Karnataka High Court
Sri. Gyanappa vs Sri.Pradeep And Ors on 23 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201747 OF 2018 (MV)
BETWEEN:
SRI. GYANAPPA,
S/O BASAPPA BHAJANTRI,
AGED ABOUT 24 YEARS,
OCC: AGRICULTURE & COOLIE WORKS,
R/O AMADIHAL VILLAGE, LINGASUGUR TALUK,
NOW AT SRI RAMANAGAR COLONY,
RAICHUR-584 101.
... APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. SRI. PRADEEP,
S/O RUDRA NAIK,
AGED ABOUT 25 YEARS, OCC: DRIVER,
R/O TOLAHUNASE VILLAGE,
DAVANAGERA TALUK & DISTRICT -577 001.
2. SMT. KALPANA JAIN,
W/O JITENDRA,
AGED ABOUT 39 YEARS,
OCC: HOUSEHOLD & OWNER OF CAR
BEARING NO.KA.17/N-8919,
R/O DOOR NO.520/68, 'B' BLOCK,
2ND STAGE, SHIVA KUMAR SWAMY LAYOUT,
DAVANGERA-577001.
3. THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
2
NEAR GANDHI CHOWK,
RAICHUR-584 101.
... RESPONDENTS
(BY SRI. PRAKASH R.KULKARNI, ADVOCATE FOR R1 & R2)
SRI. S.S. ASPALLI, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE M.V.ACT PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 14.06.2018 PASSED BY
THE PRL. DISTRICT & SESSIONS JUDGE & MACT, RAICHUR
IN MVC NO.406/2016.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the petitioner under
Section 173(1) of the Motor Vehicles Act (for short
'the Act') aggrieved by the judgment and award dated
14.06.2018 passed by the Motor Accident Claims
Tribunal, Raichur (for short hereinafter referred to as
'the Tribunal') in MVC No.406/2016.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellant is the petitioner and respondents
are the respondents before the Tribunal.
3. Facts giving rise to filing of this appeal are
as under:
On 26.12.2015 the petitioner was proceeding on
his motor cycle bearing registration No.KA-36/EH-
8497 towards his land from his house at about
8.00 a.m. When he was proceeding near the land of
Hanumanthappa S/o Mudeppa on Amadihal - Ilkal
main road, at that time, respondent No.1 came from
opposite direction driving his car bearing registration
No.KA-17/N-8919 in rash and negligent manner with
high speed and lost control over it and dashed to the
motor cycle of the petitioner, as a result, the
petitioner sustained grievous injuries and was
hospitalized and spent huge amount for medical
treatment. Hence, the petitioner filed claim petition
under Section 166 of the M.V.Act, seeking
compensation due to the injuries sustained in the road
traffic accident.
4. The respondents No.1 and 2 appeared
before the Tribunal through their counsel and filed
written statement denying the averments made in the
claim petition and contended that the accident was
occurred due to rash and negligent riding of the rider
of the motor cycle bearing registration No.KA-63/EH-
8497 and also denied the medical expenses and
prayed to dismiss the petition.
4.1. Respondent No.3 - Insurance Company
filed written statement denying the averments made
in the claim petition. It is contended that the accident
was occurred due to rash and negligent driving of the
car by respondent No.1. Further, contended that the
driver of the offending vehicle was not holding valid
and effective driving licence as on the date of accident
Hence, respondent No.3 is not liable to pay
compensation and prayed to dismiss the petition.
5. The Tribunal on the basis of the pleadings
of the parties framed the issues.
6. The petitioner in order to prove his case,
examined himself as PW.1 and in order to prove the
disability, examined the doctor as PW.2 and got
marked the documents as Ex.P1 to Ex.P87. On behalf
of the respondents, respondent No.3 examined its
official as RW-1 and got marked the document as
Ex.R1. The Tribunal, after recording the evidence and
considering the material on record, held that
petitioner has proved that, he met with an accident on
26.12.2015, and the accident was occurred due to
rash and negligent driving of the driver of the
offending vehicle and further, held that petitioner has
sustained grievous injuries in the alleged accident.
