Karnataka High Court
Smt.Divya G vs Mururgesh on 7 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:44427
MFA No. 4356 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4356 OF 2020 (MV)
BETWEEN:
SMT.DIVYA G
W/O CHANDRASHEKAR
D/O GOVINDAPPA
AGED 23 YEARS
KURUBARAHALLI, HOSKOTE TALUK
BENGALURU.
PRESENTLY R/AT DUNNASANDRA CROSS
DEVANAGUNDHI POST
ANUGONDANAHALLI HOBLI
BENGALURU-560 067.
...APPELLANT
(BY SRI. GURUDEV PRASAD K T.,ADVOCATE)
AND:
Digitally signed 1. MURURGESH
by
DHANALAKSHMI S/O CHANDRAPPA
MURTHY
NO.1, SRI.MARUTHI BAKERY AND SWEETS
Location: High
Court of N.N.BUILDING, NEAR ANJANEYA TEMPLE
Karnataka
IMMADIHALLI VILLAGE AND POST
WHITEFIELD, BENGALURU-560 066.
2. M/S. LIBERTY VIDECON GEN.INSU.CO.LTD
OFFICE NO.1, ALYSSA, 1ST FLOOR
REAR PORTION, OLD NO.28
NEW NO.23, RICHMOND ROAD
BENGALURU-560 025
...RESPONDENTS
(BY SRI.RAVI S SAMPRATHI., ADVOCATE FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 21.06.2022)
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MFA No. 4356 of 2020
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:26.11.2019
PASSED IN MVC NO.3173/2019 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE, XXIV ACMM, MEMBER,
MACT, BENGALURU, (SCCH-20), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act', for
short) has been filed by the claimant being aggrieved by
the judgment dated 26.11.2019 passed by the Motor
Accidents Claims Tribunal & V Addl. Judge, SCCH-20, Mayo
Hall Unit, Bengaluru (for short, 'the Tribunal') in MVC
No.3173/2019.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 11.04.2019 at about 5.00 p.m.
the claimant was proceeding as a pillion rider on
motorcycle bearing registration No.KA-53/L-742 on NH
207 road, near KSVK School, Anugondanhalli, Bangalore.
At that time, another motorcycle bearing registration
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No.KA-53/HA-5777 being ridden by its driver at a high
speed and in a rash and negligent manner, dashed to the
vehicle of the claimant. As a result of the aforesaid
accident, the claimant fell down, sustained grievous
injuries and was hospitalized.
3. The claimant filed a petition under Section 166
of the Act seeking compensation. It was pleaded that he
spent huge amount towards medical expenses,
conveyance, etc. It was further pleaded that the accident
occurred purely on account of the rash and negligent
riding of the offending vehicle by its rider.
4. On service of notice, the respondent No.2
appeared through counsel and filed written statement in
which the averments made in the petition were denied.
The age, avocation and income of the claimant and the
medical expenses are denied. It was pleaded that the
accident was due to the rash and negligent riding of the
vehicle by the claimant herself. It was further pleaded that
the rider of the offending vehicle did not have valid driving
licence as on the date of the accident. It was further
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pleaded that the liability is subject to terms and conditions
of the policy. It was further pleaded that the quantum of
compensation claimed by the claimant is exorbitant.
Hence, he sought for dismissal of the petition. The
respondent No.1 did not appear before the Tribunal inspite
of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimant herself was examined as PW1,
Dr.Nagaraj B.N. as PW2 and other witness as PW3 and got
exhibited documents namely Ex.P1 to Ex.P15. On behalf
of the respondents, neither any witness was examined nor
got exhibited documents. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent riding of the
offending vehicle by its rider at 90% and negligence of the
claimant at 10%, as a result of which, the claimant
sustained injuries. The Tribunal further held that the
claimant is entitled to a compensation of Rs.2,90,000/-
along with interest at the rate of 9% p.a. and directed the
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Insurance Company to deposit 90% of the compensation
amount, i.e., Rs.2,61,000/- along with interest. Being
aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has raised
the following contentions:
(i) Firstly, the claimant was a pillion rider in the
motorcycle bearing registration No.KA-53/L-742 and the
entire negligence is on the rider of the motorcycle bearing
registration No.KA-53/HA-5777. But the Tribunal has erred
in holding that the claimant has contributed 10% to the
accident, since she was not wearing helmet. The same is
contrary to the judgment of the Apex Court in the case of
MOHAMMED SIDDIQUI vs. NATIONAL INSURANCE
COMPANY LIMITED reported in AIR 2020 SC 520.
(ii) Secondly, PW3, the doctor has stated in his
evidence that the claimant has suffered disability of 55%
to right lower limb and 18% to whole body. But the
Tribunal has not awarded compensation for 'loss of future
income'.
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(iii) Thirdly, due to the accident, the claimant has
sustained grievous injuries. She was treated as inpatient
for a period of 5 days. Even after discharge from the
hospital, she was not in a position to discharge her regular
work. She suffered lot of pain during treatment and she
has to suffer the disability and unhappiness throughout
her life. Considering the same, the compensation granted
by the Tribunal under the heads of 'loss of amenities',
'pain and sufferings' and other incidental expenses are on
the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following contentions:
(i) Firstly, even though the claimant was a pillion
rider, she was not wearing helmet. As per the Motor
Vehicle Rules, pillion rider is supposed to wear helmet and
since she was not wearing helmet, the Tribunal has rightly
held that she has contributed 10% to the accident.
(ii) Secondly, even though the doctor assessed 18%
whole body disability, the disability will not affect the day
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today activity of the claimant. Therefore, Tribunal rightly
not granted any compensation under the said head.
(iii) Thirdly, the injuries suffered by the claimant are
minor in nature. She was inpatient for only 5 days.
Considering the evidence of the doctor and the injuries
suffered by the claimant, the overall compensation
awarded by the Tribunal is just and reasonable.
(iv) Fourthly, in view of the Division Bench decision
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 interest granted by the Tribunal at the
rate of 9% p.a. is on the higher side and the same has to
be reduced to 6% p.a. Hence, he sought for dismissal of
the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award.
9. The case of the claimant is that on 11.04.2019
at about 5.00 p.m. the claimant was proceeding as a
pillion rider on motorcycle bearing registration No.KA-
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53/L-742 on NH 207 road, near KSVK School,
Anugondanhalli, Bangalore. At that time, another
motorcycle bearing registration No.KA-53/HA-5777 being
ridden by its driver at a high speed and in a rash and
negligent manner, dashed to the vehicle of the claimant.
As a result of the aforesaid accident, the claimant fell
down, sustained grievous injuries and was hospitalized. It
is not in dispute that the claimant was a pillion rider and
she was not riding the motorcycle. Therefore, it cannot be
held that she has contributed to the accident. The finding
of the Tribunal that the claimant contributed to the
accident to the extent of 10% is unsustainable. The rider
of the offending vehicle alone is negligent in causing the
accident.
Re.quantum:
10. The claimant has not produced any evidence with
regard to 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 2019, the notional
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income has to be taken at Rs.14,000/- p.m. Due to the
accident the claimant has suffered fracture of right femur
and other injuries. The claimant was inpatient for 5 days.
PW-3, the doctor has stated in his evidence that the
claimant has suffered disability of 55% to right lower limb
and 18% to whole body. Therefore, taking into
consideration the deposition of the doctor, PW-3 and
injuries suffered by the claimant, the whole body disability
is taken at 10%. The claimant was aged about 22 years
at the time of the accident and multiplier applicable to her
age group is '18'. Thus, the claimant is entitled for
compensation of Rs.3,02,400/- (Rs.14,000*12*18*10%)
on account of 'loss of future income'. Due to the accident,
the claimant has suffered grievous injuries, she has
suffered lot of pain during treatment and she has to suffer
with the disability and unhappiness throughout his life.
Considering the same, I am of the opinion that the
claimant is entitled to 'loss of income during laid-up
period' for a period of one month, i.e., Rs.14,000/-. The
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compensation awarded by the Tribunal under other heads
is just and reasonable.
11. 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 75,000 75,000
Medical expenses 120,000 120,000
Food, nourishment, 20,000 20,000
conveyance and
attendant charges
Loss of income during 0 14,000
laid up period
Loss of amenities 35,000 35,000
Loss of future income 0 302,400
Future medical expenses 40,000 40,000
Total 290,000 606,400
12. In view of the above, I pass the following order:
(i) The appeal is allowed in part.
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(ii) The judgment of the claims Tribunal is modified.
The claimant is entitled to a total compensation of
Rs.6,06,400/- in place of Rs.2,61,000/- awarded by the
Tribunal.
(iii) The Insurance Company is directed to deposit
the compensation amount along with interest from the
date of filing of the claim petition till the date of
realization, within a period of six weeks from the date of
receipt of copy of this judgment excluding interest for the
compensation awarded under the head of 'future medical
expenses'.
(iv) The enhanced compensation carries interest @
6% p.a.
Sd/-
JUDGE
CM
