Karnataka High Court

Sri Narasimhamurthy vs Sri Manjunath on 2 March, 2022

Bench: Pradeep Singh Yerur

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF MARCH, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

MISCELLANEOUS FIRST APPEAL NO.753 OF 2020(MV)

BETWEEN:
SRI NARASIMHAMURTHY
S/O.SANNAPUTTANNA
AGED ABOUT 36 YEARS
R/AT INAGALURU VILLAGE
AGALI MANDAL
MADAKASIRA TALUK
ANANTHAPURAM DISTRICT
ANDHRA PRADESH STATE               ... APPELLANT

(BY SRI SATHISHA T. , ADVOCATE)

AND:
1.     SRI MANJUNATH
       S/O.RAJANNA
       AGED ABOUT 26 YEARS
       R/AT NO.71/10
       NEAR YALLAMMA TEMPLE
       KALIKONDARAHALLI
       BENGALURU - 570 035

2.     ROYAL SUNDARAM GENERAL
       INSURANCE COMPANY LIMITED
       NO.30, 3RD FLOOR
       JNR CITY CENTRE
       RAJA RAM MOHAN ROY ROAD
       SAMPANGIRAMA NAGAR
       BENGALURU - 560 027         ... RESPONDENTS

(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR R-2;
   NOTICE TO R-1 IS D/W V.O.D 28.09.2021)
                         ---
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT,
1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 06.08.2019 IN M.V.C. NO.709/2018 PASSED BY THE
COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
MACT, MADHUGIRI AND TO ENHANCE THE COMPENSATION
AMOUNT AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award passed by the Principal Senior Civil

Judge and MACT, Madhugiri (for short 'the tribunal') in

MVC.No.709/2018 dated 06.08.2019. This appeal is

founded on the premise of inadequacy of compensation.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 03.03.2018 at about 12.00 p.m., claimant was

riding TVS motor cycle bearing registration No.KA-64-Q-

6278 from Medigeshi to Avaragallu Village, near Avaragallu

village nursery on Pavagada-Madhugiri road, a car bearing

registration No.KA-51-C-2877 driven by its driver came in a

rash and negligent manner from Madhugiri side and dashed

against the said TVS motor cycle. Due to the impact of said

accident, the claimant fell down and sustained fractures and

grievous injuries. Immediately, he was shifted to

Government Hospital, Madhugiri, where he took first aid

treatment and thereafter, he was shifted to Government

Hospital, Tumakuru and later on, he was shifted to Adithya

Orthopedic and Trauma Centre, Tumakuru for further

treatment, wherein he took treatment as inpatient for a

period of one month and the fractures on left tibia and

fibula of left leg were treated by fixing implant.

4.1. It is stated that the claimant was hale and

healthy prior to the accident and he was an agriculturist

and doing onion business and was earning Rs.15,000/- to

30,000/- per month. He was the only earning member of

the family. After the accident, he is unable to do work and

lost his income and also he became permanently disabled.

Hence, he has filed a claim petition seeking compensation.

4.2. On service of notice, respondents appeared

before the Court and filed their statement of objections.

Respondents have denied the age, occupation and income

of claimant so also the medical expenses as claimed by the

claimant. Respondent No.1 pleaded that the Insurance

policy was in force as on date of occurrence of accident and

that if any liability if fastened on him, the same will have to

be paid by respondent No.-2 insurer by indemnifying

respondent No.1.

4.3. Respondent No.2-Insurer has pleaded that the

claimant was riding the two wheeler without any driving

licence and was under intoxication. It is further pleaded

that the accident occurred due to the contributory

negligence on part of claimant. The offending vehicle was

not involved in the accident. It is further pleaded that the

claim petition is bad for mis/non-joinder of necessary

parties. The driver of offending vehicle was not holding any

valid driving licence and there is a violation of FC and

permit conditions. On these grounds, sought for dismissal

of claim petition.

4.4. Based on the pleadings, the tribunal framed

relevant issues for consideration.

4.5. In order to substantiate the issues and to

establish his case, the claimant examined himself as PW.1

and Orthopedic Surgeon as PW.2 and marked the

documents as Exs.P1 to P14 whereas the respondents

neither lead any evidence nor produced any document on

their behalf.

4.6. On the basis of pleadings and material evidence

placed before the Court, both oral and documentary and

after hearing the learned counsel for the parties, the

tribunal awarded compensation of Rs.5,58,410/- with

interest at 6% p.a. and further held 10% contributory

negligence against the claimant.

