Karnataka High Court

Afsar Pasha vs Rakshith N on 7 March, 2022

Bench: Pradeep Singh Yerur

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 07TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

              M.F.A. NO.4095 OF 2019 (MV-I)

BETWEEN:
       AFSAR PASHA
       S/O ABDUL BASHEER
       AGED ABOUT 30 YEARS
       R/AT NO.26/2, JANATHA COLONY
       CHALLAGHATTA, KUMBAGODLU
       BENGALURU - 560 074
                                              .. APPELLANT
       (BY SRI K.SHANTHARAJ, ADVOCATE)
AND:
1.     RAKSHITH N
       S/O.NAGARAJU K
       MAJOR
       R/O NO.1, 1ST 'D' MAIN
       2ND CROSS, UPANAGAR
       BENGALURU - 560 060

2.     UNITED INDIA INSURANCE
       COMPANY LIMITED
       BY ITS MANAGER
       6TH FLOOR, KRISHI BHAVAN
       HUDSON CIRCLE
       NRUPATHUNGA ROAD
       BENGALURU - 560 001
                                       ... RESPONDENTS
     (BY SRI RAVISH BENNI, ADVOCATE FOR R-2; NOTICE
TO R-1 IS DISPENSED WITH)

                           ***
                                      2

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST    THE   JUDGMENT    AND    AWARD     DATED
24.01.2018,PASSED IN MVC NO.396/2018, ON THE FILE OF
THE XXI ACMM, & XXIII ADDITIONAL SMALL CAUSES
JUDGE AND MACT, BENGALURU , PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.

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

                             JUDGMENT

Heard learned counsel Mr. Shantharaj.K., learned

counsel for appellant and learned counsel Mr. Ravish Benni,

learned counsel for respondent No.2.

2. This is an appeal preferred by the claimant

being aggrieved by the judgment and award dated

24.01.2019 in MVC No. 396/2018 before the MACT, Court

of Small Causes at Bengaluru (hereinafter referred to as

'the Tribunal') seeking for an enhancement of the

compensation.

3. Brief Facts:

On 28.10.2017 at about 08.00 pm when the claimant

was walking near Mobile Mane, Kengeri Upanagar,

Bangalore a motor cycle ridden by its rider bearing

Registration No. KA-04 HW-2184, came in a high speed in a

rash and negligent manner from his opposite side and

dashed against the claimant. As a result of which claimant

fell down and sustained grievous injuries. Immediately, he

was shifted to Shreya Hospital, Bangalore, where he has

taken first-aid treatment and thereafter he was shifted to

Rajarajeshwari Hospital and obtained treatment.

4. It is the case of the claimant that before the

accident he was hale and healthy and doing driving work

and earning Rs.40,000/- per month. Pursuant to the

accident he is disabled permanently and he is unable to do

day to day activities as directed by his employer.

Therefore, he has lost earning capacity to drive a motor

vehicle as that was his skill and technical knowledge. Due

to the accident the claimant has suffered serious injuries

and incurred huge financial expenditure towards treatment

and surgery. Therefore, he has filed a claim petition before

the Tribunal seeking compensation.

5. On service of notice, respondent No.1 - owner

has not contested the case before the Tribunal and hence,

he was placed exparte. The respondent No.2 - the

Insurance company, appeared and filed its statement of

objections. It denied the claim made by the claimant, inter

alia, also took up a plea that the accident occurred due to

the fault of the claimant and contended that the respondent

No.1- rider of the motor cycle was not holding a valid

driving license as on the date of accident, therefore, he

violated the terms and conditions of the Policy. It is

contended that the negligence was on the part of the

claimant himself as he was not crossing the road at the

place specified and reserved to cross the road. He was

crossing the road by violating the traffic rules. Further,

pleaded that there is contributory negligence on the part of

the claimant. Hence, denied the liability on itself to pay the

compensation and sought for dismissal of the claim petition.

6. On the basis of the pleading the Tribunal

framed relevant issues.

7. In order to prove and establish his case, the

claimant got examined himself as PW1 and got marked

Ex.P1 to P10. He also got examined a Dr B.N.Roashan

Kumar, Orthopedic Surgeon as PW2 and marked three

documents at Ex.P11 to P13. The respondents, on the

other hand, got examined Mr. Rakshit, as RW1. However,

did not produce any documents on their behalf.

