Karnataka High Court

Anjaneya @ Anjinappa vs Maqbul Sab on 10 October, 2022

Bench: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF OCTOBER, 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.7254/2017 (MV-I)

BETWEEN:

ANJANEYA @ ANJINAPPA,
S/O MANJAPPA,
AGED ABOUT 23 YEARS,
AGRICULTURIST CUM MILK VENDOR,
R/O HADADI VILLAGE,
DAVANAGERE TALUK
AND DISTRICT-577 001.                             ... APPELLANT

             (BY SRI R. SHASHIDHARA, ADVOCATE)

AND:

1.     MAQBUL SAB,
       S/O CHAMAN SAB,
       AGED 50 YEARS,
       AGRICULTURIST,
       R/O BALLUR VILLAGE,
       DAVANAGERE TALUK AND
       DISTRICT-577 001,
       DRIVER AND OWNER OF THE MOTOR
       CYCLE BEARING NO.KA-17/EK-3254.

2.     THE DIVISIONAL MANAGER
       NATIONAL INSURANCE CO. LTD,
       MELAGIRI PLAZA,
       DENTAL COLLEGE ROAD,
       DAVANAGERE-577 001.                    ... RESPONDENTS

           (BY SRI ASHOK N. PATIL, ADVOCATE FOR R2;
             VIDE COURT ORDER DATED 26.10.2018,
               NOTICE TO R1 IS DISPENSED WITH)
                                 2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED
IN MVC NO.897/2015 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND V ADDITIONAL MACT, DAVANGERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed challenging the judgment and

award dated 29.09.2016, passed in M.V.C.No.897/2015, on the

file of the I Additional Senior Civil Judge and V Additional MACT,

Davanagere, ('the Tribunal' for short).

3. The factual matrix of the case of the claimant before

the Tribunal is that he met with an accident on 06.06.2015 and

it is the claim of the claimant that the accident was on account

of the negligence on the part of the rider of the offending

vehicle, who came in the opposite direction. As a result, he

sustained injury to his right tibia. He was an inpatient for a

period of 24 days and the doctor, who has been examined as

P.W.2 assessed 38% disability and the Tribunal has taken 10%

disability.

4. The learned counsel for the appellant submits that it

was an accident of the year 2015 and the Tribunal has taken the

income of the claimant as Rs.6,000/- per month and in the

absence of any documentary evidence should have considered

the notional income of Rs.9,000/- per month. The learned

counsel submits that no compensation is awarded under the

head loss of amenities and other incidental expenses and hence

it requires interference of this Court.

5. Per contra, the learned counsel for respondent No.2

submits that the Tribunal considered the evidence on record and

rightly taken the disability of 10% for one fracture i.e., fracture

of tibia and awarded the compensation under other heads and

hence it does not require interference of this Court.

6. Having heard the learned counsel for the appellant

and the learned counsel for respondent No.2 and also on perusal

of the material available on record, the points that arise for the

consideration of this Court are:

(i) Whether the Tribunal has committed an error in taking the contributory negligence?

     (ii)    Whether the Tribunal has committed an error
             in   not   awarding     just   and   reasonable
             compensation?


     (iii)   What order?


Point No.(i):

7. Having heard the respective learned counsel and also

on perusal of the material available on record, no doubt the

police have filed the charge-sheet against both the riders of the

motorcycles. On perusal of Ex.P.1 complaint, pillion rider of the

claimant's vehicle made an allegation that both the riders of the

motorcycles were negligent in driving the vehicle. On perusal of

Ex.P.5 spot sketch, the claimant was proceeding on the very left

side of the road. When such being the case and when the same

is not disputed by the learned counsel for the appellant in the

cross-examination, the very statement of the complainant

cannot be accepted and the complainant also has not been

examined before the Tribunal. Apart from that, the Investigating

Officer is also not examined before the Tribunal by the Insurance

Company. The rider of the motorcycle of the appellant's vehicle

is not examined. When such being the case, when spot sketch

Ex.P.5 depicts the vehicle was proceeding on the left side of the

road, the Tribunal has committed an error in taking the

contributory negligence. While taking the contributory

negligence, the Court has to take note of cogent evidence before

the Court and no such cogent evidence is placed before the

Court and hence the Tribunal has committed an error taking the

contributory negligence of 50% and the very approach of the

Tribunal is erroneous. Hence, I answer point No.(i) in

affirmative.

Point No.(ii):

8. Having heard the respective learned counsel and also

on perusal of the material available on record, the injured has

sustained fracture of tibia and in support of his claim, he

examined the doctor as P.W.2, who assessed the disability of

38% and the Tribunal has taken 10% disability and hence I do

not find any force in the contention of the learned counsel for

the appellant that the disability assessed is on the lower side. In

a case of fracture of tibia and malunion of the same, the Tribunal

has rightly taken the disability of 10%. However, the Tribunal

committed an error in taking the income of Rs.6,000/- per

month instead of Rs.9,000/- per month in the absence of

documentary evidence. Having considered the income of the

claimant as Rs.9,000/- per month, applying the relevant

multiplier of '18' as he was aged about 21 years as on the date

of the accident and having taken the disability of 10%, the

claimant is entitled for an amount of Rs.1,94,400/- (Rs.9,000/-

x 12 x 18 x 10%) under the head loss of future income.

9. The Tribunal awarded an amount of Rs.50,000/-

under the head pain and suffering for fracture of tibia and he has

suffered loss of one teeth and the accident is of the year 2015

and awarding compensation of Rs.50,000/- does not require

any interference.

10. The Tribunal awarded an amount of Rs.24,000/-

under the head loss of income during the laid up period. Taking

the income of the claimant as Rs.9,000/- per month and laid up

period as four months, the claimant is entitled for an amount of

Rs.36,000/- (Rs.9,000/- x 4) towards loss of income during the

laid up period.

11. The Tribunal awarded an amount of Rs.44,175/-

towards medical expenses based on documentary evidence and

hence it does not require any interference of this Court.

12. The Tribunal has not awarded any compensation

under the head loss of amenities and he has to lead rest of his

life with disability of 10% and hence it is appropriate to award an

amount of Rs.30,000/- under the head loss of amenities.

13. The Tribunal has not awarded any compensation

under the head incidental expenses including food, attendant

charges, nourishment and conveyance and he was an inpatient

for a period of 24 days. Hence, it is appropriate to award an

amount of Rs.20,000/- under the said head.

14. In all, the claimant is entitled for compensation of

Rs.3,74,575/- as against Rs.2,47,775/- with interest at 6% per

annum on the enhanced compensation.

Point No.(iii):

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

following:

ORDER

(i) The appeal is allowed in part.


     (ii)    The impugned judgment and award of the
             Tribunal    dated      29.09.2016,      passed      in
             M.V.C.No.897/2015,          is   modified   granting

compensation of Rs.3,74,575/- as against Rs.2,47,775/- with interest at 6% per annum on the enhanced compensation from the date of petition till deposit.