Further, held that petitioner is entitled for a
compensation and consequently allowed the petition in
part and awarded a compensation of Rs.2,86,200/-
with interest at the rate of 6% p.a., from the date of
petition till its realization. Further, the Tribunal has
fastened the liability at the ration of 75:25 percent.
Accordingly, 75% has been fastened on the
respondent No.3 - Insurance Company and 25% has
been fastened on the petitioner. Being aggrieved by
the judgment and award passed by the Tribunal,
petitioner has filed this appeal on the ground that
quantum of seeking enhancement of compensation
and 25% liability fastened on the petitioner.
7. Heard the learned counsel for the petitioner
and the learned counsel for the respondent No.3 -
Insurance Company.
8. Learned counsel for the petitioner submits
that the Tribunal has committed an error in fastening
the liability to the extent of 25% on the petitioner. He
further submits that the respondents have not
examined any eye-witness in order to prove that the
petitioner has contributed for the cause of accident.
He further submits that the chargesheet - Ex.P5 is
filed against the driver of the offending vehicle and
chargesheet has not been filed against the petitioner.
Further submits that, the petitioner was doing
agriculture coolie work and earning Rs.15,000/- per
month. In the absence of income proof, the Tribunal
has taken the income of the petitioner at Rs.6,000/-
per month which is on the lower side. He further
submits that, in order to establish the permanent
disability petitioner examined the doctor as PW-2, who
has opined that petitioner had suffered disability at
15% to the whole body, wherein the Tribunal has
assessed the disability at 10%, which is on the lower
side. He further submits that the compensation
awarded by the Tribunal under the other heads is on
the lower side. Hence, on these grounds, he prays to
allow the appeal.
9. Per contra, learned counsel for the
respondent No.3 - Insurance Company contended that
the petitioner was riding the motor cycle and the
accident was occurred due to rash and negligent riding
of the rider of the motor cycle. Further, respondent
No.3 filed an application before the Tribunal calling
upon the petitioner to produce the copy of driving
licence or insurance police. The said application came
to be allowed, inspite of order passed by the Tribunal,
petitioner has failed to produce the copy driving
licence or insurance policy. He further submits that
the Tribunal was justified in fastening the liability to
an extent of 25% on the petitioner. He submits that
the compensation awarded by the Tribunal is just and
reasonable and does not call for interference and
prays to dismiss the appeal.
10. Perused the records and considered the
submissions made by the learned counsel for the
parties.
11. The point that arises for consideration are
with regard to liability and quantum of compensation.
12. It is not in dispute that the petitioner met
with an accident and sustained grievous injuries. In
order to prove that the accident has occurred due to
rash and negligent driving of the driver of the
offending vehicle, the petitioner has produced the
copy of FIR and chargesheet marked as Ex.P1 and
Ex.P5. Ex.P5 discloses that the accident occurred due
to rash and negligent driving of the driver of the
offending vehicle.
13. Insofar as quantum of liability is concerned,
it is the case of the petitioner that, the accident has
occurred due to rash and negligent driving of the
driver of the offending vehicle. On the contrary,
respondent No.3 - Insurance Company has taken a
specific defence in the written statement that the
petitioner has contributed for the cause of accident.
In order to support the defence of respondent No.3,
respondent No.3 has not examined any eye-witness to
the incident.
14. Further, it is the case of the respondent
No.3 - Insurance Company that, the petitioner was
not possessing valid driving licence to ride the motor
cycle. Merely, if the rider did not possess a driving
licence and if he has not shown negligence for the
accident, he cannot be attributed of contributing
negligence.
