Karnataka High Court

Narayana vs Savitha on 11 October, 2022

Bench: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF OCTOBER, 2022

                          BEFORE

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

                 M.F.A.NO.5013/2015 (MV-I)

BETWEEN:

NARAYANA,
S/O CHANAIAH,
AGED ABOUT 34 YEARS,
R/OF HALEBUDANUR VILLAGE,
MANDYA TALUK,
MANDYA DISTRICT 571401.
                                               ...APPELLANT

                 (BY SRI RAJA L, ADVOCATE)

AND:

1.     SAVITHA,
       40 YEARS,
       W/O CHIKKONU,
       RESIDENT AT KOPPA VILLAGE,
       MADDUR TALUK,
       MANDYA DISTRICT-571401.

2.     THE AUTHORISED SIGNATORY,
       BAJAJA ALLIANZ GENERAL
       INSURANCE CO. LTD.,
       363, SRI HARI COMPLEX,
       SEETHA VILAS ROAD,
       MYSORE 570001.                        ...RESPONDENTS

           (BY SRI B. PRADEEP, ADVOCATE FOR R2,
             NOTICE TO R1 IS DISPENSED WITH
               VIDE ORDER DATED 11.10.2022)
                                  2



     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.01.2015
PASSED IN MVC NO.3/2011 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, ADDITIONAL MACT, MANDYA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

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

                         JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent No.2.

2. This appeal is filed challenging the judgment and

award dated 30.01.2015, passed in M.V.C.No.3/2011, on the file

of the II Additional Senior Civil Judge, Additional MACT, Mandya

('the Tribunal' for short) questioning the contributory negligence

and quantum of compensation.

3. The factual matrix of the case of the claimant is that

on 18.10.2010, the claimant after finishing his daily routine work

as coolie-cum-mestri was riding his motorcycle on the left side of

Koppa-Maddur road and the tractor trailer which came in

opposite direction hit the motorcycle, as a result, he fell down

and sustained injuries like fracture of femur and humerus and

immediately he was taken to Government Hospital and

thereafter he was shifted to Cauvery Hospital, Mysuru wherein

he was treated as an inpatient for a period of 29 days. It is the

claim of the claimant that he had spent an amount of 2,50,000/-

towards medical expenses, hospital charges and Rs.80,000/-

towards diet and other expenses and also Rs.30,000/- towards

implant and he is also in need of the amount for future

treatment. The claimant in order to substantiate his claim, he

examined himself as P.W.1 and got marked the documents at

Exs.P.1 to 16. The doctor was examined by the Court

Commissioner as C.W.1 and he assessed the disability of 33% to

the whole body and the Tribunal has taken 30% disability. The

respondents got marked the document at Exs.R.1 to 5 and also

examined one witness as R.W.1. The documents are also

marked through the Court Commissioner as Exs.C.1 to 6. The

Tribunal after considering both oral and documentary evidence,

awarded an amount of Rs.7,54,000/- and deducting 50% of

contributory negligence, awarded Rs.3,77,000/- with 9%

interest. Hence, the present appeal is filed before this Court.

4. The main contention of the learned counsel for the

appellant is that the Tribunal has committed an error in taking

the contributory negligence of 50% on the part of the claimant.

Only R.W.1 was examined and not examined the driver of the

tractor trailer and when such being the case, no contributory

negligence could have been taken by the Tribunal. The Tribunal

mainly relies upon the crime details form wherein sketch is

mentioned and no cross-examination to that effect. Inspite of it,

50% contributory negligence is taken and hence it requires

interference of this Court. The learned counsel submits that

compensation awarded is very meager and hence it requires

interference of this Court.

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

would vehemently contend that the Tribunal has not committed

any error in taking the contributory negligence of 50% on the

part of the claimant as he only came to the right side and caused

the accident. The driver of the tractor trailer was proceeding on

the right direction and width of the road is 18 feet and the

claimant came to the right side to the extent of 11 feet and

hence the accident was occurred. The learned counsel submits

that the Tribunal also taken the future loss of income while

assessing the disability and hence it does not require

interference of this Court.

6. Having heard the respective learned counsel 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 apportioning 50% negligence on the part of the claimant/appellant?


