Karnataka High Court

Manjunath vs Madhu Prasad R on 27 November, 2023

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                                                               NC: 2023:KHC:42899
                                                              MFA No. 8156 of 2014




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                                BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 8156 OF 2014 (MV-I)
                       BETWEEN:

                       MANJUNATH
                       AGED ABOUT 32 YEARS
                       S/O RAMASHETTY, R/AT NO.160/2
                       I MAIN, BEHIND MARAMMA TEMPLE
                       NAGASANDRA POST, BAGALKUNTE
                       BANGALORE - 73                              ...APPELLANT

                       (BY SRI. CHETHAN B., ADV.)

                       AND:

                       1.      MADHU PRASAD R
                               NO.21/1, AZEEMA BUILDING
                               A V ROAD, KALASIPALYAM
                               BANGALORE-560 002

                       2.      THE MANAGER,
                               ICICI LOMBARD GENERAL
                               INSURANCE CO., LTD.
                               NO.89, 2ND FLOOR
Digitally signed by
MALA K N                       S V R COMPLEX
                               HOSUR MAIN ROAD
Location: HIGH COURT
OF KARNATAKA                   MADIWALA, BANGALORE-68

                       3.      REVANNA
                               S/O DEVEGOWDA
                               ANKAVALAI VILLAGE
                               HOLENARASIPURA TALUK
                               HASSAN DISTRICT-573 211

                       4.      THE MANAGER,
                               RELIANCE GENERAL INSURANCE
                               COMPANY LIMITED, M G ROAD
                               BANGALORE -1                   ...RESPONDENTS
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                                           NC: 2023:KHC:42899
                                          MFA No. 8156 of 2014




(BY SRI. P.S.JAGADISH, ADV. FOR R2;
    SRI. H S LINGARAJU, ADV. FOR R4;
    R1 & R3 ARE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 4.4.2013
PASSED IN MVC NO.6179/2011 ON THE FILE OF THE 13 TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT
OF SMALL CAUSES, BENGALURU, 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

In this appeal, the petitioner has challenged the

judgment and award dated 04.04.2013 in

M.V.C.No.6179/2011 passed by the XIII Addl. Small

Causes Court and M.A.C.T., Bengaluru ('the Tribunal'

for short).

2. For the sake of convenience, the parties shall

be referred to as per their status before the Tribunal.

3. Brief facts of the case are, on the intervening

night of 10th and 11th of September, 2011 at about

02:00 am, the petitioner while travelling in a canter

lorry bearing Reg.No.KA-13/A-0266 from Bengaluru to

Hassan on NH-48 near Bidanagere cross, it had hit on

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the hind portion of the bus bearing Reg.No.KA-01/B-

9983, which was parked on the middle of the road

without any signal, injuring the petitioner. After taking

treatment at Harsha Hospital, the petitioner has

approached the Tribunal for grant of compensation of

Rs.90,00,000/-. Claim was opposed by the

respondents No.2 and 4/the insurance companies of

both the vehicles. The Tribunal after taking the

evidence, attributed negligence on part of the bus at

30% and that of the canter lorry at 70%, awarded the

compensation of Rs.4,77,000/- with 6% interest p.a.

directing respondents No.2 and 4 to pay the

compensation. Pleading inadequacy and seeking

enhancement, the petitioner has filed this appeal on

various grounds.

4. Heard the arguments of Sri. Chethan, B,

learned counsel for the petitioner, Sri. P.S. Jagadish,

learned counsel for respondent No.2/the insurer of the

bus and Sri. H.S. Lingaraju, learned counsel for

respondent No.4/the insurer of the canter lorry.

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5. It is the contention of learned counsel for the

petitioner that the petitioner has spent almost

Rs.1,80,000/- towards treatment, he has suffered

fracture of left femur, fracture of left fibula, fracture of

left medial mallelous. He was under hospitalization for

6 days, he was aged 34 years, doing business and

earning Rs.10,000/- per month. The petitioner has

placed evidence of PW-2 Dr. Mruthyunjaiah to explain

that he has sustained 38% whole body disability. The

Tribunal has not considered the gravity of the injuries

and awarded the lesser compensation under different

heads and he sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company of the bus has contended that there was no

negligence on part of the driver of the bus because the

bus was parked by the side of the road with proper

signal. It is the canter lorry which came behind and hit

on the hind portion of the bus, damaging it, for which

the driver of the bus cannot be attributed for any

negligence and 30% contributory negligence fastened

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against the bus is not proper and it has to be

exonerated.

7. Learned counsel for the Insurance Company of

the canter lorry has contended that without giving any

signal, the bus was parked on the middle of the road;

as it was NH-48, incoming traffic was blocked which

led the accident. There is no negligence on part of the

lorry and complete negligence is on part of the bus

which was parked on the middle of the road without

giving any signal for the incoming traffic and

attributing 70% negligence on part of the lorry is not

proper. It is further contended that the Tribunal

having regard to the nature of injuries, treatment,

money spent towards treatment, has properly

assessed the compensation, there is no proof produced

by the petitioner to show that he was doing business

and earning Rs.10,000/-. The Tribunal has rightly

taken the income of the petitioner and assessed the

loss of future earnings. The compensation awarded is

in excess, there are no grounds for enhancement and

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he has supported the impugned judgment to that

extent.

8. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the materials on record.

