Karnataka High Court

Chandra Naik R K vs Ravi S R on 16 August, 2023

Bench: H T Prasad

                                          -1-
                                                       NC: 2023:KHC:29017
                                                    MFA No. 3543 of 2018
                                                C/W MFA No. 3544 of 2018



                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 16TH DAY OF AUGUST, 2023

                                       BEFORE
                    THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                MISCELLANEOUS FIRST APPEAL NO. 3543 OF 2018(MV)
                                     C/W
                MISCELLANEOUS FIRST APPEAL NO. 3544 OF 2018(MV)

               IN MFA 3543/2018
               BETWEEN:

               CHANDRA NAIK R K
               S/O BHEEMA NAIK
               AGED ABOUT 34 YEARS
               R/AT KEBBEDODDI VILLAGE
               KASABA HOBLI, KANAKAPURA TALUK
               AND ALSO AT NO.114
               GANDHINAGAR, RAMANAGARA - 562 159.          ...APPELLANT


               (BY SRI. SHANTHARAJ K., ADVOCATE)

                 AND:
Digitally signed
by
DHANALAKSHMI 1. RAVI S R
MURTHY              S/O LAKKEGOWDA
Location: High      AGED MAJOR
Court of            R/AT NO. 317, 5TH CROSS, 4TH MAIN
Karnataka           SADASHIVANAGAR, BENGALURU - 560 080.

               2.    RELIANCE GENERAL
                     INSURANCE COMPANY LTD.,
                     REPRESENTED BY ITS MANAGER
                     CENTENARY BUILDING, M.G.ROAD
                     BENGALURU - 560 001                  ...RESPONDENTS

               (BY SRI.ASHOK N PATIL., ADVOCATE FOR R2:
               NOTICE TO R1 IS DISPENSED WITH)
                           -2-
                                       NC: 2023:KHC:29017
                                    MFA No. 3543 of 2018
                                C/W MFA No. 3544 of 2018



     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01/03/2018
PASSED IN MVC NO.685/2014 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE & ADDL. MACT, RAMANAGAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA 3544/2018
BETWEEN:

SEENA NAYAKA
S/O AUNTU GOVINDA NAYAKA
AGED ABOUT 34 YEARS
R/AT KEBBEDODDI VILLAGE
KASABA HOBLI, KANAKAPURA TALUK
AND ALSO AT NO.17, 2ND CROSS
GANDHINAGAR, RAMANAGARA - 562 159.          ...APPELLANT


(BY SRI. SHANTHARAJ K., ADVOCATE)

AND:

1.   RAVI S R
     S/O LAKKEGOWDA
     AGED MAJOR
     R/AT NO. 317, 5TH CROSS, 4TH MAIN
     SADASHIVANAGAR, BENGALURU - 560 080.

2.   RELIANCE GENERAL
     INSURANCE COMPANY LTD.,
     REPRESENTED BY ITS MANAGER
     CENTENARY BUILDING, M.G.ROAD
     BENGALURU - 560 001                ...RESPONDENTS

(BY SRI.ASHOK N PATIL., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01/03/2018
PASSED IN MVC NO.683/2014 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE & ADDL. MACT, RAMANAGAR, PARTLY
                             -3-
                                         NC: 2023:KHC:29017
                                      MFA No. 3543 of 2018
                                  C/W MFA No. 3544 of 2018



ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                       JUDGMENT

These appeals are filed by the claimants under

Section 173(1) of the Motor Vehicles Act, (for short, 'the

Act') being aggrieved by the judgment and award dated

01.03.2018 passed by the Additional Motor Accidents

Claims Tribunal and Addl. Senior Civil Judge, Ramanagara

(for short, 'the Tribunal') in MVC Nos.685/2014 and

683/2014. Since the challenge is to the same judgment,

both the appeals are clubbed together, heard and common

judgment is being passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 10.09.2014 at about 11.30 a.m.,

the claimants were proceeding on a motorcycle bearing

registration No.KA-52/E-8422 near Sabbakere,

Ramanagara-Kanakapura road. At that time, a canter

bearing registration No.KA-02/AE-866 being driven by its

driver at a high speed and in a rash and negligent manner,

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

dashed to the vehicle in which the claimants were

proceeding. As a result of the aforesaid accident, the

claimants sustained grievous injuries and were

hospitalized.

