Karnataka High Court

Prema Kamath vs K.P.Saraswathi on 25 May, 2023

Bench: C M Joshi

                                                -1-
                                                         MFA No. 1695 of 2017




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 25TH DAY OF MAY, 2023

                                              BEFORE

                                 THE HON'BLE MR JUSTICE C M JOSHI

                        MISCELLANEOUS FIRST APPEAL NO. 1695 OF 2017 (MV-I)

                   BETWEEN:

                   PREMA KAMATH,
                   W/O. G PRABHAKARA KAMATH,
                   AGED ABOUT 72 YEARS,
                   R/O KUMBARAGUNDI
                   OPP. ROYAL PRINTING PRESS,
                   SHIVAMOGGA CITY-577 201.

                                                                    ...APPELLANT
                   (BY SRI. S V PRAKASH, ADVOCATE)

                   AND:

                   1.    K.P.SARASWATHI,
                         W/O MANJE GOWDA,
Digitally signed
by T S                   AGED ABOUT 44 YEARS,
NAGARATHNA
Location: High           R/O BARANDURU,
Court of
Karnataka                BHADRAVATHI TALUK,
                         SHIVAMOGGA DISTRICT- 577 301.

                   2.    MANJEGOWDA,
                         S/O. HONNAIAH,
                         AGED ABOUT 47 YEARS,
                         R/O BARANDURU, BHADRAVATHI TALUK
                         SHIVAMOGGA DISTRICT-577 301.

                   3.    NATIONAL INSURANCE CO. LTD.,
                         HARSHA COMPLEX, B H ROAD,
                         SHIVAMOGGA-577 201.
                                -2-
                                       MFA No. 1695 of 2017




     BY ITS BRANCH MANAGER.

4.   G PRABHAKARA KAMATH,
     S/O.J.GOVINDA,
     AGED ABOUT 76 YEARS,
     R/O KUMBARAGUNDI,
     OPP ROYAL PRINTING PRESS,
     SHIVAMOGGA CITY-577 201.

                                               ...RESPONDENTS
(BY SRI K KISHORE KUMAR REDDY, ADVOCATE, FOR R-3,
    R-1, R-2, AND R-4 SERVED BUT UNREPRESENTED)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:21/10/2016 PASSED IN MVC
NO.835/2013 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 HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                           JUDGMENT

The petitioner in MVC No.835/2013 before the II

Additional Senior civil Judge and AMACT -8, Shivamogga, is

before this Court in appeal.

2. By the impugned judgment, the Tribunal has awarded

a sum of Rs.52,000/- with interest at 9% p.a. and directed the

3rd and 4th respondents to deposit the same in the ratio of

80:20.

MFA No. 1695 of 2017

3. The factual matrix of the case are as below:

It is the case of the petitioner that on 9-6-2012, the

petitioner and her husband i.e., respondent No.4 before the

Tribunal were moving on a Scooty bearing No.KA.14.EA/7970

and she was a pillion rider. At about 7.10 a.m. on

Shivamogga- Sagar road, a Maruthi Omni car bearing

No.KA.14.M/5536 came in high speed, in negligent manner and

dashed against the scooty. As a result, petitioner and her

husband fell down and sustained grievous injuries. Petitioner

was taken to Nanjappa hospital, Shivamogga, where she took

treatment as inpatient and thereafter, she was shifted to KMC

Hospital Manipal where she took treatment as an inpatient and

underwent surgery. But inspite of the medical treatment

injuries are not cured and still she is taking treatment. It is

further contended that, at the time of accident, petitioner was

aged about 68 years and she has suffered disability and

uncomforts and therefore, she is entitled for the compensation

from the driver, owner and insurer of the offending vehicle.

The petitioner has also arrayed her husband as respondent

No.4 before the Tribunal.

MFA No. 1695 of 2017

4. In response to the notice issued by the Tribunal,

respondent Nos. 1 to 4 have appeared and filed their objection

statements.

5. The respondent Nos. 1 and 2 denied any actionable

negligence attributed to them and contended that the accident

was due to the sole negligence on the part of respondent No.4,

the rider of the two wheeler.

6. The respondent No.3 admitted the cover of insurance

on the Maruthi Omni vehicle, but contended that the

compensation claimed is highly exorbitant, imaginary and

unsustainable and that the terms and conditions of the policy

had been violated and as such, it is not liable to pay the

compensation.

7. The respondent No.4 admitted the accident, but

claimed that there was no negligence on his part and accident

was solely due to negligent act of respondent No.2 and he is

not necessary party to the petition and only to escape from

liability, respondent No.3 has impleaded him and prayed to

dismiss the petition.

MFA No. 1695 of 2017

8. On the basis of the above pleadings, the Tribunal

framed the necessary issues and the petitioner was examined

himself as PW1 and Exs.P1 to P10 were marked in evidence. No

evidence was adduced on behalf of respondents. The Tribunal

after hearing the arguments by both sides and on perusal of

the records, came to the conclusion that the husband of the

petitioner i.e., respondent No.4 had also contributed to the

extent of 20% of the actionable negligence, since he did not

possess a valid driving license to drive a two wheeler.

Ultimately, it came to the conclusion that the petitioner is

entitled for a compensation of Rs.52,000/- and directed the

respondent No.3 and respondent No.4 to pay the

compensation amount to the petitioner in the ratio of 80:20. It

is the said judgment which has been assailed by the petitioner

before this Court in this appeal.

9. The appeal was admitted and on issuance of notice,

respondent No.3- Insurance Company has appeared through its

counsel and other respondents did not appear despite service

of notice.

MFA No. 1695 of 2017

10. The learned counsel appearing for the appellant/

petitioner submits that none of the respondents had contended

that there was any contributory negligence, but the Tribunal

came to the conclusion that there was a contributory

negligence by the respondent No.4 i.e., the husband of the

petitioner since he did not possess a valid driving license at the

time of the accident. In support of his contention, he placed

reliance on the decision reported in the case of Sudhir

Kumar Rana Vs. Surinder Singh and others1, wherein it

was held that, "non possession of the driving license by itself

may not lead to a finding of negligence as regards the

accident." Similar view have also been expressed by various

other High Courts and which cannot be overlooked that the

negligence cannot be linked to the driving license. Unless there

is a positive evidence that there was a contributory negligence

on the part of the respondent No.4, non-possession of the

driving license to drive a vehicle cannot be a reason to hold

that there was actionable negligence on the part of the such

rider also. Therefore, the reliance placed by the Tribunal on the

decision in the case of Chatra and another Vs. Imrat Lal

2008 AIR SCW 3981

MFA No. 1695 of 2017

and others2 rendered by the Madhya Pradesh High court was

not proper.

11. It is evident that the respondent Nos. 1 and 2 though

contended that the accident was due to the negligence on the

part of the respondent No.4, did not adduce any positive

evidence in support of the same. Under these circumstances, it

cannot be concluded that there was a contributory negligence

on the part of respondent No.4. It is evident that the

investigation by the police also led to the conclusion that there

was negligence on the part of the driver of the Maruthi Omni.

There is nothing on record in the police papers to show that

there was any contributory negligence on the part of

respondent No.4. Hence, the finding of the Tribunal about the

contributory negligence cannot sustain in the eyes of law.

12. The second prong of the arguments by the learned

counsel appearing for the appellant is that the compensation

awarded by the Tribunal is abysmal and it do not conform to

the settled principles of law. He points out that the

compensation under the head of loss of amenities in life and

1998 AC 314

MFA No. 1695 of 2017

the loss of income which surfaces during laid up period are not

considered by the Tribunal. Though he concedes that there is

no evidence regarding the percentage of the disability suffered

by the petitioner, he maintains that the compensation under

the above two heads should have been granted by the Tribunal.

13. On perusal of the impugned judgment, it is evident

that, the Tribunal awarded the compensation under the

following heads:

Towards pain and sufferings Rs.30,000/-

Towards medical expenses Rs. 12,000/- Towards conveyance, attendant charges and Rs. 10,000/-

    food and nourishment

    Total                                       Rs.52,000/-

14.Evidently, the petitioner had suffered comminuted

displaced fracture of upper limb and distal 1/3rd of right

humerus and displaced fracture of 1/3rd of right ulna. These

two fractures definitely paralyze the petitioner for considerable

time. The age of the petitioner cannot be over looked.

Therefore, it is evident that the Tribunal has lost sight of the

fact that the petitioner is also entitled for compensation under

MFA No. 1695 of 2017

the head of loss of amenities in life which this Court finds that a

sum of Rs.30,000/- would be adequate.

15. Further, it is evident that the Tribunal also did not

consider the fact that the petitioner was a senior member in

her family and she was paralyzed atleast for a period of two

months on account of her injuries and she was dependent upon

others. The resultant economical impact on the family cannot

be overlooked. Therefore, the loss of income during the

treatment period, which obviously is to her family members