8. After hearing both sides and providing sufficient

opportunity to both parties, the Tribunal came to the

conclusion that the claimant is liable towards contributory

negligence of 25% and he would only be entitled for a

compensation in a sum of Rs.2,83,180/- with interest at the

rate of 8% per annum from the date of claim petition till

the date of payment. The respondent No.2 - Insurer was

directed to pay the compensation.

9. Being aggrieved by the Judgment and award of

the Tribunal for inadequacy of compensation and fastening

of contributory negligence of 25% on him, the claimant has

preferred this appeal seeking for enhancement and to set

aside the contributory negligence attributed on his part.

10. The point that would arise for consideration is

as to whether the Tribunal has awarded a reasonable and

just compensation in commensurate to the injuries suffered

by the claimant in the accident occurred on 23.09.2017?

11. It is vehemently contended by the learned

counsel for the appellant that the judgment and award

passed by the Tribunal is erroneous in law and Tribunal has

awarded a meager and inadequate compensation resulting

in mis-carriage of justice to the claimant. He further

contends that contributory negligence attributed by the

Tribunal is erroneous, unreasonable and is against the

material evidence produced by the claimant.

12. He further contends that that there is absolutely

no contributory negligence and entire negligence deserves

to fastened on the respondents. He further contends that

the income assessed by the Tribunal to compute the

compensation at Rs.9,000/-p.m is on the lower side,

whereas the claimant being the driver in profession was

earning a sum of Rs.40,000/- per month and accordingly

the same requires to be enhanced. He further contends

that the percentage of disability has been elaborately

discussed by PW2, none other than Doctor and in his

evidence stated that claimant has got permanent disability

at 45% to the left lower limb, which is 15% to his whole

body. However, Tribunal has taken only 13% as disability,

which is contrary to the material produced and erroneous to

the evidence adduced by PW2 - doctor.

13. He further contends that Tribunal has erred in

not computing the appropriate compensation for the loss of

income during the laid up period and so also towards future

medical expenses, which are on the lower side. He further

contends that the compensation awarded towards loss of

future income and happiness by the Tribunal is on the lower

side and the same requires enhancement. Hence, on those

grounds he seeks to allow the appeal and enhance the

compensation.

14. Per contra, learned counsel Mr. Ravish Benni,

learned counsel for respondent No.2 - Insurer vehemently

contends that judgment and award passed by the Tribunal

is a reasoned and considered order and the Tribunal has

considered all aspects of income, multiplier, loss of future

income so also pain and sufferings and accordingly awarded

just and reasonable compensation and the same does not

warrant interference by this Court. He further contends

that disability has been arrived by the Tribunal based on

the evidence lead by Doctor as PW2 and accordingly there

is no requirement of interference under this head.

15. He further contends that the Tribunal relied on

the documents produced by the claimant at Ex.P1 to P3 and

P6, wherein it is specifically stated that the rider of the

offending motorcycle riding the same in a rash and

negligent manner and dashed against the claimant who was

standing beside the road. He further contends that the

version of the respondent No.2 - Insurer is that there is

negligence on the part of the claimant himself as he was

crossing the road violating the traffic rules and regulations

and at the place where there was no provision for

pedestrian to cross the road. This aspect of the matter was

not considered by the Tribunal. Further it is his contention

that claimant has also contributed for occurrence of

accident. He further contends that it is the case of the

claimant that he is not crossing the road at stipulated

specified point of crossing the road, namely Zebra crossing

He further contends that it is very clear from the

documents produced that the claimant was cross the road

violating the rules and regulations and hence he is liable to

be fastened contributory negligence. Thus, awarding of

25% contributory negligence as against the claimant is

correct and same does not deserve to be interfered. On the

basis of these submissions learned counsel for respondent

No.2 - Insurer submits that the appeal does not merit

consideration and the same requires to be dismissed.

16. Having heard the learned counsel for appellant

and respondent No.2 and having perused the orginal

records and the impugned judgment and award, this Court

is of the opinion that this is a fit case for enhancement of

compensation in favour of the claimant for the reasons

stated below.