5. Being dissatisfied with the meager compensation

awarded by the tribunal, the claimant is before this Court

seeking enhancement of compensation.

6. It is the contention of learned counsel for appellant

that judgment and award passed by the tribunal is contrary

to facts and evidence on record. The compensation amount

awarded by the tribunal is required to be enhanced as it is

meager. He further contends that the tribunal has erred in

awarding inadequate compensation commensurate to the

injuries suffered by the appellant-claimant. It is also

contended that the tribunal has erred in not taking proper

income of the appellant for the accident of the year 2018

and has erred in taking notional income at Rs.10,000/-

whereas Rs.12,500/- is the notional income for the accident

having occurred in the year 2018.

6.1. Learned counsel for appellant also contends that

the tribunal has erred in imputing 10% of the liability for

contributory negligence which is based solely on the ground

of appellant-claimant was not holding a valid Driving

Licence. He contends that this may not be appropriate,

hence, the liability of 10% requires to be waived of and

entire liability is to be fastened on the Insurer for the

reason that merely because the claimant does not have

valid and effective driving licence cannot be the reason to

attribute contributory negligence on the claimant. It is

necessary that the respondents should prove the fact that

the claimant contributed to the occurrence of accident, only

then contributory negligence could be attributed to the

claimant. He further contends that the multiplier of '15'

adopted by the tribunal is erroneous and the proper

multiplier to be applied is '16' instead of '15'. Hence, he

seeks to allow the appeal and consequently, enhance the

compensation.

7. Per contra, learned counsel for Insurance Company

contends that the tribunal has awarded just and reasonable

compensation based on the material evidence both oral and

documentary and considering the documentary evidence

placed before the Court. He further contends that the

tribunal has awarded reasonable compensation which does

not call for any interference by this Court. Learned counsel

contends that the claimant is not-possessing effective and

valid driving licence is one of the grounds for attributing

negligence which is rightly assessed by the tribunal as

when the person who does not possess a driving licence

would not have the knowledge and qualification to drive or

ride the vehicle. On the basis of these submissions, learned

counsel for Insurer seeks for dismissal of the appeal.

8. Having heard learned counsel for appellant-

claimant and learned counsel for respondent-Insurer, the

points that arise for consideration before this Court are

that-

"i) Whether the tribunal has erred in awarding meager compensation ignoring the evidence both oral and documentary?

ii) Whether the tribunal has committed an error in attributing 10% contributory negligence against the claimant?

iii) Whether the enhancement of compensation is warranted under the present fact of the case?"

9. It is not in dispute that on 03.03.2018 at about

12.00 p.m. while the claimant was riding TVS motor cycle,

the rider of the offending vehicle came in a rash and

negligent manner and dashed against his vehicle leading to

the injuries being suffered by the claimant. To establish

these aspects of the negligence being caused by the rider of

the offending vehicle, claimant has produced Exs.P1 to P6,

which are Police records. These Police records having been

not challenged either by the driver of offending vehicle or

by the respondent-Insurer so also there is no contra

material placed before the Court to prove non-veracity of

these Police records. Hence, it can be safely concluded that

the rider of offending vehicle was responsible for riding the

vehicle in a rash and negligent manner leading to the

accident wherein the claimant has suffered injuries.

9.1. Coming to aspect of age, avocation and income

of the claimant, it is pleaded by claimant that he was an

agriculturist and doing onion business and earning

Rs.15,000/- to Rs.30,000/-. However, claimant has not

produced any cogent evidence with regard to proof of

income, no doubt, Ex.P11 has been produced which is a

documentary issued by the Inspector of Legal Metrology,

Madhugiri Sub-division, Government of Karnataka. This

document would certainly evidence the fact that the

claimant was doing some business wherein the weights has

been certified by the Legal Metrology Department, but it

does not evidence the proof of any specific income. The

tribunal has hence taken notional income of Rs.10,000/-

per month.

9.2. I am in agreement with the finding arrived at by

the tribunal for the reason that in the absence of proof of

income, the tribunal ought to have relied upon the notional

income chart prescribed by the Legal Services Authority for

the relevant year of accident. As per the chart, for the year

2018 accident, the income is prescribed at Rs.12,500/- per

month. Accordingly, I deem it appropriate to take the

notional income of Rs.12,500/- as against Rs.10,000/-

adopted by the tribunal. The multiplier of '15' adopted by

the tribunal is erroneous. The age of the claimant being 35

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years, the proper multiplier to be applied is '16' instead of

'15', in view of judgment of the Hon'ble Apex Court in the

case of Sarla Verma (Smt) and others vs. Delhi

Transport Corporation and another reported in

(2009) 6 Supreme Court Cases 121.

9.3. The claimant has examined PW.2, who is an

Orthopedic Surgeon having examined the claimant, on

clinical analysis has opined that claimant has difficulty in

brisk walking, to run, to climb stairs, sitting with leg

crossed and difficulty in squatting. He has also stated on

oath that fractures are united with implants in SITU. PW.2

has opined that the claimant has disability of 39% to the

left lower limb and 13% to the whole body. The tribunal on

appreciation of opinion expressed by the Doctor-PW.2 has

assessed the whole body disablement to an extent of 13%

as functional disability. In view of the above, the loss of

income due to permanent disability would be

Rs.3,12,000/- (Rs.12,500/- x 12 x 16 x 13%) as against

Rs.2,34,000/- awarded by the tribunal.

9.4. Towards pain and suffering, the tribunal has

awarded Rs.90,000/-, which does not call for interference

by this Court and the same is retained.

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9.5. Towards medical expenses, the tribunal has

awarded Rs.1,07,410/- on the basis of medical bills and

prescriptions produced at Exs.P9 and P10, same is on

actual bills. Hence, it is not interfered and same is

retained.

9.6. Towards conveyance, nursing care, nourishment

and towards other incidental expenses, the tribunal has

awarded Rs.7,000/-, despite the claimant having been

admitted as inpatient for a period of 09 days. I am of the

opinion that considering Rs.1,000/- per day, the claimant

deserves to be awarded Rs.10,000/- under this head as

against Rs.7,000/- awarded by the tribunal.

9.7. Towards future medical expenses, the tribunal

has awarded Rs.35,000/-, which is awarded on the basis of

evidence adduced by the Doctor-PW.2. I do not find any

legal error in such compensation being awarded.

9.8. Towards loss of earning during laid up period,

the tribunal has awarded Rs.50,000/-. In view of this Court

enhancing the income of claimant, I do not find any reason

to interfere with this amount and same is retained.

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9.9. Towards inconvenience, discomfort and future

amenities, the tribunal has awarded Rs.35,000/-. I do not

find any reason interfere with this amount as the same is

just and reasonable and commensurate to the injuries

sustained by the claimant and same is retained.

9.10. The tribunal has fastened liability of 10% as

contributory negligence against the claimant for not

possessing effective and valid driving licence to ride a two

wheeler as on the date of occurrence of accident, on the

basis of admission of PW.1 in the cross-examination that he

was not possessing a valid driving licence to ride a two

wheeler as on the date of accident. It is hard to agree with

the finding of the tribunal as the claimant cannot be

fastened 10% contributory negligence merely for non-

possessing valid and effective driving licence. The tribunal

would have to come a definite conclusive evidence against

the claimant for having contributed to the occurrence of

accident. In the present case on hand, there being no such

evidence against the claimant to have contributed to the

occurrence of accident, the finding of the tribunal to the

effect of 10% contributory negligence for not having

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effective and valid driving licence is erroneous and the

same is set aside.

9.11. In view of discussions made above, the

claimant would be entitled for enhancement of

compensation as mentioned in the table below:

       Heads        As awarded by the              As awarded by
                         tribunal                    this Court
                           (Rs.)                        (Rs.)
Towards pain and             90,000-00                   90,000-00
suffering
Towards medical           1,07,410-00                    1,07,410-00
expenses
Towards
conveyance,
nursing       care,
nourishment and               7,000-00                     10,000-00
towards      other
incidental
expenses
Towards     future           35,000-00                     35,000-00
medical expenses
Towards laid down            50,000-00                     50,000-00
period
Towards
permanent                 2,34,000-00                    3,12,000-00
disability
Towards
inconvenience,               35,000-00                     35,000-00
discomfort     and
future amenities
      TOTAL              5,58,410-00                     6,39,410-00

For the aforesaid reasons, I pass the following:

ORDER

i) The appeal is allowed-in-part;

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ii) Judgment and award passed by the Principal

Senior Civil Judge and MACT, Madhugiri in

MVC.No.709/2018 dated 06.08.2019, is modified;

iii) The claimant is entitled for total compensation of

Rs.6,39,410/- as against Rs.5,58,410/- awarded

by the tribunal;

iv) The entire compensation is liable to be paid by

respondent No.2;