Karnataka High Court

K M Shivu @ Shivakumar vs Soyel Pasha on 28 November, 2023

                                                -1-
                                                         NC: 2023:KHC:43192
                                                       MFA No. 2472 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 28TH DAY OF NOVEMBER, 2023

                                           BEFORE
                   THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                   MISCELLANEOUS FIRST APPEAL NO.2472 OF 2014(MV-I)
                   BETWEEN:

                         K.M. SHIVU @ SHIVAKUMAR,
                         S/O MALLEGOWDA @ MALEGOWDA,
                         AGED ABOUT 27 YEARS,
                         R/O KOREHUNDI VILLAGE,
                         KASABA HOBLI,
                         NANJANAGUD TALUK - 571 301.
                                                               ...APPELLANT
                   (BY SMT. MANJULA, ADVOCATE FOR
                       SRI. R.C. NAGARAJ, ADVOCATE)

                   AND:

                   1.    SOYEL PASHA,
                         S/O SHAFFI AHAMMED,
                         AGED ABOUT 22 YEARS,
Digitally signed by
MALA K N                 R/O NO.106/2,
Location: HIGH COURT     INDRAGANDHI ROAD,
OF KARNATAKA             GOUSIA NAGAR,
                         MYSORE - 570 023.
                         DRIVER OF MOTORCYCLE
                         NO.KA.02-EN-6939

                   2.    N. NAGESH,
                         S/O NINGEGOWDA,
                         AGED ABOUT 42 YEARS,
                         R/O NO.339, 5TH MAIN ROAD,
                         3RD PHASE, MANJUNATH NAGAR,
                             -2-
                                      NC: 2023:KHC:43192
                                    MFA No. 2472 of 2014




     BANGALORE - 560 010.
     OWNER OF MOTORCYCLE
     NO.KA.02-EN-6939

3.   IFFCO-TOKIO GENERAL INSURANCE CO.LTD.,
     NO.846, NEW KANTHARAJE URS ROAD,
     MYSORE - 570 023,
     REPRESENTED BY ITS BRANCH MANAGER.
     INSURER OF MOTORCYCLE
     NO.KA.02-EN-6939.

4.   MOHAMMED FARUQ,
     S/S ISMAIL BEG,
     AGED ABOUT 42 YEARS,
     R/O NO.2542, 2ND CROSS,
     M.K.D.K ROAD,
     MANDI MOHALLA,
     MYSORE - 570 023.
     OWNER OF MOTORCYCLE
     NO.KA.09-EE-6269.

5.   THE ORIENTAL INSURANCE CO.LTD.,
     P.B.NO.210, NO.618,
     CHAMARAJA DOUBLE ROAD,
     MYSORE - 570 024.
     REPRESENTED BY ITS BRANCH MANAGER.
                                          ...RESPONDENTS
(BY SRI. D.S. SRIDHAR, ADVOCATE FOR R3;
    VIDE ORDER DATED:12.01.2015, NOTICE TO
    R1, R2, R4 AND R5 ARE DISPENSED WITH)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:21.12.2013 PASSED IN MVC
NO.8/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC,
MACT, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION
                              -3-
                                          NC: 2023:KHC:43192
                                        MFA No. 2472 of 2014




FOR   COMPENSATION     AND    SEEKING     ENHANCEMENT     OF
COMPENSATION.

      THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,

THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

In this appeal, the petitioners have challenged the

judgment and Award dated 21.12.2013 passed in

MVC.No.8/2012 by the Senior Civil Judge & JMFC, MACT,

Nanjangud (for short 'the Tribunal').

2. The parties will be referred to as per their

status before the Tribunal for the sake of convenience.

3. Brief facts of the case are, on 24.09.2011, at

about 2.30 P.M., while the petitioner was riding his motor

bike bearing registration No.KA-09-BG-6269 from Kabir

Road towards Ashokapuram, in the Cross Road, all of a

sudden, a motor cycle bearing registration No.KA-02-EN-

6939 (in short 'offending motor cycle') entered the main

road caused the accident, injuring the petitioner. The

petitioner has taken treatment at K.R. Hospital, Mysore,

NC: 2023:KHC:43192

underwent surgery in Aravinda Nursing Home. After

treatment, the petitioner has moved the Tribunal for grant

of compensation of Rs.26,50,000/-. The claim was

opposed by the Insurance Company. The Tribunal after

taking evidence, by the impugned judgment, awarded

compensation of Rs.2,01,000/- attributed 50%

contributory negligence against the petitioner and awarded

a sum of Rs.1,00,500/- with interest at 6% per annum.

