, the following:-

ORDER

i) MFA No.2266/2016 and MFA No.1231/2016 are

allowed in part. The impugned judgment and award dated

16.11.2015 passed by Principal Senior Civil Judge, CJM &

MACT-III, Chitradurga is modified

ii) The appellant/claimant is entitled to

compensation of Rs.6,20,000/- along with interest @ 6%

p.a. from the date of the petition till realisation.

(iii) The respondents/insurance company shall

deposit the amount after deducting the amount, if any,

already paid.

(iv) In all other aspects, the award of the Tribunal

is undisturbed.

Sd/-

JUDGE

HD