Karnataka High Court

K. Prabhu vs Ravi @ Ravi Naika on 13 December, 2023

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                                                     NC: 2023:KHC:45383
                                                   MFA No. 3433 of 2018




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 13TH DAY OF DECEMBER, 2023

                                       BEFORE
                   THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
               MISCELLANEOUS FIRST APPEAL NO. 3433 OF 2018 (MV-I)
              BETWEEN:

              K. PRABHU,
              S/O LATE KANNAN,
              AGED ABOUT 46 YEARS,
              AGRICULTURIST,
              RESIDIGN AT HOSUDI,
              SHIMOGA TALUK - 577 222.
                                                           ...APPELLANT
              (BY SRI. P. MAHADEVA SWAMY, ADVOCATE)

              AND:

              1.    RAVI @ RAVI NAIKA,
                    S/O LAXMAN NAIKA,
                    DRIVER, AGED ABOUT 31 YEARS,
Digitally           RESIDING AT 3RD CROSS,
signed by JAI
JYOTHI J            SHARAVATHI NAGARA,
                    SHIMOGA - 577 222.
Location:
HIGH
COURT OF      2.    SMT. DODDA GIRIJA BAI,
KARNATAKA           D/O SRI. KRISHNA NAIKA,
                    AGED ABOUT 65 YEARS,
                    OWNER OF TRACTOR VEHICLE
                    BEARING NO.KA-14 PA-4202,
                    RESIDING AT HOLEBENAVALLI TANDA - 577 222.

              3.    THE MANAGER,
                    THE ROYAL SUNDARAM INSURANCE
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                                         NC: 2023:KHC:45383
                                       MFA No. 3433 of 2018




    COMPANY LTD., SHIMOGA - 577 222,
    BEARING POLICY NO.VOC 0255134000100.
                                       ...RESPONDENTS
(BY SRI. H.S. LINGARAJ, ADVOCATE FOR R3;
     R2 - SERVED AND UNREPRESENTED;
     R1 - VIDE ORDER DATED 04.10.23 NOTICE TO R1 IS
     DISPENSED WITH)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.10.2017 PASSED IN MVC
NO.107/2015 ON THE FILE OF        THE II ADDITIONAL SENIOR
CIVIL JUDGE AND AMACT-8, SHIVAMOGGA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR JUDGMENT, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This is an appeal filed by the claimant aggrieved by

the award passed in MVC No.107/2015 dated 30.10.2017

on the file of II Addl. Senior Civil Judge and Additional

Motor Accident Claim Tribunal - 8 at Shivamogga. The

claim petition was filed seeking compensation of an

amount of Rs.26,45,000/- for the injuries sustained by the

claimant in the road accident.

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2. It is the case of the claimant that on 28.10.2014

at about 6:00 p.m., when the claimant after coming from

Shivamogga, when he was standing in front of his house

gate, expecting his wife to open the gate, the 1st

respondent being the driver of the tractor came from

Chikkamatti village side and dashed to the claimant's bike,

which was parked in front of the gate and the claimant

stood by the side of the bike and due to this accident, the

front tyre of the tractor ran over the right foot of the

petitioner. Because of the rash and negligent driving of

the driver of the tractor, he had sustained injuries. As per

the wound certificate, the claimant had sustained Type II

open commuted fracture distal 1/3rd shaft right femur,

right anterior cruciate ligament and medial retinacutum

tear, lacerated wound measuring 2x1x1 cm over the

lateral aspect of right distal thigh and the injuries are

grievous in nature. According to the doctor, he has also

sustained 14% disability to the whole body and there is

shortening of right lower limb of 1.5 cm.

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3. It is the case of the Insurance Company that the

claimant is at fault, he has parked the vehicle on the road

and has contributed to the accident. The Court below had

granted an amount of Rs.50,000/- under the head of pain

and suffering. Towards medical expenses an amount of

Rs.1,20,005/- was granted. Though it is stated that the

claimant was earning an amount of Rs.15,000/- per

month, as there was no evidence, considering the income

of the claimant at Rs.6,000/- per month, the Court below

had granted an amount of Rs.12,000/- towards loss of

income during the laid up period. Towards conveyance,

attendant charges and food and nourishment an amount of

Rs.30,000/- was granted. The doctor had opined that the

claimant had sustained 14% disability to the limb. The

Court below had taken 5% as the disability and the income

of the claimant at Rs.6,000/- per month and granted an

amount of Rs.50,400/- under the head of future loss of

income. Altogether, compensation of an amount of

Rs.2,62,405/- was granted by the Court below.


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                  Heads                 Compensation
                                          Awarded
1.   Pain and sufferings              Rs.         50,000/-
2.   Medical expenses                 Rs.       1,20,005/-
     Loss of income during the laid
3.                                    Rs.        12,000/-
     up period
4.   Conveyance, attendant            Rs.        30,000/-
     charges and food and
     nourishment
5.   Future loss of income            Rs.        50,400/-

     TOTAL                            Rs.       2,62,405/-

4. Learned counsel appearing for the claimant

submits that the Court below had granted very meager

compensation of an amount of Rs.2,62,000/-. Under the

head of pain and suffering, granting an amount of

Rs.50,000/- was on the lower side. He submits that when

it is the case of the claimant that he was earning an

amount of Rs.15,000/- per month, the Court below had

taken the income at Rs.6,000/- and the accident had

taken place in the year 2014. It is submitted that the

doctor had deposed that there is 14% disability to the

right lower limb. He submits that as per the doctor, there

is shortening of limb of 1.5 cm. He submits that in every

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case of disability to the limb, 1/3rd cannot be deducted.

