Karnataka High Court
Sri. Alexander vs Smt. Mangala Angadi on 17 November, 2023
Bench: Rajendra Badamikar
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NC: 2023:KHC:41063
MFA No. 4641 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO. 4641/2013 (MV-I)
BETWEEN:
SRI. ALEXANDER,
S/O.SRI.SHEKAR D.P.,
AGE:25 YEARS, OCC:NIL,
R/O.NO.709, 1ST MAIN ROAD,
BEHIND ALOSIUS HIGH SCHOOL,
DODDAGUNTA, COX TOWN,
BANGALORE-560 005.
...APPELLANT
(BY SRI. SURESH .M LATUR, ADVOCATE)
AND:
1. SMT. MANGALA ANGADI,
MAJOR,
W/O.A.MANJUNATH,
R/O.NO.23/1, GROUND FLOOR,
Digitally G-9 STREET, JOGUPALYA,
signed by HALASURU,
SOWMYA D BANGALORE-560 008.
Location:
High Court 2. THE MANAGER,
of Karnataka ROYAL SUNDARAM ALLIANCE
INSRUANCE CO.LTD.,
NO.186, RAGHAVENDRA COMPLEX,
HOSUR MAIN ROAD,
WILSON GARDEN,
BANGALORE-560 027.
...RESPONDENTS
(BY SRI. P B RAJU FOR R2, ADVOCATE FOR R2,
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NC: 2023:KHC:41063
MFA No. 4641 of 2013
V/O DATED 31.7.2015, NOTICE TO R1 DIS D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.02.2013 PASSED IN MVC
NO.2483/2011 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSE JUDGE, MACT, BANGALORE, 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
This appeal is filed by the claimant under Section
173(1) of the Motor Vehicles Act, 1988 ('MV Act' for
short), challenging the judgment and award passed by
Motor Accident Claims Tribunal, Bangalore (SCCH-11, I
Additional Small Causes Court, Bangalore) in MVC
No.2483/2011 dated 11.02.2013.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the
Tribunal.
3. The brief factual matrix leading to the case are
as under:
On 14.02.2011, at 6.10 p.m. the petitioner was
proceeding on his motor cycle bearing registration No.KA-
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MFA No. 4641 of 2013
19-K-681 on Hennur Main Road. When he reached near
Geddalahalli, at that time, the car bearing registration
No.KA-03-D-5645 came from the opposite direction in a
rash and negligent manner and moved on the wrong side
and hit the motor cycle of the claimant, resulting in
grievous injuries to the claimant. The claimant
immediately was shifted to Vijaylakshmi Hospital and
subsequently, he was shifted to Lady Curzon Bowring
Hospital wherein he was treated as an inpatient. It is also
asserted that implants were inserted and he is
permanently disabled. According to the claimant, he was
working as a driver and earning Rs.10,000/- per month
and because of the accident, he is disabled from
discharging his duty as the driver. Hence, he filed the
claim petition under Section 166 of the MV Act claiming
compensation of Rs.6,00,000/- from respondents.
4. Respondent Nos.1 & 2 have appeared and
respondent No.1-the owner of the offending car did not
contest the matter by filing objection statement.
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MFA No. 4641 of 2013
Respondent No.2 filed objection statement denying the
allegations and assertions made in the claim petition and
further, asserted that the accident is due to rash and
negligent driving on the part of the claimant himself and
there is no negligence on the part of the driver of the
offending car. However, he admitted the coverage of the
insurance of the offending car but disputed the other
claims and sought for dismissal of the claim petition.
5. The Tribunal after appreciating the oral and
documentary evidence, came to conclusion that claimant is
entitled for a total compensation of Rs.50,000/-. However,
the Tribunal has fastened 40% contributory negligence on
the claimant and by deducting 40%, awarded Rs.30,000/-
as compensation to the claimant.
6. Being aggrieved by this finding, the claimant is
before this Court disputing the fastening of contributory
negligence on the part of the claimant himself and also on
the ground of quantum.
