Karnataka High Court

Jagadish R vs S. Sundar on 23 March, 2022

Bench: J.M.Khazi

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 23RD DAY OF MARCH, 2022

                         BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                M.F.A.NO.9456/2015 (MV)
BETWEEN:

JAGADISH R
T.RAMAIAH,
AGED ABOUT 30 YEARS,
R/AT 2ND CROSS,
V.V. NAGARA,
MANDYA - 571 401.
                                          ... APPELLANT
(BY SMT. BHUSHANI KUMAR, ADVOCATE)

AND:

1.     S. SUNDAR
       S/O KESHAVA
       DOOR NO.640/1, 1ST FLOOR
       BRITISH BIOLOGICAL ROAD,
       ARAKERE VILLAGE,
       B.G.ROAD,
       BANGALORE - 560 076.

2.     THE MANAGER (LEGAL)
       RELIANCE GENERAL
       INSURANCE COMPANY LTD
       MYSORE TRADE TOWERS,
       OPP. KSRTC BUS STAND
       MYSORE - 570 001.
                                         ...RESPONDENTS
(BY SRI. B PRADEEP, ADVOCATE FOR R2;
    V/O/DTD 07.03.2022, R1 NOTICE D/W)
                                   2


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO CALL FOR RECORDS IN MVC NO.1912/2012
DATED: 26.09.2015 ON THE FILE OF THE II ADDL. SENIOR
CIVIL JUDGE & ADDL. MACT, MANDYA AND TO MODIFY THE
AWARD BY ALLOWING THE CLAIM PETITION, IN THE INTEREST
OF JUSTICE AND EQUITY.

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

                          JUDGMENT

Though this appeal is posted for admission, with the

consent of learned counsel for both the parties the same is taken

up for final disposal.

2. This appeal is by the petitioner seeking enhancement

of compensation and also to set aside the impugned judgment

and award fixing 50% contributory negligence on him.

3. For the sake of convenience the parties are referred

to by their rank before the Tribunal.

4. It is the case of the petitioner that on 22.04.2012 he

was riding Pulsar Motor cycle bearing registration No.KA 04/EP

766 from Somanahalli towards Mandya in order to go to his

sister's house. At around 12-00 midnight when he was

proceeding at Somanahalli village on Mysuru-Bengaluru

Highway, a Qualis car bearing registration No.KA 05/MD 5477

(hereinafter referred to as offending vehicle) was parked by the

side of the main road without any indicator in a negligent

manner. As a result of which petitioner dashed against the back

portion of the Qualis car and fell down and sustained multiple

injuries. At the time of accident, he was aged 27 years and was

earning Rs.12,000/-p.m. by agriculture and coolie. He has

suffered disability and unable to earn as he used to.

Respondents being the owner and insurer of the offending

vehicle are liable to pay the compensation.

5. Before the Tribunal respondent No.1 remained Ex-

parte.

6. Respondent No.2 appeared and filed written

statement denying that accident occurred due to the parking of

the Qualis without indicator in a negligent manner. On the other

hand the accident occurred due to the rash or negligent driving

by the petitioner himself. Respondent No.2 has also denied the

age, occupation, income, nature of the injury sustained by the

petitioner and that it has resulted in permanent partial disability.

Ultimately, if it is proved that the offending vehicle was covered

by a valid policy, it's liability is subject to the terms and

conditions of the policy.

7. Based on the pleadings, necessary issues were

framed by the Tribunal.

8. In support of his case petitioner has examined

himself as PW-1 and got marked Ex.P1 to P10. On behalf of the

respondent No.2, the accident register extract is marked as

Ex.R1.

9. Vide the impugned judgment and award, the

Tribunal has held that accident occurred due to the negligent

parking of the offending vehicle and also due to the rash or

negligent driving by the petitioner and as such petitioner has

contributed 50% of negligence. The Tribunal has quantified the

compensation at Rs.1,15,000/- and 50% of it i.e., Rs.57,500/- is

ordered to be paid to the petitioner. The details of the

compensation granted by the Tribunal is as under:

                       Heads                   Amount
                                                in Rs.
           Pain and suffering                         40,000
           Medical expenses                           5,000
           Towards                attendant,          10,000
           conveyance, Nourishment and
           towards       other     incidental
           expenses
           Towards loss of earning during             20,000
           treatment and rest
           Towards      physical    disability        25,000
           causing                   physical
           inconvenience,        discomfort,
           frustration, etc.
           Towards future amenities                   15,000
           TOTAL                                   1,15,000

Compensation payable to petitioner is Rs.57,500/- (being 50% of the sanctioned amount)

10. Being aggrieved by the impugned judgment and

award fixing 50% of contributory negligence on him and ordering

for only 50% compensation, the petitioner has come up with this

appeal contending that the compensation granted under various

heads is on lower side. The Tribunal is not justified in fixing 50%

contributory negligence on the petitioner. The Tribunal would

have granted interest at 12% p.a. instead of 9%.

11. Heard arguments of both sides and perused the

records.

12. During the course of the argument, the learned

counsel for the petitioner submitted that at least the contributory

negligence may be reduced to 30% and having regard to the

nature of the injury sustained by the petitioner, the

compensation under various heads may be increased. On the

other hand learned counsel for respondent No.2 submitted that

the impugned judgment and award does not call for interference

by this Court and prays to dismiss the appeal.

13. In view of the specific contentions raised by the

petitioner before this Court, it has become necessary to examine

whether the compensation granted by the Tribunal is just and

reasonable and also whether the Tribunal is justified in fastening

50% contributory negligence on the petitioner.