17. It is not in dispute that the accident occurred on

23.10.2017 at 8.00 pm when the rider of the motor cycle

dashed against the claimant who was walking near Mobile

Mane, Kengeri Upanagara, Bangalore from West to East. In

order to prove his case the claimant has produced Ex.P1 to

P3, which are Police records, wherein the FIR registered

against the rider of the vehicle and charge sheet is filed and

panchanama was also drawn. Once charge sheet is laid

against the rider of the motor cycle, which is apparent that

the charge is placed by the Police after thorough

investigation against the rider of the motor cycle. It is their

claim that there is a rash and negligent manner of driving

by the rider of the motor cycle. Though learned counsel for

respondent No.2 - Insurer contends that in the FIR, charge

sheet and the spot panchanama, it is clearly mentioned that

the claimant was moving from West to east after crossing

the divider in the center of the road and some where about

8 ft accident occurred, which is apparent from the

documents produced by the claimant himself. However,

the charge sheet or criminal case have not been challenged

either by the respondent No.1 or respondent No.2. This

apparently would go to show that there is no challenge to

the charge sheet prepared by the Police after conducting

investigation.

18. However, learned counsel for respondent No.2

- Insurer has read out the spot panchanama - Ex.P3, in

support of his case. It is further contended by the learned

counsel for respondent No.2 - Insurer that the

compensation awarded under all other heads are

commensurate with the injuries sustained by the claimant

which does not warrant interference by this court.

19. In motor vehicle accident cases what has to be

kept in mind and for consideration by the Court is

preponderance of probabilities and not proof beyond

reasonable doubt has to be proved as contemplated under

criminal law.

20. In the present case on hand when the claimant

has made out effective statement by furnishing police

records that he was a pedestrian and he was hit by the

motor cycle while he was standing in front of Mobile Mane

at Kengeri Upanagara, Bangalore, then it is for the

respondents to disprove the case of the claimant that he

was walking in the center of the road and not standing on

the side of the road. When the same has not been

countered and disproved by the respondents, the question

of attributing contributory negligence as against the

claimant by the Tribunal to the extent of 25% deserves to

be interfered by this Court.

21. It is not in dispute that apart from producing

ex.P7, which is copy of driving license of the claimant, no

other document is produced to show that he was a driver

and doing driving work and earning Rs.40,000/- per month.

Merely saying that he was earning Rs.40,000/- by doing

driver job no other relevant documents are either produced

before the Tribunal nor before this Court. However, in view

of there being no cogent material evidence to show his

income, the income is taken by the Tribunal at Rs.9,000/-

per month for the accident having occurred in the year

2017, I am in agreement with the argument of the learned

counsel for the claimant that when there is no income proof

produced by the claimant then Tribunal or this Court has to

adopt notional income as per the chart provided by the

Legal Services Authority.

22. In the present case on hand the accident

occurred in the year 2017, the notional income ought to

have been taken at Rs.11,000/- while the Tribunal has

taken Rs.9,000/- which is on the lower side. The claimant

has also produced Ex.P6 - driving license to show that he is

a driver by profession, which is not disputed by the

respondents. Further the claimant has not produced any

supporting document to show that he was a driver by

profession and was earning Rs.40,000/- per month. In the

present case, since the claimant has produced his driving

license, and he being a skilled worker, I deem it appropriate

to take his income at Rs.12,000/- per month. Accordingly,

the income of the claimant is taken at Rs.12,000/- per

month.

23. The claimant has produced Ex.P8, which is

aadhar card and Ex.P7 - driving license, the date of birth of

the claimant is shown as 10.09.1987 and the date of

accident is 23.10.2017. Thus, as on the date of accident

the claimant was aged 31 years. Therefore, the proper

multiplier applicable to the claimant as per the judgment of

the 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

would be 17. The Tribunal has adopted multiplier of 16.

In my opinion the proper multiplier 17 has to be adopted.