3. The claimants filed petitions under Section 166

of the Act seeking compensation. It was pleaded that they

have spent huge amount towards medical expenses,

conveyance, etc. It was further pleaded that the accident

occurred purely on account of the rash and negligent

driving of the offending vehicle by its driver.

4. On service of notice, the respondent Nos.1 and

2 appeared in MVC No.685/2014 and respondent No.2

appeared in MVC No.683/2014 and filed separate written

statements in which the averments made in the petition

were denied. The age, avocation and income of the

claimants and the medical expenses are denied. It was

pleaded that the petition itself is false and frivolous in the

eye of law. It was further pleaded that the quantum of

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

compensation claimed by the claimants is exorbitant.

Hence, they sought for dismissal of the petitions.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants examined themselves as PW1

and PW3, Dr.Krishan Prasad was examined as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P36. On

behalf of the respondents, one witness was examined as

RW1 and got exhibited one document as Ex.R1. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver and

also due to the negligence of the rider of the motorcycle at

30%, as a result of which, the claimants sustained

injuries. The Tribunal further held that the claimants are

entitled to compensation of Rs.5,64,900/- and Rs.20,000/-

respectively, along with interest at the rate of 7% p.a. and

directed the Insurance Company to deposit 70% of the

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. The learned counsel for the claimants has

contended that the accident occurred due to rash and

negligent driving of the driver of the canter bearing

registration No.KA-02/AE-866. The Tribunal, after

considering the evidence of the parties, has held that the

driver of the canter himself is negligent in causing the

accident and rightly answered issue No.1 in the

affirmative. But, in the operative portion of the order, the

Tribunal has committed an error in holding that the rider

of the motorcycle was negligent to the extent of 30% on

the ground that three persons were going in the

motorcycle. Even though there is no material to prove

that the rider of the motorcycle has contributed to the

accident, since three persons were traveling in the

motorcycle, the Tribunal has erred in giving a finding that

the rider of the motorcycle has contributed 30% to the

accident. In support of his contention, he relied on the

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

judgment of the Apex Court in the case of MOHAMMED

SIDDIQUI vs. NATIONAL INSURANCE COMPANY LIMITED

reported in AIR 2020 SC 520.

Re.quantum in MFA No.3543/2018 arising out

of MVC No.685/2014:

7. The learned counsel appearing for the claimant

has contended that at the time of the accident the

claimant was working as a cook and was earning Rs.700/-

per day. But the Tribunal is not justified in assessing the

monthly income of the claimant as Rs.4,500/- per month.

8. He further contended that at the time of the

accident the claimant was aged about 30 years. Due to the

accidental injury, he was unable to do his day-to-day work

and he cannot continue his avocation as a cook. The

doctor has specifically deposed that there is 75% disability

to upper limb and 20% to lower limb. Due to the

disabilities, there is 100% functional disability. The

Tribunal has failed to assess the functional disability

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

inspite of specific evidence available on record that the

claimant was unable to do his avocation.

9. It is his further contention that in view of the law

laid down by the Hon'ble Apex Court in the case of

'PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA

PRIYA vs. STATE EXPRESS TRANSPORT

CORPORATION LTD. 2020' SCC Online SC 601, the

claimant is entitled for addition of future prospects.

10. The learned counsel further contended that due

to the accident, the claimant has suffered grievous

injuries, he has examined the doctor who has deposed

that the claimant requires Rs.50,000/- for removal of

implants and he requires R.7,000/- to Rs.8,000/- for

application of Vaseline over the skin grafting annually.

The Tribunal has granted only Rs.40,000/- towards 'future

medical expenses'. He further contended that the overall

compensation awarded by the Tribunal is on the lower

side. Hence, he sought for enhancement of the

compensation.

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

Re.quantum in MFA No.3544/2018 arising out

of MVC No.683/2014:

11. The learned counsel appearing for the claimant

has contended that the claimant has suffered grievous

injuries and ha suffered lot of pain during treatment. The

compensation awarded by the Tribunal at Rs.20,000/- is

on the lower side. Hence, he sought for allowing of the

appeal.