He submits that the Court has to look at the impact of the

said disability on the claimant and taking the disability at

5% is on the lower side. He submits that no compensation

was granted under the head of loss of amenities. Learned

counsel submits that when it comes to the contributory

negligence, the claimant had parked the vehicle in front of

his house and he was standing near the vehicle and the

driver of the tractor drove the same in a rash and

negligent manner and hit the vehicle of the claimant and

the front tyre of the tractor ran over the right foot of the

claimant.

5. The Court below considering the HMR report, that

he has consumed alcohol. Further, the accident had taken

place at a distant of 8 feet from the house of the claimant

and the claimant had parked the vehicle where the road is

meant for plying the vehicle. When there is a kacha road

by the side of the road, he was supposed to park the

vehicle on the place meant for it. Instead of that he

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parked the vehicle on the road and he contributed to the

accident and apportioned the contributory negligence at

20% on the claimant and 80% on the driver of the

offending vehicle.

6. Learned counsel appearing for the Insurance

Company submits that as far as the contributory

negligence is concerned, both the spot panchanama and

the rough sketch shows that there is negligence on the

part of the claimant. He submits that when there is a

kacha road available, he ought not to have parked the

vehicle on the tar road which led to the accident and

further, he was in an intoxicated state which also

contributed to the accident. The Court below had rightly

apportioned the contributory negligence at 20% on the

claimant and 80% on the driver of the tractor. The Court

below had rightly taken the disability at 5%. According to

the doctor, the disability to the lower limb is 14% and

1/3rd has to be considered. He submits that under all

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other heads, the compensation that was awarded by the

Tribunal was just and reasonable.

7. Having heard the learned counsel on either side,

perused the entire material on record. In this case, the

claimant had sustained open fracture of the right femur

and he was admitted to the hospital on 29.10.2014 to

08.11.2014. During this period, he underwent wound

debridgement, interlocking nailing of right femur and he

was discharged with advice of crutch walk and reviewed on

22.12.2014 and on 07.09.2016, the doctor had found that

there is shortening of light lower limb 1.5 cm, post

traumatic stiffness of right knee and radiological

assessment fracture right femur union complete implant

insitu and in the opinion of the doctor, he has permanent

disability of 14% of right lower limb locomotor functions

and he requires a future operation for removal of implants

which would cost approximately Rs.30,000/-.

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8. The Court below had considered the disability at

5%. This Court is not able to appreciate the said finding

of the Court below. When there is shortening of the limb

by 1.5 cm, it would have major impact on his life. It is not

that in every case, the disability to the lower limb has to

be calculated at 1/3rd. In these circumstances, this Court

is inclined to take 10% as the disability. Then coming to

the income, the claimant was earning an amount of

Rs.15,000/- per month. As there was no evidence, the

Court below had taken the income at Rs.6,000/-. As this

is an accident of the year 2014, this Court is inclined to

taken an amount of Rs.8,500/- as the income. Hence,

loss of future income would come to

Rs.8,500x12x14x10/100 = Rs.1,42,800/-.

9. Under the head of pain and suffering, the Court

below had rightly granted an amount of Rs.50,000/- and

towards medical expenses an amount of Rs.1,20,005/-

and no interference is called for. Then coming to the loss

of income during the laid up period, considering the

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injuries sustained by the claimant, it would take at least

three months' time to get back to work. Hence, this Court

is inclined to grant an amount of Rs.8,500x3 =

Rs.25,500/- towards loss of income during the laid

up period. Towards conveyance, attendant charges and

food, the Court below had granted an amount of

Rs.30,000/- which is a reasonable compensation and no

interference is called for. Towards loss of amenities no

amount was granted. Considering the shortening of leg,

disability and the injuries sustained by the claimant, this

Court is inclined to grant an amount of Rs.40,000/-

towards loss of amenities. The doctor had given the

evidence that the implants are inside and for removing the

same it requires an amount of Rs.30,000/-. Considering

this, this Court is inclined to grant an amount of

Rs.15,000/- towards future operation.

10. In the light of the law laid down by the Hon'ble

Supreme Court in the case of V.MEKALA vs. M.

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MALATHI AND ANOTHER1, the claimant is entitled for an

amount of Rs.10,000/- towards legal expenses.

Altogether, the claimant is entitled for an amount of

Rs.4,33,305/-.

11. The claimant is therefore, entitled to the

compensation under the following heads:

                          Heads                        Compensation
                                                         Awarded
1.      Pain and Sufferings                    : Rs.           50,000/-
2.      Medical expenses                       : Rs.         1,20,005/-
        Loss of income during the laid
3.                                             : Rs.           25,500/-
        up period
4.      Conveyance, attendant                  : Rs.           30,000/-
        charges and food and
        nourishment
5.      Future operation                       : Rs.           15,000/-

6.      Loss of amenities                      : Rs.           40,000/-
7.      Legal Expenses                         : Rs.           10,000/-

        TOTAL                                  : Rs.
                                                             4,33,305/-





    (2014) 11 SCC 178
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12. Coming to the aspect of contributory negligence,

there is no dispute about the fact at the time of accident.

The claimant was standing on the side of the road but he

had parked the vehicle on the tar road instead of a mud

road. The driver of the offending vehicle came and hit the

bike and the front tyre of the tractor ran over the right

foot of the claimant and he had sustained the injuries, as

per the HMR report, he had consumed alcohol. In this

particular fact where he was standing on the road and it is

nobody's case that he had consumed alcohol and it led to

the accident. In these circumstances, no doubt there is

negligence on the part of the claimant. But it cannot be