24. Claimant has got examined PW2 - Doctor, who

has stated in his evidence that the claimant has suffered

grievous injuries and sustained lacerated wound on left side

forehead, there is permanent disability to the extent of

45% to the left lower limb and 15% to the whole body,

whereas the Tribunal has taken disability at 13%, which is

erroneous and the same is required to be fixed at 15% to

whole body. Therefore, the claimant is entitled to

compensation in a sum of Rs.3,67,200/- (Rs.12,000 X 17

X 12 X 15/100) towards loss of future income as against

Rs.2,24,640/- awarded by the Tribunal.

25. The Tribunal has awarded a sum of Rs.40,000/-

towards pain and sufferings. The claimant was inpatient for

13 days and he has suffered fracture to his left leg.

Therefore, I deem it appropriate to enhance it by another

Rs.10,000/-. Accordingly, claimant is entitled to

compensation in a sum of Rs.50,000/- towards pain and

sufferings as against Rs.40,000/- awarded by the Tribunal.

26. The Tribunal has awarded a sum of Rs.18,000/-

towards loss of income during laid up period, which

deserves to be enhanced to Rs.36,000/- (Rs.12,000 x 3),

which accordingly awarded

27. The Tribunal has awarded a sum of Rs.20,000/-

towards loss of future amenities and happiness. In the

facts and circumstances of the case, I deem it just and

proper to increase the same by another Rs.20,000/-. Thus,

the claimant is entitled to compensation under this head at

Rs.40,000/-.

28. A sum of Rs.20,000/- is awarded by the

Tribunal to the claimant towards attendant, conveyance,

food and nourishment charges, which I do not find on the

lower side and does not require any interference.

29. Towards loss of future medical expenses the

Tribunal has awarded compensation to the claimant in a

sum of Rs.15,000/-, whereas PW2 - Doctor has lead in

evidence with regard to the injuries and expenses to be

incurred in future for removal of implants and other

incidental expenses Therefore, keeping in mind the

evidence of the doctor and his opinion, I deem it just and

proper to award a sum of Rs.25,000/- towards future

medical expenses as against Rs.15,000/- awarded by the

Tribunal.

30. The Tribunal on the basis of the medical bills

and other documents produced by the claimant as per

Ex.P10, has awarded a sum of Rs.39,831/- towards

Medical expenses. In my opinion awarding of the said

amount is based on the materials produced by the claimant.

I deem it just and proper and the same is retained.

31. On careful consideration of the evidence both

oral and documentary and also submissions of the learned

counsel for appellant as well as respondent No.2 - Insurer,

I am of the opinion that the Tribunal has committed an

error in fastening 25% contributory negligence on the part

of the claimant, whereas there is no basis or material

evidence to award such contributory negligence as against

claimant. Further, there is no dispute with regard to

registration of FIR and charge sheet Unless there is any

cogent evidence and relevant documents produced by the

respondents, fastening of contributory negligence on the

part of the claimant is an error committed by the Tribunal.

In the present case on hand, it is only preponderance of

probabilities which is required to be proved by the claimant

and not proof beyond reasonable doubt as required in

criminal case. Therefore, I deem it proper that contributory

negligence fastened by the Tribunal requires to be set

aside. Accordingly, it is set aside.

32. In view of the discussions made above, the

claimant would be entitled for the enhanced

compensation as mentioned in the table below.

    Sl.No.            Heads             Amount (Rs.)
      1.   Loss of future income         3,67,200=00
           (Rs.12,000/- X 12 X 17 X
           15/100)
      2.   Pain and suffering              50,000=00
      3.   Loss of income during laid      36,000=00
           up period
      4.   Loss of future amenities        40,000=00
           and happiness
      5.   Attendant,       conveyance,    20,000=00
           food     and     nourishment
           charges
      6.   Future medical expenses         25,000=00
      7.   Medical expenses                39,831=00
                                 TOTAL: 5,78,031=00

33. In view of the discussions made above, I pass

the following:

ORDER

i) The appeal is partly allowed.;

ii) Consequently, the judgment and award dated

24.01.2019 in MVC No. 396/2018 before the

MACT, Court of Small Causes at Bengaluru is

modified.;

iii) The compensation awarded by the Tribunal is

enhanced from Rs.3,77,471/- to

Rs.5,78,031/- (Rupees five lakh seventy

eight thousand thirty one only), with 6%