12. On the other hand, the learned counsel

appearing for the Insurance Company has contended that

it is not in dispute that the rider of the motorcycle was

traveling along with two pillion riders. Since three persons

were traveling in the motorcycle, which has the capacity of

only two persons, the rider lost balance and dashed

against the offending vehicle. Therefore, he has also

contributed to the accident to the extent of 30%.

Re.quantum in MFA No.3543/2018 arising out

of MVC No.685/2014:

- 10 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

13. The learned counsel appearing for the Insurance

Company has contended that even though the doctor has

deposed that he has suffered 28% disability , there is no

functional disability to affect his avocation since he has not

proved that he is a cook. In the evidence of the doctor he

has deposed that other than the avocation as a cook he

can do other work. Therefore, the Tribunal has rightly not

assessed the functional disability. The physical disability

assessed by the Tribunal at 28% is just and reasonable.

He further contended that since the claimant has failed to

prove his avocation, the Tribunal has rightly assessed the

notional of the claimant as Rs.4,500/- per month.

14. In respect of 'future medical expenses', he

contended that no document has been produced to show

that the claimant requires Rs.50,000/- for removal of

implants and it has not been proved that he requires

Rs.7,000/- to Rs.8,000/- annually towards application of

Vaseline over the skin grafting. Therefore, the Tribunal has

rightly awarded Rs.40,000/- for 'future medical expenses'.

- 11 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

15. It is his further contention that the compensation

awarded by the Tribunal on the other heads is just and

reasonable.

16. Lastly, he contended that in view of the Division

Bench judgment of this Court in the case of MS.JOYEETA

BOSE AND OTHERS vs. VENKATESHAN.V AND

OTHERS (MFA 5896/2018 and connected matters

disposed of on 24.8.2020), the rate of interest awarded

by the Tribunal at 7% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

Re.quantum in MFA No.3544/2018 arising out

of MVC No.683/2014:

17. The learned counsel appearing for the Insurance

Company has contended that the injuries suffered by the

claimant are minor in nature and he has also not

examined the doctor. Considering the wound certificate

the Tribunal has rightly awarded compensation of

Rs.20,000/-.

- 12 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

18. He further contended that in view of the Division

Bench judgment of this Court in the case of MS.JOYEETA

BOSE (supra), the rate of interest awarded by the

Tribunal at 7% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

19. Heard the learned counsel for the parties.

Perused the judgment and award and the original records.

20. It is not in dispute that the claimants have

sustained injuries in the road traffic accident occurred on

10.09.2014 due to rash and negligent driving of the driver

of the canter bearing registration No.KA-52/E-8422. The

Tribunal framed issue No.1 as follows:

"Whether the petitioner proves that he sustained with injuries in an accident occurred on 10.09.2014 at about 11.30 a.m. near Sabbakere, Ramanagara-Kanakapura road, due to rash and negligent driving of driver of vehicle baring No.KA-023/AE-866?"

21. After analyzing the documents produced by the

parties and the evidence available on record the Tribunal

- 13 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

answered issue No.1 in the affirmative and held that the

driver of the canter alone is negligent in causing the

accident. Without there being any materials available on

record and without any discussion, the Tribunal has erred

in holding that since three persons were traveling on the

motorcycle, the rider of the motorcycle contributed to the

accident. The Apex Court in the case of MOHAMMED

SIDDIQUI (supra) has held that the fact that a person

was a pillion rider on a motor cycle along with the driver

and one more person on the pillion, may be a violation of

the law. But such violation by itself, without anything

more, cannot lead to a finding of contributory negligence,

unless it is established that his very act of riding along

with two others, contributed either to the accident or to

the impact of the accident upon the victim. The relevant

portion is extracted below:

"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything

- 14 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim.

There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had

- 15 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted

- 16 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

from PW3 to the effect that 2 persons on the pillion added to the imbalance."

22. In the case on hand, the Tribunal has answered

issue No.1 in the affirmative and held that the driver of

the offending vehicle is negligent in causing the accident.

