Karnataka High Court
Sri. A Suman vs M/S. R K Blue Metals on 14 December, 2023
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MFA No. 4257 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 4257 OF 2019 (MV-I)
BETWEEN:
SRI A SUMAN,
S/O ASWATHAPPA,
NOW AGED ABOUT 47 YEARS,
R/AT: MADABAHALLI VILLAGE,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT.
PRESENTLY RESIDING AT
NO.136, MASJID ROAD,
K.R.PURAM, BENGALURU - 36.
...APPELLANT
(BY SRI GOPAL KRISHNA N & SRI JAGADISH G KUMBAR,
ADVOCATES)
AND:
Digitally 1 . M/S. R K BLUE METALS,
signed by T S
NAGARATHNA NO.50, SRI RADHALAKSHMI NILAYA,
Location: High DEVASANDRA MAIN ROAD,
Court of DEVASANDRA, K.R.PURAM,
Karnataka
BANGALORE - 560 036
REP:BY ITS PROPRIETOR,
SRI RAVI KUMAR,
MAJOR IN AGE.
2 . THE CHOLAMANDALAM.M.S.,
GENERAL INSURANCE COMPANY LTD.,
UNIT NO.4, 9TH FLOOR,
GOLDEN HEIGHTS COMPLEX,
59TH 'C' CROSS, INDUSTRIAL SUBURB
RAJAJINAGAR, 4TH 'M' BLOCK,
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MFA No. 4257 of 2019
BENGALURU - 560 010
REP:BY ITS MANAGER.
...RESPONDENTS
(By SRI MURALIDHAR NEGAVAR, ADVOCATE FOR R2;
R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.8.18 PASSED IN MVC NO.
2464/17 ON THE FILE OF THE XXI ADDITIONAL SCJ & XIX
ACMM, MEMBER, MACT, BENGALURU [SCCH-23], PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
KALABURGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant-petitioner is directed
against the judgment and award dated 31-8-2018 passed
in MVC No.2464/2017 by the learned XXI Additional Small
Causes Judge and XIX ACMM and Member MACT,
Bengaluru, SCCH 23.
2. The petitioner had filed the claim petition before
the Tribunal claiming compensation on account of the
injuries sustained by him in the road traffic accident
contending that, on 21.2.2017 at about 11.30 a.m. near
IB Circle Hosakote-Bengaluru Road, the driver of the
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Tipper Lorry bearing No.KA.53.B.8819 belonging to
respondent No.1 insured with respondent No.2 drove the
same with high speed, over took the motor cycle, and all
of a sudden steered lorry to the left side of the road,
suddenly stopped the lorry without giving any signal and
dashed against the motor cycle of the petitioner and as a
result, he was knocked down and sustained grievous
injuries. Immediately, petitioner was taken to Vikram
Hospital, Bengaluru, after first aid treatment at MVJ
Hospital, Hosakote. The police have registered a case
against the driver of the offending lorry and filed the
chargesheet. It was further contended that, petitioner
was aged 25 years and earning Rs.20,000/- from his
agricultural work and due to injuries sustained in the
accident, he is unable to carryout his agricultural work and
sustained loss of earnings. Therefore, prayed to award
adequate compensation.
3. On issuance of notice, respondent Nos. 1 and 2
have appeared through their counsel and filed the
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statements of objection. They denied the manner of the
accident, age, occupation, income injuries, medical
expenses and contended that the compensation claimed
by the petitioner is excessive, arbitrary and exorbitant.
They have disputed their liability contending that the
accident occurred due to rash and negligent riding by the
petitioner but not on account of the negligence on the part
of the driver of the lorry. It was further contended that
the petitioner was not having driving licence and not
wearing helmet and dashed on the rear side of the on
going lorry and inspite of that, the lorry was falsely
implicated for claiming compensation.
4. Respondent No.1, owner of the lorry contended
that as on the date of accident, the lorry was insured and
policy was in force and if there is any liability, respondent
No.2-Insurance Company has to indemnify the owner.
Therefore, they prayed to dismiss the claim petition.
5. On the basis of the above pleadings, the Tribunal
framed appropriate issues for its consideration and
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petitioner examined himself as PW1 and examined two
witnesses as PWs 2 and 3 and marked Exs.P1 to P17. The
official of respondent No.2-Insurance Company was
examined as RW1 and no documents were marked.
6. The Tribunal after hearing the learned counsel for
both the sides and considering the oral and documentary
evidence available on record, has determined the
compensation of Rs.10,36,685/- under the following
headings:
Pain and sufferings including mental Rs. 75,000/-
agony
Loss of his future earnings Rs. 5,50,800/-
Medical expenses Rs. 2,35,885/-
Loss of amenities of life Rs. 50,000/-
Marriage prospects Rs. 50,000/-
Convenience, nourishment and nutritious Rs. 50,000/-
food
Loss of earnings of his family member Rs. 25,000/-
when he was hospitalized
Total Rs.10,36,685/-
7. The Tribunal after deducting 50% towards the
contributory negligence, has awarded a sum of
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Rs.5,18,343/- and directed the Insurance Company to
deposit the same.
8. Being aggrieved by the said judgment and award,
the petitioner has approached this Court in appeal.
9. On issuance of notice, respondent No.2-Insurance
Company has appeared through its counsel. Despite
service of notice, respondent No.1 remained
unrepresented. The Tribunal records have been secured
and heard the arguments on both the sides.
10. The learned counsel appearing for the
appellant/petitioner contends that the petitioner has lost
one eye and he was an agriculturist aged about 28 years
and therefore, there is severe disability to him. He
contends that the loss of an eye to an agriculturist, in fact,
results in complete loss of his earning capacity. According
to him, the Tribunal should have held that the functional
disability of the petitioner is reduced atleast to the extent
of 40%. Therefore, he contends that assessment of the
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functional disability of the petitioner is not correct and
proper.
11. The second contention of the learned counsel
appearing for the appellant/petitioner is that, the
contributory negligence of the petitioner is stated to be
50% which is erroneous. It is contended that there was no
such contributory negligence on the part of the petitioner
as he was riding the two wheeler behind the lorry and the
lorry which had come to an abrupt halt due to a road
hump at its front. Therefore, he contends that fastening
of the contributory negligence to the extent of 50% on the
petitioner is also not correct and proper. Hence, he has
sought for reassessment of the compensation and re-
appreciation of the evidence so far as the contributory
negligence is concerned.
12. Per contra, the learned counsel appearing for
respondent No.2-Insurance Company contended that there
was negligence on the part of the petitioner also as he had
not kept a safe distance between his motor cycle and the
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lorry. He contends that the Tribunal has rightly and
properly assessed the contributory negligence of the
petitioner at 50% and no re-appreciation is required.
13. Sofar as the disability is concerned, the learned
counsel for the Insurance Company submits that loss of an
eye cannot be said to be a functional disability to the
petitioner. He was an agriculturist, but not in any such
avocation wherein the use of an eye was of dominant
nature. Therefore, he contends that the assessment of
the compensation by the Tribunal is also proper and
correct and no enhancement is required.
14. The records reveal that even though the
petitioner contends in his petition that the lorry had over
took him and the lorry driver steered the same to the left
side resulting in a hit to the motor cycle of the petitioner,
the police papers are otherwise. The complaint filed by
one A.N.Madhukumar shows that he is a relative of the
petitioner and he was informed that the tipper lorry was
driven by its driver in a high speed and near road hump,
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he abruptly applied the brakes without any signal and
therefore, the petitioner dashed to the rear of the lorry
resulting in the accident. It is evident that the chargesheet
filed by the police against the driver of the tipper lorry
shows that the lorry driver, seeing the hump had steered
the vehicle to the left and had applied the brakes.
Therefore, the police found the entire negligence to be on
the part of the tipper lorry driver. Obviously, the
chargesheet was not filed against the petitioner for any
negligence on his part. In order to ascertain whether the
lorry driver had steered the same to left side abruptly on
seeing the road hump?, it is necessary for the petitioner
to produce the spot sketch. No such spot sketch is
available on record. The spot mahazar does not depict that
the lorry driver had abruptly steered the same to the left
side. It is evident that the averments in the petition are
not in consonance with the police papers and also the
complaint. A different version is stated in the petition.
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15. The fact that there was an accident involving the
petitioner's motor cycle and the lorry owned by
respondent No.1 and insured by respondent No.2 is not in
dispute. But on the conspectus of the above circumstances
and also the records available, it is clear that the petitioner
himself had dashed against the rear of the lorry when lorry
driver had applied the brake. It is obvious that the
petitioner has not maintained safe distance from the lorry
and the police papers do not show that the lorry driver has
over took the motors cycle. In that view of the matter, the
fastening of the contributory negligence on the part of the
petitioner is liable to be upheld.
16. The Tribunal holds that the petitioner himself had
dashed against the rear of the lorry and therefore, it
abruptly comes to the conclusion that the petitioner had
also contributed to the extent of 50%. It is pertinent to
note that the degree of caution to be exercised by the
drivers of heavy goods vehicle is more, whereas the
smaller vehicle is less. In the case on hand, when the lorry
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driver was trying to control his vehicle on seeing the road
hump, he should have anticipated that there are vehicles
which are coming from behind. Therefore, the degree of
caution and care that should have been exercised by the
lorry driver is on the higher side. Under these
circumstances, the assessment of the contributory
negligence by the Tribunal appears to be improper. In
the considered opinion of this Court, it would be proper to
hold that the petitioner had contributed 30% towards the
negligence and remaining 70% of negligence was on the
part of the lorry driver.
17. The second contention raised before this Court is
in respect of the functional disability of the petitioner. The
medical records produced by the petitioner in the form of
wound certificate at Ex.P6, discharge summary at Ex.P7
and P8 and other Lab reports disclose that the petitioner
had sustained "frontal orbital fractures with underlying
contusion and SAH; sub capsular liver haematoma,
around the liver, laceration of liver lobes and optic nerve
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injury with loss of vision of right eye and total loss of
vision in the right eye "; these medical reports coupled
with the evidence of PW2 clearly establish that there is
loss of vision in the right eye. According to him, the
disability of the vision is 30%. PW3 happens to be an
Official of Vikram Hospital, but only produced the
treatment and other records of the petitioner. His evidence
clearly shows that the petitioner had lost one eye and
therefore, there is 30% disability. No other Orthopedic or
physical disability is visible from the records. Evidently,
the petitioner contends that he was an agriculturist and as
per the medical reports, he was aged about 26 years. He
was inpatient from 22-2-2017 to 26-2-2017 at Vikram
hospital. Thereafter, again from 1-3-2017 to 4-3-2017 he
was inpatient.
18. It is evident that the loss of an eye definitely is a
physical disability, but assessment to what extent it
translates into functional disability is to be made by the
Court. Obviously petitioner is a bachelor and he was an
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agriculturist by avocation. It is relevant to note that the
disability as stated by PW2 to the extent of 30% can safely
be taken as the functional disability also. The petitioner
can very well carry on his avocation of agriculture with
some difficulty and therefore, the disability of 30% is
proper and correct. Therefore, no fault can be found with
the finding of the Tribunal.
19. The Tribunal has awarded the compensation of
Rs.75,000/- under the head of 'pain and sufferings'; a
sum of Rs.5,50,800/- under the head of 'loss of future
earnings' by holding his notional income to be Rs.9,000/-
per month and by adopting '17' multiplier. The
compensation under these heads are proper and correct.
20. The Tribunal has awarded a sum of Rs.50,000/-
under the head of "convenience, nourishment and
nutritious food" which is just and proper and there is no
need for enhancement.
21. The Tribunal has awarded a sum of Rs.50,000/-
under the head of 'loss of amenities in life'. Obviously, the
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petitioner who is aged about 26 years has suffered loss of
an eye which would carry through out his rest of life.
Therefore, the compensation under this head needs to be
enhanced to Rs.1,00,000/-.
22. The Tribunal has awarded a sum of Rs.50,000/-
under the head of 'loss of marriage prospects'. In the
considered opinion of this Court, it would be proper to
award Rs.75,000/- under this head.
23. The Tribunal, in addition to the above amount
has also awarded a sum of Rs.25,000/- towards 'loss of
income of his family members'. Though in normal
circumstances, it would not be accepted, in view of the
fact the petitioner has lost an eye, it can be held that the
family members assisted the petitioner in rehabilitation
with impaired vision.
24. The medical expenses have been awarded as per
the actual bills produced. Hence, it is just and proper.
Therefore, the petitioner is entitled for a sum of
Rs.75,000/- by way of enhancement under the heads of
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'loss of amenities in life' and 'marriage prospects'. Thus,
the petitioner is entitled for a total sum of
Rs.11,11,685/-.
25. In view of the fact that this Court has held that
the contributory negligence of the petitioner is to the
extent of 30%, after deducting 30% (Rs.3,33,505/-)
towards contributory negligence, the petitioner is entitled
for a compensation of Rs.7,78,180/- (Rs.11,11,685/- -
Rs.3,33,505/-). Respondent No.2 being the insurer of the
vehicle is liable to pay the same. In the result, the appeal
filed by the petitioner deserves to be allowed in part.
Hence, the following:
ORDER
(i) The appeal filed by the petitioner is
allowed in part.
(ii) The petitioner is entitled for a sum of
Rs.7,78,180/- (after deducting 30% of
Rs.11,11,685/- towards contributory negligence)
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together with interest at 6% p.a. from the date
of the petition till its realization. The impugned
judgment is modified accordingly.
(iii) Respondent No.2-Insurance Company
is directed to deposit the compensation amount
within four weeks from the date of receipt of the
copy of this order.
(iv) The other terms and conditions of the
order of the Tribunal remain unaltered.
Sd/-
JUDGE
tsn*