15. In view of the law laid down by the Hon'ble
Apex Court in the case of SUDHIR KUMAR RANA -
vs- SURINDER SINGH & ORS. Reported in
(2008) 12 SCC 436, the Hon'ble Apex Court
elaborated on composite negligence and contributory
negligence, In the light of the principle laid down in
the said case. The Division Bench of this Court relying
upon the judgment of SUDHIR KUMAR RANA
(Supra), held that the Division Bench in the case of
DIVISIONAL MANAGER, NATIONAL INSURANCE
COMPANY LIMITED -VS- SMT. SUNANDA AND
ORS. reported in 2011 KAR MVC 116, observed thus:
"If the violation of statutory rules has
resulted in the accident, certainly we can
hold the person who violated of a statutory
provision cannot lead to an inference that
the accident was on account of the
negligence. Something more is to be done.
Evidence has to be adduced in a particular
case that the violation of a statutory rule
resulted in negligence which in turn
resulted in the accident, the proportionate
contributory negligence could be attributed
to the persons who violated the statutory
provisions. Ultimately it depends on the
facts of each case. In the instant case, no
doubt apart from the driver of motor cycle,
there were two pillion riders."
16. In the light of judgment of Hon'ble Apex
Court and also the Division Bench judgment, the
respondent No.3 - Insurance Company has failed to
establish that the petitioner has attributed the
contributory negligence. There is no negligence on
the part of the petitioner in causing accident. The
Tribunal has committed an error in fastening the
liability on the petitioner to and extent of 25% and
finding recorded by the Tribunal on the liability is
concerned it requires an interference. The
respondents No.1 to 3 are jointly and severally liable
to pay entitle compensation amount.
17. Insofar as quantum of compensation is
concerned, the petitioner has contended in the
petition that he was doing agriculture cooler work and
earning Rs.15,000/- per month. In order to establish
the income of the petitioner, the petitioner has not
tender any evidence with regard to his income before
the Tribunal. Therefore, as per the chart provided by
the Karnataka State Legal Services Authority, the
notional income will have to be taken into
consideration. In terms of the chart, for the accident
of the year 2015, the notional income of the petitioner
will have to be taken at Rs.8,000/- as against
Rs.6,000/- per month taken by the Tribunal. PW.2-
Doctor has issued disability certificate as per Ex.P7
assessing the disability at 15% to the whole body and
petitioner has produced medical records i.e., X-ray
report, and etc. Considering the medical records
produced by the petitioner and the evidence of PW.2,
the disability taken by the Tribunal at 10% to the
whole body which is just and proper. Taking into
account the age of the petitioner who was 22 years at
the time of accident, multiplier of "18" has to be
adopted. Therefore, the petitioner would be entitled to
compensation towards loss of future income at
Rs.1,72,800/- (Rs.8,000/- X 12 X 18 X 10%).
18. Considering the nature of the injuries
sustained by the petitioner and also evidence of PW-2,
the compensation awarded by the Tribunal is on the
lower side and the same is re-assessed in the
following manner:
Compensation awarded in Rs.
Particulars By the
By this Court
Tribunal
Pain and Sufferings 30,000/- 40,000/-
Medical Expenses 73,600/- 73,600/-
Attendant Charges 6,000/- 10,000/-
Nourishment & Extra
5,000/- 10,000/-
nourishment charges
Loss of earning
during treatment 12,000/- 24,000/-
period
Loss of future earning 1,29,600/- 1,72,800/-
Loss of amenities 10,000/- 25,000/-
Future Medical
20,000/- 20,000/-
Treatment
Total
2,86,200/- 3,75,400/-
Rounded off
Enhanced by this Court Rs.89,200/-
Thus, the petitioner is entitled for total
compensation of Rs.3,75,400/- as against Rs.2,86,200/.
The petitioner is entitled for enhanced compensation of
Rs.89,200/-.
19. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed
by the Tribunal is modified. The petitioner
is entitled to an enhanced compensation of
Rs.89,200/- along with interest at the rate
of 6% per annum from the date of petition
till the date of realization.
iii. The respondents No.1 to 3 are jointly and
severally liable to pay entire compensation
amount to the petitioner.
iv. The respondent No.3 - Insurance Company
is directed to deposit the entire
compensation amount within a period of
eight weeks from date of the receipt of
certified copy of this judgment.
SD/-
JUDGE
GRD