But in the operative portion erred in holding that the rider

of the motorcycle has contributed 30% to the accident.

The said finding is unsustainable. Hence, I am of the

opinion that the driver of the offending vehicle alone is

negligent in causing the accident. Since the offending

vehicle is covered with a valid insurance policy, Insurance

Company has to indemnify the owner of the offending

vehicle.

Re.quantum in MFA No.3543/2018 arising out

of MVC No.685/2014:

23. The specific case of the claimant is that at the

time of the accident, the claimant was aged about 30

years and he was working as a cook and earning

Rs.700/- per day. PW1 in his evidence has categorically

- 17 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

stated that he was working as a cook. But he has not

produced any documents to prove his income. Therefore,

the notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the year

2014, the notional income has to be taken at Rs.8,500/-

p.m.

24. Due to the accident the claimant has suffered

right forearm fracture, stiffness of the right shoulder and

right elbow and other injuries. In his evidence, he has

categorically stated that he is not able to do his job and

finds difficulty in changing clothes, lifting weights and

unable to wash his face and his right upper limb is

disfigured and his skin graft has lot of itching.

25. Even in the course of cross-examination he has

categorically stated that he has deposed that due to

accidental injury, he cannot do his avocation as a cook but

he can do some light work. Considering the evidence of

the claimant and that the accidental injury will affect the

- 18 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

avocation of the claimant, functional disability has to be

assessed at 45%. In view of the law laid down by the

Hon'ble Apex Court in the case of PAPPU DEO YADAV

(supra) and ERUDHAYA PRIYA (supra), the claimant is

entitled for addition of future prospects.

26. In view of the law laid down by the Hon'ble Apex

Court in the case of NATIONAL INSURANCE CO. LTD. -

v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],

since the claimant was aged about 30 years, 40% of his

income has to be added towards future prospects and the

applicable multiplier is '17'. Hence, the monthly income

of the claimant comes to Rs.11,900/- (Rs.8,500 + 3,400).

Thus, the claimant is entitled to Rs.10,92,420/-

(Rs.11,900x12x17x45%) on account of 'loss of future

income due to disability'.

27. Due to the accident, the claimant has suffered

grievous injuries. He was treated as inpatient for more

than 45 days in the hospital and thereafter, has received

further treatment. He has suffered lot of pain during

- 19 -

NC: 2023:KHC:29017 MFA No. 3543 of 2018 C/W MFA No. 3544 of 2018

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the same, I

am inclined to enhance the compensation awarded by the

Tribunal on the head 'pain and sufferings' from

Rs.20,000/- to Rs.40,000/-, for 'loss of amenities' from

Rs.10,000/ to Rs.30,000/- and 'loss of income during laid-

up period' for a period of three months, i.e., Rs.25,500/-

(Rs.8,500*3). Considering the nature of injuries, the

compensation awarded by the Tribunal under other heads

is just and reasonable.

28. Thus, the claimant is entitled to the following

compensation:

                               As awarded         As awarded
                                 by the             by this
   Compensation under
                                Tribunal             Court
     different Heads
                                       (Rs.)          (Rs.)

 Pain and sufferings                     20,000          40,000

 Medical expenses                      2,18,819       2,18,819

 Food, nourishment,                      10,000          10,000
 conveyance and
 attendant charges
                                 - 20 -
                                                NC: 2023:KHC:29017
                                             MFA No. 3543 of 2018
                                         C/W MFA No. 3544 of 2018




  Loss of income during                     9,000          25,500
  laid up period

  Loss of amenities                        10,000          30,000

  Loss of future income                  2,57,040       10,92,420

  Future medical expenses                  40,000          40,000

                   Total                 5,64,859       14,56,739

29. The claimant is entitled to a total compensation

of Rs.14,56,739/- as against Rs.5,64,859/- awarded by

the Tribunal.

Re.quantum in MFA No.3544/2018 arising out

of MVC No.683/2014:

30. The injuries suffered by the claimant are minor in

nature and he has not examined the doctor. Considering

the same, I am of the opinion that, in addition to the

compensation awarded by the Tribunal, the claimant is

entitled to compensation of Rs.20,000/- along with

interest.

31. In the result, I pass the following order: