Karnataka High Court
Sri Venkatesh vs Sri F M Asfaq on 12 December, 2023
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NC: 2023:KHC:45593
MFA No. 3292 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 3292 OF 2019 (MV-I)
BETWEEN:
SRI VENKATESH
S/O RAMA
AGED ABOUT 57 YEARS,
R/AT BEACH ROAD,
GOPADI VILALGE,
KUNDAPURA TALUK,
UDUPI DISTRICT.
...APPELLANT
(BY SRI. K PRASANNA SHETTY., ADVOCATE)
AND:
1. SRI F M ASFAQ
S/O .F.M. UMMAR,
AGED ABOUT 42 YEARS,
R/AT.NEAR URDU SCHOOL,
Digitally HUDE, MALPE, PADUTHONSE VILLAGE,
signed by JAI UDUPI TALUK,
JYOTHI J UDUPI DISTRICT.-572 101
Location:
HIGH COURT
OF 2. THE UNITED INDIA INSURANCE CO. LTD.,
KARNATAKA REP.BY ITS BRANCH MANAGER,
KUNDAPURA BRANCH, S.L.N. COMPLEX,
N.H.66, VODERHOBLI,
KUNDAPURA.- 576 201
...RESPONDENTS
(NOTICE TO R-1 IS HELD SUFFICIENT V.O.D 06.11.2023;
SRI.C.SHANKAR REDDY C., ADVOCATE FOR R-2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.03.2018 PASSED IN MVC
-2-
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MFA No. 3292 of 2019
NO.321/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KUNDAPURA AND MEMBER, ADDITIONAL MACT, KUNDAPURA,
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC No.321/2016,
dated 31.03.2018, by the Senior Civil Judge and Additional
MACT, Kundapura, the claimant is before this court
seeking enhancement of the compensation, as well as
questioning the contributory negligence fixed on the
claimant at 30% and 70% on the driver of the offending
vehicle.
2. The claim petition is filed seeking compensation
of an amount of Rs.14,35,000/-. It is the case of the
claimant that on 15.10.2016, at about 2.30 p.m., the
claimant was standing on the mud road portion on the left
side, at that time a car came from Kundapura side towards
Udupi side, the driver of the car drove the same in a rash
and negligent manner and drove the car to extreme left
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side to the mud portion and dashed against the claimant.
As a result of the accident, the claimant sustained injuries.
According to the claimant, he was working as a Coolie and
was earning an amount of Rs.18,000/- p.m.
3. The doctor had opined that the claimant had
sustained 25% disability to the whole-body and 39%
disability to the right upper limb. The court below had
taken 25% disability and the income at Rs.8,000/- p.m.,
and had awarded compensation under various heads as
follows:
Heads Compensation
Awarded
1. Future Loss of Income : Rs. 1,20,000/-
2. Pain and Sufferings : Rs. 50,000/-
3. Hospital and Medical Expenses : Rs. 40,900/-
4. Loss of Income during laid up period : Rs. 36,000/-
5. Loss of Amenities : Rs. 50,000/-
6. Food, Nourishment, Attendant : Rs. 20,000/-
Charges & Transportation
7. Future Medical Treatment : Rs. 30,000/-
TOTAL : Rs. 3,46,900/-
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4. Learned counsel appearing for the appellant-
claimant submits that the court below had taken income at
Rs.8,000/- per month which is on the lower side.
According to the claimant he was earning an amount of
Rs.18,000/- p.m. It is further submitted that under all the
heads the amounts that were granted were not just and
reasonable. He submits that when it comes to the
evidence it has been stated by the claimant that when he
had reached the end of the road at that time the vehicle
came in a rash and negligent manner and dashed to the
claimant and he sustained the injuries. It is submitted that
there is variation between the claimants cross-examination
and the chief affidavit. It is only because of the confusion
regarding age of the claimant and the court below ought
not to have given more importance to that.
5. Learned counsel appearing for the insurance
company submits that the court below had rightly fixed
the contributory negligence and as there is no evidence
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has rightly taken the income at Rs.8,000/- p.m., and no
grounds are made out to interfere with the judgment
passed by the court below.
6. Having heard the learned counsel on either
side, perused the entire material on record.
7. Under the head of pain and sufferings, medical
expenses, loss of amenities, food nourishment,
attendant charges and future medical expenses, the
court below had granted reasonable compensation basing
on the evidence and no interference is called for. When it
comes to the income, the accident is of the year 2016 as
per the chart prepared by the Karnataka Legal Services
Authorities this Court is taking the income at Rs.9,500/-
p.m., and the claimant is entitled for an amount of
Rs.1,42,500/- (9,500 x 12 x 5 x 25%) towards loss of
future income due to disability. Coming to the loss of
income during laid up period, considering injuries the
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laid up period is taken as six months, the claimant is
entitled for an amount of Rs.57,000/- (Rs.9,500 x 6).
8. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER1, the claimant is entitled for an
amount of Rs.10,000/- towards Legal Expenses.
9. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Future Loss of Income : Rs. 1,42,500/-
2. Pain and Sufferings : Rs. 50,000/-
3. Hospital and Medical Expenses : Rs. 40,900/-
4. Loss of Income during laid up : Rs. 57,000/-
period
5. Loss of Amenities : Rs. 50,000/-
6. Food, Nourishment, Attendant : Rs. 20,000/-
Charges & Transportation
7. Future Medical Treatment : Rs. 30,000/-
8. Legal Expenses : Rs. 10,000/-
TOTAL : Rs. 4,00,400/-
(2014) 11 SCC 178
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11. Now coming to the aspect of the contributory
negligence. No doubt the claimant was crossing the road
where there was no pedestrian crossing. As per the claim
petition it is stated that the claimant was walking on the
mud portion of the road and the offending vehicle had
come and dashed against him. In the cross-examination
he has given altogether a different version but the fact
remains is as per the sketch the claimant had almost
reached the end of the road and at that time the accident
had taken place. Considering these aspects this Court is
apportioning the contributory negligence at 20% on the
claimant 80% on the driver of the offending vehicle. Out of
the total compensation amount of Rs.4,00,400/-, 80%
amount would be Rs.3,20,320/- which the insurance
company is liable to pay. This Court has condoned the
delay of 271 days by an order dated 06.11.2023 on a
condition that the claimant will not be entitled for the
interest for the said period.
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12. Accordingly, the appeal is partly allowed,
enhancing the compensation amount from Rs.3,46,900/-
to Rs.4,00,400/-. As the contributory negligence is
apportioned at 80% on the driver of the offending vehicle
and 20% on the claimant, insurance company is liable to
pay Rs.3,20,320/-.
i) The enhanced amount shall carry interest at 6%
p.a., from the date of petition till the date of
realization, excluding the interest for the
delayed period of 271 days.
ii) Amount granted under the head 'future medical
expenses' shall not carry interest.
iii) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment. On such deposit, the claimant is
entitled to withdraw the entire amount without
furnishing any security.
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iv) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
v) No costs.
Pending miscellaneous petitions, if any, shall stand closed.
SD/-
JUDGE
JJ
