Karnataka High Court
Dinesh N vs Sri. Nanda Kumar V on 19 December, 2023
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MFA No. 93 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 93 OF 2017 (MV-I)
BETWEEN:
DINESH N,
AGED ABOUT 37 YEARS,
S/O NAGARAJU K,
R/AT 95, 3RD CROSS ROAD,
KAVERI LAYOUT, G.M. PALYA,
BENGALURU - 560 075.
DUE TO HEAD INJURY AND MULTIPLE ACCIDENTAL
INJURIES, THE PETITIONER IS NOT IN A POSITION
TO UNDERSTAND REPRESENTE BY
HIS WIFE/ NATURAL GUARDIAN/NEXT FRIEND.
SMT. SOWMYA DINESH,
W/O. DINESH N,
AGED ABOUT 33 YEARS,
R/AT 95, 3RD CROSS ROAD,
Digitally
signed by JAI KAVERI LAYOUT, G M PALYA,
JYOTHI J
BENGALURU - 560 075.
Location:
HIGH COURT ...APPELLANT
OF
KARNATAKA (BY SRI. GIRISH, ADVOCATE)
AND:
1. SRI. NANDA KUMAR V,
MAJOR, S/O. VASUDEVA MUDALIAR,
R/AT 10-975, GOKULAM STREET,
CHITTOR, ANDHRA PRADESH.
2. THE BRANCH MANAGER,
SRIRAM GENERAL INSURANCE CO. LTD.,
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MFA No. 93 of 2017
NO. 05, MONARK CHAMBERS,
INFANTRY ROAD, BENGALURU - 560 001.
3. SMT. MITHUNA, MAJOR,
W/O. C J BHANUPRAKASH,
NO. 688/1, GROUND FLOOR,
MASZID ROAD, KODIHALLI,
BENGALURU - 560 038.
4. THE BRANCH MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
NO. 41, II FLOOR, CRISTU COMPLEX,
LAVELLE ROAD, BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. B PRADEEP, ADVOCATE FOR R2;
SRI. B.C. SHIVANNA GOWDA, ADVOCATE FOR R4;
R1 AND R3 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.06.2016 PASSED IN MVC
NO.6908/2012 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AND MACT, COURT OF SMALL CAUSES,
BENGALURU (SCCH-18), 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
Aggrieved by the award passed in
M.V.C.No.6908/2012 dated 20.06.2016 by the III Addl.
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Senior Civil Judge and Motor Accident Claims Tribunal,
Bengaluru (SCCH-18), the present appeal is filed by the
claimants seeking enhancement of the compensation.
2. The case of the claimants is that on 01.11.2012,
the claimant was driving the car and when the car reached
near the flyover, the driver of the lorry drove the same in
a rash and negligent manner and suddenly applied the
brake. Due to the said act of the driver of the lorry, the
driver of the car was unable to control the car and hit to
the lorry. Due to the said impact, the claimants and
others had sustained simple as well as grievous injuries
and they were shifted to Axon hospital, Bangalore,
wherein they have taken treatment.
3. As per the evidence, the police have filed charge
sheet on the driver of the lorry as well as the driver of the
car i.e., the claimant herein. The Insurance Company in
support of their case had examined RW.1 and RW.2.
Considering the same, the Tribunal had held that there is
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50% contributory negligence on the part of the claimant
as well as the driver of the lorry and apportioned the same
at 50% on both. When it comes to the injuries, the
claimant had sustained as many as six fractures and
according to him, he was working as a driver and earning
an amount of Rs.10,000/-. As there was no evidence, the
Court below had taken the income at Rs.7,000/-. The
doctor had assessed the whole body disability at 75.8%
and the Tribunal had considered the disability at 70% and
granted the compensation under various heads.
Altogether, the Tribunal had granted compensation of an
amount of Rs.17,48,000/-. As 50% negligence was fixed
on the claimant, the Insurance Company was directed to
pay an amount of Rs.8,74,000/-.
4. Learned counsel for the appellant/claimant
submits that the Court below ought not to have fixed the
contributory negligence on the claimant. It is submitted
that there is no such negligence on the part of the
claimant. It is further submitted that in a case filed under
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Section 166 of the Motor Vehicles Act, even when there is
a contributory negligence on the part of the claimant
himself, considering the case of the employee, under the
provisions of the Employees' Compensation Act , the Court
below ought to have granted the compensation. For that
purpose, he has relied on two judgments, one is the case
of Jaya Biswal and Others Vs. Branch Manager, Iffco
Tokio General Insurance Co. Ltd.1. He had relied on
another judgment of the Andhra Pradesh High Court in the
case of Adhikarala Jagadeeswara Rao vs. Gopala
Krishna Transport and Others2. Basing on this, learned
counsel for the claimant submits that even if this Court
comes to the conclusion that there is 50% contributory
negligence on the part of the employee i.e., the claimant
and the accident had happened during the course of his
employment, the Court has to compensate the claimant as
per the provisions of the Employees Compensation Act as
far as the owner of the vehicle is concerned.
AIR 2016 SC 956
2005 (1) ALD 111
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5. When it comes to the compensation, learned
counsel for the claimant submits that when the doctor had
deposed that he had sustained disability of 75.8%, the
Court below ought not to have taken 70% as the disability.
Further, no future prospectus was considered by the Court
below. He submits that for the loss of amenities and
attendant charges and for the pain and suffering, the
amount that was granted by the Court below was not
reasonable. It is submitted that the compensation that
was granted by the Tribunal is not a just and reasonable
compensation.
