Karnataka High Court
Sri Sunil Kumar N S vs Sri Akbar Sharief on 4 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.1121 OF 2020 (MV)
BETWEEN:
SRI SUNIL KUMAR N.S.
S/O.SHIVARAJA SHETTY
AGED ABOUT 26 YEARS
R/AT NAGAVARA VILLAGE
KASABA HOBLI
RAMANAGARA TALUK - 562 109
AND ALSO RESIDING AT
WARD NO.2, VIJAYANAGARA
RAMANAGARA TALUK - 562 115 ... APPELLANT
(BY SRI N.TEJAS ADVOCATE)
AND:
1. SRI AKBAR SHARIEF
S/O.PEER SHARIEF
MAJOR
R/AT NO.432/1, KOPPA VILLAGE
AND POST, MADDUR TALUK
MANDYA DISTRICT - 571 401
2. THE MANAGER
NEW INDIA ASSURANCE CO. LTD.
NO.2244/2, GIRIYAMMA
SHAMBUGOWDA COMPLEX
CHURCH ROAD
CHANNAPATNA - 562 160 ... RESPONDENTS
(BY SRI K.NAGARAJAIAH, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
DATED 24.08.2021)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT
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1988, PRAYING TO MODIFY AND ENHANCE THE
COMPENSATION AWARDED IN JUDGMENT AND AWARD
DATED 21.10.2019 PASSED IN M.V.C.NO.377/2015 BY THE
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL AND
III ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
RAMANAGARA & ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant seeking
enhancement of compensation, being unsatisfied with the
meager amount in judgment and award dated 21.10.2019
passed by the Additional Motor Accidents Claims Tribunal
and III Additional District and Sessions Judge at
Ramanagara in MVC.No.377/2015.
2. Though this matter is listed for admission, with
consent of learned counsel on both sides, matter is taken
up for final disposal.
3. Brief facts of the case:
The appellant herein-claimant was the rider of the
motor cycle bearing No.KA-42-J-4313 along with his
brother-in-law as a pillion rider. While they were riding on
the motor bike to attend marriage ceremony at Koppa
village on the left side of the road, auto rickshaw bearing
registration No.KA-11-A-7445 driven by the driver came
from the opposite direction in a rash and negligent manner
and dashed against the motor cycle of the claimant, which
lead to accident and claimant fell down and sustained
serious injuries to his right arm, neck and left eye,
immediately, the claimant took treatment at District
Hospital, Mandya, where he underwent surgery in respect
of his fracture injuries with implants. After few months, the
implants were removed and despite removal of the same,
the claimant was unable to do his normal work, as a result
of which, he went for check-up to the Doctor who has
assessed the permanent disablement of 8.9% to his upper
limb. Due to the injuries suffered by the claimant in the
accident having caused by rash and negligent driving of
respondent No.1-auto driver, the claimant has preferred the
claim petition before the tribunal seeking compensation.
4. On the basis of the pleadings, the tribunal has
framed issued.
5. In order to establish and prove the case, the
claimant examined himself as PW.1 and examined the
Doctor as PW.2 and got marked documents at Exs.P1 to
P57 in support of his case. On the other hand, the
respondents has not stepped into the witness box and has
neither lead any evidence or got marked any documents on
their behalf.
6. On the basis of material evidence both oral and
documentary produced by the claimant, the tribunal has
awarded the total compensation of Rs.1,61,160/- to the
claimant by fastening 40% of contributory negligence as
against the claimant and 60% of contributory negligence as
against the owner of the auto-rickshaw i.e. respondent
No.1, which was directed to paid by the insurer-respondent
No.2.
7. Being unsatisfied with the compensation awarded
by the tribunal and fastening of 40% of contributory
negligence, the claimant is before this Court in this appeal
by urging several grounds.
8. Heard Sri N.Tejas, learned counsel for appellant
and Sri K.Nagarajaiah, learned counsel for respondent
No.2.
9. It is the contention of learned counsel for
appellant herein-claimant that the judgment and award of
the tribunal is erroneous, illegal and same is unsustainable
in law and so far as it regards to the quantum of
compensation and attributing 40% contributory negligence
as against the claimant. He further contends that the
tribunal has erred in not considering the material evidence
placed on record by the claimant and merely because the
appellant has not produced the sketch of the place of
accident, the tribunal has erred in imputing contributory
negligence on behalf of the claimant. He also contends that
the Police records have been produced as per Exs.P1 to P3
which have not been denied or challenged by the
respondents. Therefore, the contributory negligence cannot
be imputed as against the claimant. The tribunal has erred
in taking income of the claimant, which is on the lower side
and the same is requires to be enhanced.