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MFA No. 4641 of 2013
7. Heard the arguments advanced by the learned
counsel for appellant/claimant and the learned counsel for
respondent No.2/Insurer. Perused the records.
8. The learned counsel for appellant/claimant
would contend that the accident was occurred on
14.02.2011 and petitioner was initially admitted in
Vijaylakshmi Hospital wherein he was inpatient for 7 days
and thereafter for 2 days he was in Sanjay Gandhi Hospital
and later on he was admitted in Lady Curzon Bowring
Hospital as inpatient for 22 days. It is further asserted that
he suffered fracture of right femur and implants were
inserted and he is unable to do the driving work as per the
evidence of PW2. He has also contended that the
petitioner was eaking his livelihood by working as driver
and is permanently disabled. He would contend that
considering Ex.P4-the sketch of the scene of offence, the
Tribunal has committed an error in fastening 40%
contributory negligence on the part of the claimant as the
claimant was riding the motor cycle on proper side of the
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MFA No. 4641 of 2013
road. Hence, he would seek for allowing the appeal by
enhancing the compensation and fastening the entire
liability on the Insurance company.
9. Per contra, the learned counsel for respondent
No.2 would contend that PW2 is not a treated doctor and
the evidence of claimant discloses that he does not know
the name of the owner under whom he was working. He
would also assert that driving license-Ex.P7 discloses that
it is pertaining to non-transport and hence, he cannot
work as a paid driver. He would also assert that there is
no endorsement in Ex.P7 authorising him to drive two-
wheeler and hence, according to him, the claimant was
riding the motor cycle without a driving license and he was
not knowing art of riding the motor cycle. He would
contend that Tribunal has rightly awarded a just
compensation and sought for dismissal of the appeal.
10. On perusal of the records, it is evident that
there is no serious dispute of the fact that on 14.02.2011,
at 6.10 p.m., the two wheeler of claimant was hit by the
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MFA No. 4641 of 2013
offending car. Ex.P4 is the sketch of the scene of offence
and at the accident spot, road is running from south
towards north. The claimant was riding the motor cycle
from Hennur i.e., from south and was moving towards
north. The car was moving towards Hennur i.e., from
north to south. The accident spot is on the edge of the
western side of the road. The driver of the offending car,
since moving from north to south, he should have moved
on the left side i.e., eastern side of the road, but he
moved on the western side. The accident has occurred
almost near the western edge of the main road and the
rider was moving on the left side i.e., on the western side
of the road. The sketch clearly discloses that there was a
small curve at the accident spot and the car driver, while
negotiating the curve moved on wrong side and thereby
he hit the rider of two wheeler i.e., the claimant who was
coming from opposite direction. Hence, the Tribunal has
committed a grave error in fastening 40% contributory
negligence on the part of the claimant and there is no
proper reasoning for the said finding. Further records
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disclose that the driver of the car was prosecuted and
charge sheeted. Hence, the oral and documentary
evidence, clearly disclose that the accident is solely
because of actionable negligence on the part of the driver
of the offending car and hence, the entire liability is
required to be fastened on respondents.
11. There is no serious dispute of the fact that the
offending car was insured with respondent No.2 and
hence, the entire liability is to be fastened on respondent
No.2-insurance company.
12. The records disclose that claimant has suffered
fracture of right femur. Initially, he was admitted in
Vijaylaksmi Hospital for 7 days and later on for 2 days he
was inpatient in Sanjay Gandhi Hospital and later on he
was admitted in Lady Curzon Bowring Hospital on
11.03.2011 and was discharged on 26.03.2011. The
evidence of PW2 and the records disclose that initially
external fixation was done in Vijaylaksmi Hospital. But
subsequently, in Lady Curzon Bowring Hospital, the
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MFA No. 4641 of 2013
internal fixation was done, which is evident from Ex.P29.
Hence, prima facie it is evident that the claimant was
operated and implants were inserted at the fracture side.
