Karnataka High Court
G. Shivashankar vs R. Pari on 12 October, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2675/2017 (MV-I)
BETWEEN:
G. SHIVASHANKAR
S/O GAVISIDDAIAH
NOW AGED ABOUT 47 YEARS
R/AT BYRAPPANAPALYA
SOMPURA HOBLI
NELAMANGALA TALUK
NOW R/A KUNIGAL
TUMAKURU DISTRICT. ... APPELLANT
(BY SRI RAGHU R, ADVOCATE)
AND:
1. R. PARI
S/O S.M.RANGASWAMY
MAJOR, R/AT WARD NO.9
CHANDRAPURA ROAD
NEAR PETROL PUMP/BUNK
ANEKAL, BENGALURU-562 106
2. THE MANAGER
NEW INDIA ASSURANCE CO. LTD.,
NAMAKKAL D.O.(721300)
2ND FLOOR, RAM COMPLEX, 29,
PRAMATHI ROAD, NAMAKKAL
TAMILNADU-637 001
REP. BY ITS DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
SHOPPING COMPLEX
2
B.H. ROAD, TUMAKURU-572101. ... RESPONDENTS
(BY SRI O.MAHESH, ADVOCATE FOR R2
VIDE ORDER DATED 31.01.2020
NOTICE TO R1 IS DISPENSED WITH)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.05.2015
PASSED IN MVC NO.239/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT-XV, KUNIGAL, 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 appearing for the appellant-
claimant and the learned counsel appearing for respondent No.2-
Insurance Company.
2. This appeal is filed challenging the judgment and
award dated 22.05.2015 passed in M.V.C.No.239/2012 on the
file of the Senior Civil Judge and MACT-XV at Kunigal ('the
Tribunal' for short).
3. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of the claimant is that
on 15.10.2011 at about 9:30 a.m, an accident was occurred
when the claimant/petitioner was proceeding as pillion rider in
the motorcycle, the bus came and dashed against the
motorcycle, as a result, he has sustained the injuries.
5. The claimant in order to substantiate his case, he
has examined himself as P.W.1 and got marked the documents
as Exs.P1 to P25. On the other hand, the respondent -
Insurance Company has examined one official witness as R.W.1
and got marked the document as Ex.R1.
6. The Tribunal after considering both oral and
documentary evidence placed on record, while answering issue
No.1, answered the same as 'partly affirmative' and came to the
conclusion that the rider of the motorcycle was not having the
Driving License i.e., the only basis for arriving the contributory
negligence. Hence, the present appeal is filed questioning the
contributory negligence.
7. The other contention of the appellant before this
Court is that the Tribunal has not awarded the just and
reasonable compensation. A meager compensation of
Rs.63,116/- was awarded towards 'loss of income during the
period of treatment and bed rest', Rs.45,000/- towards pain and
sufferings and Rs.25,000/- towards food, diet and conveyance.
He was an inpatient for a period of 53 days. Hence, it requires
an interference of this Court.
8. Per contra, the learned counsel appearing for
respondent No.2-Insurance Company would submit that the
Tribunal in detail discussed while answering issue No.1 as 'partly
affirmative', particularly, in paragraph Nos.14 and 15 and
observed that the rider of the motorcycle was not having the
Driving License. Hence, he has contributed for the accident.
The learned counsel also would submit that the just and
reasonable compensation has been awarded on all the heads and
future loss of income is not taken since the claimant is an
employee, working as Assistant Teacher. Hence, it does not
require any interference of this Court.
9. Having heard the arguments of the respective
counsel and on perusal of the grounds urged in the appeal and
the materials available on record, the points that would arise for
consideration of this Court are:
(i) Whether the Tribunal has committed an error
in taking the contributory negligence against
the petitioner, who being the pillion rider?
(ii) Whether the Tribunal has committed an error
in not awarding the just and reasonable
compensation and whether it requires an
interference of this Court?
(iii) What order?
Point No.(i):
10. Having heard the respective counsel and on perusal
of the material available on record and also the grounds urged in
the appeal, it is not in dispute that the two vehicles are involved
in the accident. It is also not in dispute that the Police have
registered a case against the driver of the bus and no charge
sheet has been filed against the rider of the motorcycle. It is
important to note that it is the contention of the Insurance
Company that the rider of the motorcycle was not having any
Driving License. In order to prove the said fact except examining
the official witness - R.W.1, no documents are placed before the
Court to prove whether he was having Driving License or not and
also the rider of the motorcycle has not been summoned and no
charge sheet has been filed against the rider of the motorcycle
invoking Section 3 of the Motor Vehicles Act and the driver of the
Bus has not been examined before the Tribunal. When such
being the case, the right person to speak with regard to the
contributory negligence is the driver of the offending vehicle i.e.,
the driver of the bus. When he has not been examined, only an
official witness has been examined and he is not an eyewitness
to the accident. In the absence of cogent evidence before the
Tribunal with regard to the contributory negligence, the Tribunal
ought not to have accepted the contention of the Insurance
Company. Apart from that, the petitioner is only a pillion rider.
When such being the case, invoking contributory negligence to
the extent of 50% is erroneous and it requires interference of
this Court. Hence, I answer point No.(i) as 'affirmative'.
Point No.(ii):
11. With regard to the quantum of compensation is
concerned, the claimant has sustained the fracture of femur and
it was an accident of the year 2011. The Tribunal has awarded
compensation of Rs.45,000/- on the head of pain and sufferings.
Hence, I do not find any error committed by the Tribunal in
awarding the compensation on the head of pain and sufferings.
However, it is contention of the counsel for the appellant that he
was an inpatient for a period of 53 days and 53 days loss of
income has been considered taking note of the earned leave
applied from 02.11.2011 to 29.02.2012 and awarded an amount
of Rs.63,116/-. Hence, it does not require any interference.
Apart from that, when he was an inpatient, Rs.13,500/- had
awarded towards attendant charges and Rs.25,000/- towards
food, diet and conveyance, in all, it comes to Rs.38,500/-. He
was an inpatient for a period of 53 days. Having considered the
accident of the year 2011, I do not find any force in the
contention of the appellant's counsel that the same are meager.
However, the Tribunal failed to take note of the nature of injuries
sustained by the claimant and the claimant is aged about 44
years and having considered the nature of injury i.e., fracture of
femur and he was an inpatient for a period of 53 days prolonged
treatment, though he has not examined the Doctor, the Tribunal
ought to have considered the loss of amenities since the
claimant has to lead rest of his life with the said disability.
Hence, it is appropriate to enhance the compensation on the
head of loss of amenities, discomfort, unhappiness etc., to
Rs.50,000/- as against Rs.20,000/- awarded by the Tribunal.
Point No.(iii):
12. 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 22.05.2015 passed in
M.V.C.No.239/2012, is hereby set aside in
respect of contributory negligence and
awarded additional compensation of
Rs.30,000/- with interest at 6% per annum
from the date of petition till realization.
(iii) The respondent No.2/Insurance Company is
directed to deposit the enhanced
compensation amount within six weeks from
today.
(iv) The Registry is directed to transmit the
records to the concerned Tribunal,
forthwith.
Sd/-
JUDGE
cp*