10. Learned counsel further contended that the
Tribunal has also erred in awarding a meagre
compensation for loss of income during laid-up period and
the medical expenses which includes attendant charges and
nursing charges during the period of admission of the
claimant in the hospital. With all the above grounds,
learned counsel for the appellant - claimant seeks to allow
the appeal and consequently modify and enhance the
compensation awarded by the Tribunal.
11. Per contra, learned counsel Sri K. Nagarajaiah
appearing on behalf of respondent No. 2 - insurer
vehemently contends that the Judgment and Award of the
Tribunal is perfectly in order and does not call for any
interference as there is no illegality committed by the
Tribunal as compensation under all heads under the scheme
of compensation has been awarded by the Tribunal.
12. Learned counsel further contends that the
contributory negligence attributed by the Tribunal as
against the claimant is also correct as it is the bounden
duty and responsibility of the claimant to prove the
rashness and negligence of respondent No.1 in occurrence
and causation of the accident. Therefore, on these
grounds, he contends that the appeal deserves to be
dismissed.
13. Having heard the learned counsel appearing for
the parties, this Court will have to see whether the
compensation awarded by the Tribunal is just and
reasonable and commensurate to the injuries sustained by
the claimant due to the accident.
14. It is not in dispute that accident occurred on
21.05.2015 between the Autorickshaw bearing registration
No. KA-11-A-7445 and the claimant who was riding the
motorbike bearing registration No.KA-42-J-4313, due to
which the claimant suffered serious injuries and underwent
surgery in respect of the fractures suffered as a result of
the accident. In order to establish his case, the claimant
has produced Exs.P1 to P3 being the FIR, Chargesheet and
certified copy of Mahazar which are the police records.
There is no dispute that there is the FIR and Chargesheet
filed against the driver of Autorickshaw. The same is not
challenged either by respondent No.1 or by respondent
No.2. Therefore, the criminal case registered against the
driver of the Autorickshaw has not been disputed by the
respondent. Under these circumstances it can be safely
inferred that there is rashness and negligence on behalf of
the driver of the Autorickshaw due to which the FIR and
Chargesheet have been laid against the driver of the
Autorickshaw.
15. No document has been produced by the
respondents to show that there is a challenge made either
to the Chargesheet or any significant evidence disproving
the criminal case registered against the driver of the
Autorickshaw. In fact, the respondent has not stepped into
the witness box to adduce any evidence and dispute the
theory put forth by the claimant with regard to the police
records. Under these circumstances, without any doubt it
can be inferred and conclusion can be arrived at that the
driver of the Autorickshaw was responsible for rashness and
negligent in driving the Autorickshaw which resulted in
accident causing injuries to the claimant herein.
16. The claimant contends that he is a Painter by
profession and was drawing an income of Rs.600/- per day.
However he has not produced any material records to prove
the same before the Tribunal or this Court. In a case where
a claimant is unable to produce proof of his income, the
Tribunal or this Court will have to rely and depend on the
notional income prescribed and stipulated by the High Court
Legal Services Committee to arrive at the notional income
to decide and compute the compensation. It is not in
dispute that the accident has taken place in the year 2015
and therefore the income ought to have been taken at
Rs.9,000/- per month as per the chart prepared by the High
Court Legal Services Committee. Whereas, the Tribunal
has taken the income at Rs.6,000/- per month which
according to me is on the lower side. Therefore, I deem it
proper to enhance the income of the claimant at Rs.9,000/-
per month.
17. The claimant though has stated that his age is
23 years, the Tribunal has arrived at a conclusion that the
claimant was aged 29 years and accordingly the multiplier
adopted by the Tribunal is 17 which is correct and I do not
find any illegality in the same or infraction as it is in
accordance with the Judgment of the Hon'ble Apex Court in
the case of Sarla Verma & Others Vs. Delhi
Transportation Corporation & Another, reported in
(2009) 6 SCC 121. Therefore, if the income of claimant is
taken as Rs.9,000/- per month, the loss of future earning
capacity would be as follows:
9000 x 12 x 17 x 9% = Rs.1,65,240/-
and Rs.1,65,240/- would be the loss of future earning
capacity due to the permanent disability assessed by the
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doctor at 8.9% which has been rounded off by the Tribunal
to 9% , as against Rs.1,10,160/- awarded by the Tribunal.