14. In respect of the accident, the complaint was lodged

by the petitioner himself. However, after conducting a detailed

investigation, the Investigating Officer has filed charge sheet not

only against the driver of the offending vehicle, but also made

petitioner as co-accused holding that he was also negligent in

not observing the vehicle which was parked by the side of the

road and dashing against it.

15. In the written statement respondent No.2 has

contended that the petitioner was negligent to the extent of 75%

and the contributory negligence so far as driver of the offending

vehicle is required to be fixed at 25%. In the charge sheet it is

stated that the driver of the offending vehicle was traveling from

Bengaluru side towards Mysuru side and at the place of accident,

the said vehicle became out of order and therefore instead of

parking it by the side of the road, he parked it in the centre of

the road without any indicator and thereby contributed towards

the accident.

16. Similarly, in the charge sheet it is alleged that the

petitioner rode his two wheeler in a rash or negligent manner

and dashed against the parked offending vehicle and thereby

contributed towards the accident. Since the Qualis vehicle in

question was not parked by the side of the road, but it was

parked in the middle of the road, I am of the considered opinion

that the contributory negligence on the part of the offending

vehicle is more when compared to that of petitioner and

therefore, the contributory negligence on the part of the driver

of the offending vehicle is to be increased to 70% and that of the

petitioner is to be decreased to 30%.

17. Now, coming to the quantum of compensation

granted by the Tribunal under various heads and to examine

whether it requires re-consideration.

18. Pain and suffering: As evident from Ex.P4 - the

wound certificate, the petitioner has sustained fracture of both

bones of the right leg. While injury No.1 is simple, the other two

injuries are stated to be grievous. Petitioner was admitted to

Government Hospital, Mandya and he has undergone surgery.

He was in-patient for 19 days. The Tribunal has granted

compensation in a sum of Rs.40,000/- under the head pain and

suffering. However, having regard to the nature of injury

sustained, treatment taken and duration of the treatment, I hold

that petitioner is entitled for additional sum of Rs.10,000/- under

this head.

19. Medical expenses: Based on the medical bills, the

Tribunal has granted compensation in a sum of Rs.5,000/-. Since

the petitioner has taken treatment at the Government Hospital,

it appears he has incurred less expenses when compared to

Private Hospital. Since this amount is granted based on the

medical bills, I find no reason to interfere with the same.

20. Attendant, conveyance, nourishment and incidental

charges: The Tribunal has granted compensation in a sum of

Rs.10,000/- under this head. Since the petitioner has taken

treatment at Government Hospital, Mandya, it has come in the

evidence that food was provided to him. However, having regard

to the fact that he has suffered two fractures and was impatient

for 19 days, it would be appropriate if this compensation under

this head is increased by another 5,000/- making the total

compensation under this head to Rs.15,000/-.

21. Loss of earning during the treatment period: The

Tribunal has granted compensation in a sum of Rs.20,000/-

under this head by taking notional income at Rs.5,000/- p.m.

and granted compensation for a period of four months. The

petitioner has not produced any evidence to show his exact

income. Since the accident is of the year 2012, based on the

chart prepared by the KSLSA (Karnataka State Legal Services

Authority, the notional income for the year 2012 is required to

be taken at Rs.7,000/- p.m. At the rate of Rs.7,000/- p.m. for a

period of four months, the petitioner is entitled for a

compensation in a sum of Rs.28,000/- as against Rs.20,000/-

granted by the Tribunal.

22. Loss of amenities: The Tribunal has granted a

compensation in a sum of Rs.15,000/- under the head loss of

amenities of life. It has also granted compensation in a sum of

Rs.25,000/- under another head by captioning it as "Physical

disability, causing physical inconvenience, discomfort, frustration

etc". When the compensation is granted under the head loss of

amenities, it includes the physical disability, physical

inconvenience, discomfort, frustration etc. Therefore, unless and

until the injury has resulted in disability affecting the earning

capacity, compensation under such separate heads need not be

granted. Therefore grant of Rs.25,000/- under the said head is

disallowed. However, the grant of compensation under the head

loss of amenities of life in a sum of Rs.15,000/- is very low.

Therefore, having regard to the nature of the injury sustained,

duration of the treatment and also the fact that petitioner has

undergone operation, I hold that petitioner is entitled for

compensation in a sum of Rs.40,000/- as against Rs.15,000/-

granted by the Tribunal.

23. Thus, in all petitioner is entitled for compensation in

a sum of Rs.1,38,000/-. Since 30% contributory negligence is

fixed on him he is entitled for the 70% of amount which comes

to Rs.96,600/- as detailed below:

Heads Amount granted by Amount granted by the Tribunal this Court In Rs. In Rs.

   Pain and suffering                   40,000               50,000
   Medical expenses                       5,000                5,000
   Towards       attendant,
   conveyance,
   Nourishment         and               10,000               15,000
   towards            other
   incidental expenses
   Towards       loss    of
   earning           during              20,000               28,000
   treatment and rest
   Towards         physical
   disability       causing              25,000
   physical                                               -
   inconvenience,
   discomfort,
   frustration, etc.
   Loss of amenities                     15,000               40,000

   TOTAL                               1,15,000           1,38,000

                              50% of 1,15,000=    70% of 1,38,000=
                                        57,500              96,600

24. The Tribunal has granted interest at 9% p.a. without

any basis. Therefore, the same is fixed at 6% p.a. Accordingly I

proceed to pass the following:

ORDER

(i) Appeal is allowed in part.

(ii) Appellant/Petitioner is entitled for

compensation in a sum of Rs.96,600/- as against

Rs.57,500/- granted by the Tribunal together with

interest at 6% p.a. from the date of petition till

realization (minus the amount already

paid/deposited).