9. The material on record did point out that there

was an accident between canter lorry and the bus on

the middle of the road near Bidanagere Cross at

National Highway-48 i.e., Bengaluru-Hassan Main

Road. It is pertinent to note that the bus was parked

on the middle of the road, there was no signal for the

incoming traffic. At the same time, the canter lorry

without observing the broke down bus ahead, went

and hit on its hind portion. Hence, circumstances

suggest and point out that both the drivers have

contributed to the accident. If the bus has not stopped

on the middle of the road or even after stopping, if the

driver has made any arrangements for signalling the

incoming traffic about the breakdown of the bus, the

driver of the lorry has no other way hitting on the hind

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portion of the bus. At the same time, the accident

took place in the early morning 02:00 am, the driver of

the canter lorry should have taken care to avoid hitting

against the bus. The national highway is meant for

speeding of the vehicles, but it is a wide road. If the

driver was cautious in driving, he could have avoided

the accident. I have perused the impugned judgment

and also the reasons assigned by the Tribunal

regarding attributing 30% negligence against the bus

and 70% against the canter lorry, it has given cogent

reason as to why the accident occurred and attributed

30:70 of negligence on part of the drivers of the bus as

well as the canter lorry. The finding recorded by the

Tribunal is well reasoned and there is no reason to

discard the reasonings assigned by the Tribunal and it

has to be accepted.

10. The material on record, particularly the

wound certificate, discharge summary under Exs.P2

and P3, case sheet at Ex.P12, X-Ray and C.T. Scan

Films at Ex.P14 and P15 did point out that the

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petitioner has suffered 3 major fractures i.e., fracture

of left femur, fracture of left fibula, fracture of left

medial mallelous apart from other injuries. The

petitioner was under hospitalization for 6 days. PW-2

Dr. Mruthyunjaiah is the treated Doctor explains the

surgery to fix fractures, assessed limb disability of

38% and whole body disability of 13%. The disability

so assessed by the Medical Officer being evaluated by

the Tribunal and came to the conclusion that the

petitioner has sustained 13% of whole body disability

but while doing multiplication, taken 10%. Having

regard to nature of injury, avocation there is no reason

to discard the finding recorded by the Tribunal for the

reason that it is the Tribunal which knew what is the

avocation of the petitioner, what is the nature of injury

affecting his earning capacity. In this background 13%

is the whole body disability instead of 10%. Apart

from the fracture injuries, the petitioner has sustained

cut lacerated wound over the face, cut lacerated

wound over the upper lip, injury to left foot and

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injuries to other parts of the body, which will certainly

cause him loss of amenities and discomfort and he was

made to undergo hospitalization. The medical bills

amounting to Rs.1,75,296/- explains huge money has

been spent by the petitioner for the medicines as per

medical bills and prescriptions at Ex.P6 and P7. The

amount of medical bills has to be reimbursed to the

petitioner. Towards pain and sufferings, the petitioner

has to be compensated with Rs.50,000/-, attendant

charges at Rs.1,500/-, food and nourishment at

Rs.10,000/-, travelling expenses at Rs.3,000/-. The

petitioner having suffered loss of amenities and

discomfort for which he has to be paid Rs.50,000/-.

The petitioner was laid-up for 6 months, hence loss of

income during laid-up at Rs.45,000/- (Rs.7,500/- x 6)

has to be assessed. Future medical expenses of

Rs.25,000/- is assessed by the Tribunal and it has to

be kept intact.

11. As regarding loss of future earnings is

concerned, the Tribunal has taken the income of the

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petitioner at Rs.10,000/- and selected '16' multiplier

and taken disability at 10%. The petitioner has not

produced any proof of income that he was earning

Rs.10,000/- per month. Hence, the income assessed

at Rs.10,000/- is on the higher side. The petitioner

claims that he was doing a business and relied upon

Ex.P8/receipt issued by D.T.D.C., Courier and Cargo

Ltd., Ex.P9/PAN Card, Ex.P10/Licence Copy and

Ex.P11/the membership certificate. These documents

will not show the income of the petitioner. The

petitioner has not examined any person from D.T.D.C.

that what would be his earning capacity. Having

regard to the accident of the year 2011, the income of

the petitioner has to be taken at Rs.6,500/- for a

person with no proof of income. Having regard to

avocation of the petitioner his income is assessed at

Rs.7,500/- per month.

12. As discussed above, loss of earnings will be

Rs.7,500/- + Rs.3,000/- (40% future prospects) =

Rs.10,500/- x 12 x '16' multiplier x 13% =

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Rs.2,62,080/-. Accordingly, the petitioner is entitled

for loss of future earnings. The total compensation

comes to Rs.6,21,876/- as against Rs.4,77,000/-

awarded by the tribunal, thereby enhancement of

Rs.1,44,876/- rounded off to Rs.1,45,000/-. This is

the just compensation that the petitioner is entitled to

in the facts and circumstances of the case. Both

Insurance Companies of the bus and the canter lorry

has to pay the enhanced compensation at the ratio of

30:70 as determined by the Tribunal. Accordingly, the

appeal merits consideration, in the result, the

following:

ORDER

i) Appeal is allowed-in-part.

     ii)     Impugned     judgment           and       award     is
             modified.

     iii)    Petitioner   is   entitled           to   enhanced
             compensation      of     Rs.1,45,000/-           with
             interest of 6% p.a.