18. It is the contention of the claimant that he was
in-patient for a period of 21 days during the course of
treatment and accordingly the attendant charges, nursing
conveyance and transportation during this period requires
to be computed at Rs.1,000/- per day which would amount
to Rs.21,000/- under this head. The claimant has produced
medical bills during the course of treatment to the extent of
Rs.6,758/-. The same requires to be granted in view of the
actual amount of medical expenses expended by the
claimant. Accordingly Rs.6,758/- is awarded to the
claimant as 'medical expenses'.
19. The claimant was in-patient for a period of 21
days and suffered fracture on his left leg and it is the case
of claimant that he was a Painter. In view of the fracture
suffered by the claimant, he would require at least two
months to get back to his work and calculating 21 days'
treatment, I deem it appropriate to grant three months'
period for the laid-up period. Accordingly if income of
Rs.9,000/- per month is taken, Rs.27,000/- is the loss of
income during the laid-up period as against Rs.6,000/-
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awarded by the Tribunal. The Tribunal has awarded
Rs.5,000/- under the head of 'future medical expenses'. It
is seen that the implants have already been removed at the
Government Hospital, Mandya. Therefore there is no
requirement of awarding further future medical expenses to
the claimant. However the Tribunal has awarded Rs.5,000/-
towards the said head which would not be disturbed. Under
the head of 'loss of amenities', the Tribunal has awarded
Rs.5,000/- which is on the lower side. The same is
required to be enhanced by another Rs.20,000/-. In all,
Rs.25,000/- is awarded under the head of 'loss of
amenities' as against Rs.5,000/- awarded by the Tribunal.
For pain and agony undergone by the claimant in the
course of accident and during the period of treatment and
thereafter, the Tribunal has assessed and arrived at
Rs.25,000/- which is not disturbed.
20. It is the vehement contention of learned
counsel for the claimant that there is no contributory
negligence on the part of the claimant in the occurrence or
causation of the accident. However, on perusal of the
impugned Judgment, it is seen that the Tribunal has
fastened contributory negligence against the claimant solely
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on the ground that sketch has not been produced to arrive
at a sole conclusion that driver of the Autorickshaw was
solely responsible for rash and negligent driving. I am
afraid this view of the Tribunal cannot be accepted for the
simple reason that it is not for the claimant to produce the
sketch with regard to the place of accident which normally
is done by the police while conducting the investigation and
enquiry which prepares the sketch and same is produced in
the criminal court for establishment/assessment of penal
punishment to be awarded to the guilty person.
21. In the present case on hand, the claimant has
already produced Exs.P1 to P3 which are FIR, Chargesheet
and certified copy of Mahazar. These three documents are
not challenged or disputed by the respondents. Hence, they
will have to be taken and accepted on their face value.
When there is no dispute with regard to the police records
and the registration of criminal case, the Tribunal has fallen
in error in fastening the contributory negligence as against
the claimant to the extent of 40% which according to me is
irrational and the same requires to be set aside.
Accordingly, the claimant would be entitled to
compensation as follows:
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HEADS OF AMOUNT
COMPENSATION (IN RUPEES)
Pain and agony 25,000/-
Medical Expenses and 27,758/-
attendant charges,
Loss of income during 27,000/-
laid-up period for 3
months
Loss of future earning 1,65,240/-
capacity
Future medical expenses 5,000/-
Future unhappiness and 25,000/-
loss of
Amenities
TOTAL 2,74,998/-
rounded off to
Rs.2,75,000/-
22. In view of the above discussion and finding, this
Court passes the following:
ORDER
(i) The Miscellaneous First Appeal is allowed in
part.
(ii) The claimant in MVC No.377/2015 is held
entitled to a total compensation of
Rs.2,75,000/- as against Rs.1,61,160/-
granted by the Tribunal.
(iii) The finding of the Tribunal fastening 40%
liability towards contributory negligence, on
the claimant, is set aside.
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(iv) All other conditions stipulated by the
Tribunal shall stand intact.
(v) The compensation amount along with
interest as stipulated by the Tribunal shall be
deposited before the Tribunal by respondent
No.2 within a period of four weeks from
today.
(vi) The Judgment and Award dated 21.10.2019
in MVC No.377/2015 passed by the Court of
Addl. MACT and III Addl. Dist. and Sessions
Judge, Ramanagara stands modified
accordingly.
(vii) Registry to return the Trial Court records
along with a copy of this Judgment to the
MACT, forthwith.
Sd/-
JUDGE
LB/ sac*