      (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, the Tribunal has

taken the negligence to the extent of 50% on the part of the

claimant by relying upon the document of crime details form and

also the document of Ex.P.5 charge-sheet. The learned counsel

for the appellant would contend that in the order sheet, which is

marked as Ex.P.6, the driver of the tractor trailer admitted his

guilt and pleaded guilty and no contra evidence is led against the

said material. The driver of the tractor trailer has not been

examined by the Insurance Company and only mainly relying

upon the sketch prepared by the Investigating Officer, the

Tribunal considered the same and the Investigating Officer also

has not been examined before the Tribunal. Ex.P.2 spot

mahazar depicts the measurement of road as 18 feet and tractor

was proceeding in the same direction and the motorcyclist went

on the right side. In the cross-examination of P.W.1, a

suggestion was made that tractor trailer was proceeding in same

direction, but nowhere in the cross-examination of P.W.1

suggested that he came to the right side and dashed against the

tractor trailer and no effective cross-examination of P.W.1 with

regard to the contributory negligence is concerned. However,

the document of crime details form has been placed by the

claimant himself, but I have already pointed out that there is no

effective cross-examination with regard to the contributory

negligence. Hence, it is appropriate to take the contributory

negligence of 40% against the claimant and 60% against the

tractor trailer. Accordingly, point No.(i) is answered partly in

affirmative.

Point No.(ii):

8. The contention of the claimant is that he has

suffered the injury like fracture of femur and humerus and he

was an inpatient for a period of 23 days. The discharge

summary is marked as Ex.P.13 and in terms of discharge

summary, he was an inpatient from 19.10.2010 to 08.11.2010

and again he was re-admitted on 11.05.2011 and discharged on

13.05.2011. Having taken note of he was an inpatient for a

period of 23 days, the Tribunal awarded an amount of

Rs.20,000/- under the head attendant charges, conveyance,

nourishment and other incidental expenses and it was an

accident of the year 2012, hence it does not require and

interference of this Court.

9. The Tribunal rightly awarded an amount of

Rs.65,000/- under the head pain and suffering and he had

suffered the fracture of femur and also humerus and he was an

inpatient for a period of 23 days and hence it does not require

interference of this Court.

10. The Tribunal awarded an amount of Rs.1,40,000/-

towards medical expenses and the same is based on

documentary evidence and hence it does not require interference

of this Court.

11. The Tribunal awarded an amount of Rs.25,000/-

towards loss of income during laid up period and the same does

not require interference of this Court.

12. However, regarding loss of income due to permanent

disability is concerned, the Apex Court in the case of

ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT

CORPORATION LTD. reported in 2020 SCC Online SC 601,

taken the disability of 31.1% and awarded the future prospects

and in the case on hand also the doctor assessed the disability of

33% and the Tribunal accepted the disability 30%. When he has

suffered fracture of femur and humerus, the Tribunal ought to

have accepted 33% disability in view of shortening. Hence, it

requires interference of this Court. Having taken the notional

income of Rs.5,500/- per month, 40% of the income has to be

added as future prospects. If it is added it comes to Rs.7,700/-.

Hence, the claimant is entitled for an amount of Rs.5,18,364/-

(Rs.7,700/- x 12 x 17 x 33%) under the head loss of income

due to permanent disability.

13. The Tribunal awarded an amount of Rs.20,000/-

under the head loss of amenities and having taken he is aged

about 30 years and he has to lead rest of his life with disability

of 33%, it is appropriate to enhance the same to Rs.50,000/-

as against Rs.20,000/-.

14. The Tribunal has rightly awarded an amount of

Rs.25,000/- under the head future medical expenses and

hence it does not require any interference of this Court.

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

Rs.8,43,364/-. As this Court has determined 40% contributory

negligence on the part of the claimant, the claimant is entitled

for compensation of Rs.5,06,018/- as against Rs.3,77,000/-.

Point No.(iii):

16. 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 30.01.2015, passed in M.V.C.No.3/2011, is modified by taking

contributory negligence of 40% on the part of the claimant and granting compensation of Rs.5,06,018/- as against Rs.3,77,000/- with interest at 6% per annum on the enhanced compensation from the date of petition till deposit.