13. Though all along it is argued that PW2 is not a
treated Doctor, the evidence on record discloses that he
has treated the patient subsequently in Lady Curzon
Bowring Hospital and operated him. His evidence disclose
that claimant has suffered 39.8% of disability to the right
lower limb and he gives evidence that to the whole body
disability is 20%. But on what basis he asserts disability to
20% to the whole body is not at all explained. Considering
the disability to the extent of 39.8% to the right lower
limb, the whole body disability can be taken at 14%.
14. The claimant asserts that he was earning
Rs.10,000/- per month by working as driver and now he is
completely disabled and he cannot drive the vehicle. But
on perusal of Ex.P7, which is the driving license, it is
pertaining to non-transport vehicle and to drive as a paid
driver, it requires an endorsement to drive pertaining to
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MFA No. 4641 of 2013
transport vehicle. But no such evidence is forthcoming.
Even otherwise, PW1 is unable to give the name of the
owner under whom he was working as a paid driver. Under
such circumstances, merely because that he was
possessing driving license, it cannot be presumed that he
is the driver by profession as Ex.P7 does not disclose
endorsement for driving of transport vehicle.
15. The accident has occurred in the year 2011. In
the absence of any material evidence this Court is
consistently taking the notional income at Rs.6,500/- per
month pertaining to the accidents occurred in the year
2011. There is no serious dispute of the fact that the
claimant was aged about 23 years and hence, multiplier
18 is applicable. If Rs.6,500/- is taken as notional income
and considering 14% disability, the loss of future income
would workout as under:
Rs.6500 X 12 X 18 X 14/100 = Rs.1,96,560/-
Hence, the claimant would be entitled for Rs.1,96,560/-
under the head of loss of future income.
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MFA No. 4641 of 2013
16. Ex.P11 to Ex.P20 are the medical bills
amounting to around Rs.40,000/-.The Tribunal has
rejected the said claim on flimsy grounds and claimant
would be entitled for Rs.40,000/- under the head of
medical expenses. Further considering the implants, under
the head of future medical expenses claimant would be
entitled for additional amount of Rs.10,000/-.
17. The claimant has suffered fracture of right
femur and further, the evidence discloses that he has got
certain disability. Considering the nature and gravity of the
fracture as well as the accident occurred in 2011, I
propose to award Rs.35,000/- under the head of pain and
sufferings and Rs.20,000/- under the head of loss of
amenities in life.
18. Further, because of the accidental injuries, the
claimant was inpatient for almost three weeks and under
the head of attendant charges, nourishment and
conveyance, I propose to award Rs.7,000/- and under the
head of laid up period for a period of two months, he is
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MFA No. 4641 of 2013
entitled for Rs.13,000/-. Hence, claimant would be entitled
for compensation under various heads as under:
Sl.
Particulars Amount
No.
1 Loss of future income Rs.1,96,560/-
2 Pain & sufferings Rs.35,000/-
3 Loss of amenities Rs.20,000/-
4 Medical expenses Rs.40,000/-
5 Future medical expenses Rs.10,000/-
6 Attendant charges, Rs.7,000/-
Nourishment and
conveyance
7 Loss of income during laid Rs.13,000/-
up period
Total Rs.3,21,560/-
As such, claimant would be entitled for total
compensation of Rs.3,21,560/- as against Rs.30,000/-
awarded by the Tribunal. Hence, appeal needs to be
allowed partly and accordingly, I proceed to pass the
following:
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MFA No. 4641 of 2013
ORDER
(i) The appeal is allowed in part.
(ii) The claimant is held entitlement for a total
compensation of Rs.3,21,560/- as against
Rs.30,000/- awarded by the Tribunal with interest
at the rate 6% per annum from the date of petition
till the realization except interest on Rs.10,000/-
awarded towards future medical expenses.
(iii) The entire compensation including enhanced
compensation shall be paid by the Insurer-
respondent No.2.
(iv) Respondent No.2 is directed to deposit the
enhanced compensation with accrued interest
thereon within six weeks from the date of receipt
of certified copy of this order.
(v) The entire compensation with accrued interest
shall be released in favour of the claimant.
Sd/-
JUDGE
DS