6. Learned counsel appearing for the Insurance
Company submits that the Court below had rightly taken
the income and disability and granted the compensation
and no grounds are made out seeking enhancement of the
compensation. When it comes to granting the
compensation under the Employees Compensation Act and
in an application filed under Section 166 of the Motor
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Vehicles Act, learned counsel submits that, that itself is
contrary to Section 167 of the Motor Vehicles Act. Once a
person makes an application under the Motor Vehicles Act,
he cannot maintain a simultaneous application under the
other Act. In such case, question of granting the relief
under the Employees Compensation Act in an application
filed under the Motor Vehicles Act will not arise.
7. First, coming to the quantum of compensation,
the Tribunal under the head of pain and suffering, medical
bills, loss of income, future medical expenses had granted
reasonable compensation basing on the evidence on
record. Then coming to the nourishment, conveyance
and attendant charges, considering the hospitalization,
this Court is granting an amount of Rs.25,000/-. Then
coming to the loss of amenities, granting an amount of
Rs.50,000/- is on the lower side. Considering the injuries,
this Court is granting an amount of Rs.1,00,000/-
towards loss of amenities. Then coming to the loss of
future income, the Court below had taken 70% disability
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and had not granted future prospectus. Hence, future
prospectus at 40%, it comes to Rs.9,800x12x16x70/100 =
Rs.13,17,120/- towards loss of future income.
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 ANOTHER3, the claimant is entitled for an
amount of Rs.10,000/- towards legal expenses.
Altogether, the claimant is entitled for an amount of
Rs.21,94,120/-.
9. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Pain and suffering : Rs. 1,25,000/-
2. Medical bills : Rs. 5,59,000/-
Conveyance, attendant
3. : Rs. 25,000/-
charges and nourishment
4. Loss of income during the laid : Rs. 28,000/-
up period
(2014) 11 SCC 178
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5. Loss of amenities : Rs. 1,00,000/-
6. Future medical expenses : Rs. 30,000/-
7. Loss of future income : Rs. 13,17,120/-
8. Legal Expenses : Rs. 10,000/-
TOTAL : Rs.
21,94,120/-
10. As far as the contributory negligence is
concerned, the police records and the evidence on record
shows that there is contributory negligence on the part of
the driver of the vehicle, as such this Court finds no
reason to interfere, the Court below had rightly
apportioned the same at 50% on the claimant and 50% on
the driver of the offending vehicle.
11. Coming to the submissions made by the learned
counsel for the claimant that when a petition is filed under
Section 166 of the Motor Vehicle Act, the Court has to also
consider the case of the employee under the Employees
Compensation Act, the liability of the employer and decide
the compensation. As far as the judgment of the Apex
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Court is concerned, that judgment arises out of Employees
Compensation Act and the Hon'ble Apex Court has not laid
down any such ratio in the said judgment and the same is
not useful for the claimant. When it comes to the
judgment of the Andhra Pradesh High Court, learned
Judge had observed that:
"Hence, I feel that when two vehicles are involved in
an accident and the driver of one vehicle is responsible
for causing the accident, it will be fair to work out the
compensation payable to the injured person of the
other vehicle, by treating him as a third party and
thereafter, ascertain the liability of his employer to pay
compensation under Workmen's Compensation Act.
Then, the Tribunal should pass an award directing the
insurer with which the vehicle involved in the accident
is insured to pay compensation to the employee of the
insured who is nowhere responsible for causing the
accident under Workmen's Compensation Act and the
rest of the claim has to be fastened on the insurer of
the vehicle that caused the accident due to rash and
negligent driving of the vehicle by its driver. In other
words, after ascertaining the compensation, the
Tribunal shall direct the insurers of both the vehicles to
pay compensation as per their liability. I am
constrained to take this view keeping in mind the
liability of the owner of the vehicle to pay
compensation to his employee without reference to
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any negligence on his part, as per the provisions of the
Workmen's Compensation Act, is retained in tact under
the provisions of M.V.Act. Otherwise, it will be
burdensome for the Insurance Company to satisfy the
claim of the third party as well as the employee of the
tortfeasor. In case of contributory negligence also,
after ascertaining the compensation payable under the
provisions of the Motor Vehicles Act, the compensation
payable by the employer to his employee under
Workmen's Compensation Act has to be worked out
and the award has to be apportioned between both the
insurers. By virtue of this judgment, the Tribunal
constituted under the Motor Vehicles Act has to pass
an award under the provisions of the Motor Vehicles
Act and also an award under Workmen's Compensation
Act in case of an employee covered under proviso to
Section 147(1) the Motor Vehicles Act and apportion
the compensation as directed above. This issue is
answered accordingly."
12. The learned Judge in the above said paragraphs
had observed that the Court has to work out the
compensation under the Employees Compensation Act.
This Court is not able to agree with the said finding in the
said judgment of the learned Judge of the Andhra Pradesh,
when there is clear embargo under Section 167 of the
Motor Vehicles Act for making the claims. When the Act
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itself makes it clear that workman is entitled for
compensation either one of the act, in such a scenario,
considering the case of the claimant under the Workmen
Compensation Act half and Employees compensation Act
on the other half do not arise. Hence, this Court finds no
force in the argument of the learned counsel for the
appellant.
13. Accordingly, the appeal of the claimant is
allowed-in-part, by enhancing the compensation from an
amount of Rs.17,48,000/- to an amount of
Rs.21,94,120/- setting aside the award passed in
M.V.C.No.6908/2012 dated 20.06.2016. The respondent
No.2 - Insurance Company is directed to pay an amount
of Rs.10,97,060/- i.e., 50% of Rs.21,94,120/-
i. The enhanced amount shall carry interest at 6%
p.a. from the date of petition till the date of
realization.
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ii. 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.
iii. 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.
iv. No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
MEG
CT: BHK