Pleading inadequacy and seeking enhancement, the

petitioners have filed this appeal on various grounds.

4. Heard the arguments of Smt. Manjula for Sri.

R.C. Nagaraj, learned counsel for the petitioner and Sri.

D.S. Sridhar, learned counsel for the Insurance Company.

5. It is the contention of the learned counsel for

the petitioner that, the petitioner was moving on the main

road and the offending motorcycle came from the Cross

Road, entered the main road hitting against the motor

cycle of the petitioner. There is no contributory negligence

on the part of the petitioner. Attributing 50% contributory

NC: 2023:KHC:43192

negligence on the part of the petitioner is erroneous. It is

further contended that the compensation awarded by the

Tribunal is on the lower side, so also the percentage of

disability for the fracture of both bones of left leg and

sought for enhancement of compensation.

6. Per contra, the learned counsel for the

Insurance Company has contended that at the place of

accident is a junction where the cross road connects to

main road. The driver of the offending motor cycle was

taking turn towards left, at that time, the petitioner came

and hit the motor cycle against the offending motor cycle.

The Tribunal after evaluating the evidence on record, has

correctly attributed 50% contributory negligence on the

petitioner, which has to be maintained as it is. It is

further contended that the accident is of the year 2011.

On the basis of evidence, nature of injuries sustained, the

Tribunal has correctly assessed the disability and there is

no necessary for enhancement under each head and he

has supported the impugned judgment.

NC: 2023:KHC:43192

7. I have given my anxious consideration to the

arguments addressed on behalf of both the parties and

perused the materials on record.

8. On perusal of the material on record, it is

pertinent to note that the place of accident is 13 feet width

Road, where the petitioner was moving from East to West

on his left. The offending motor cycle came from the Cross

Road without observing the incoming traffic all of a sudden

entered the main Road hitting the motor cycle. IMV report

points out the damage to the motor cycle is on the left

side, which clearly points out that the offending motor

cycle all of a sudden entered into the Road. The petitioner

ought to have taken care of while entering. The Tribunal

has rightly attributed contributory negligence against the

petitioner. But the facts and circumstances and the spot

mahazar and Sketch which are marked as Exs.P 150 and

P.151 projects 25% of the contributory negligence on the

part of the petitioner and 75% negligence on the part of

the offending motor cycle.

NC: 2023:KHC:43192

9. The Tribunal has awarded compensation under

various heads as follows :

SL.NO.        PARTICULARS                             AMOUNT (Rs.)
  01.         Pain and suffering                             40,000-00
  02.         Medical Expenses                             1,00,000-00
  03.         Loss of earnings due to disability             51,000-00

  04.         Loss of Amenities                              10,000-00
                          TOTAL                           2,01,000-00

10. The material on record points out that the

petitioner has suffered fracture of both bones. He has also

placed medical evidence of PW2 - Dr. Giridhar Kumar. The

petitioner was under hospitalization for 45 days and

fracture of both legs which caused not less than 10%

whole body disability. The accident is of the year 2011.

The petitioner though claim he was earning Rs.9,000/- per

month, there is no proof. He has to be treated as a person

with no proof of income. Notional income is assessed at

Rs.6,500/- per month. The petitioner was aged about 29

years and appropriate multiplier is '17' and future

NC: 2023:KHC:43192

prospects has to be considered as 40%. The loss of future

income due to disability is assessed as :

Rs.6,500+Rs.2,600=Rs.9,100/-

Rs.9,100x12x17x10% = Rs.1,85,640/-

If all these facts are considered, the petitioner is

entitled for the following compensation:

SL.NO.        PARTICULARS                          AMOUNT (Rs.)
  01.         Pain and suffering                         40,000-00
  02.         Medical Bills                            1,00,000-00
  03.         Loss of amenities and discomfort           25,000-00

  04.         Attendant charges                          9,750-00
  05.         Food and nourishment                      10,000-00
  06.         Traveling expenses                         3,000-00
  07.         Loss of income due to disability        1,85,640-00
  08.         Loss of income during laid up of          26,000-00
              4 months @ Rs.6,500/- per
              month
                           TOTAL                      3,99,390-00

11. The total compensation comes to Rs.3,99,390/-

as against Rs.2,01,000/- awarded by the Tribunal. The

petitioner has attributed 25% of the contributory

negligence and thus, he is entitled for 75% of the total

compensation awarded. Therefore, he is entitled for a sum

NC: 2023:KHC:43192

of Rs.2,99,542/- which is rounded off to Rs.3,00,000/-,

thereby enhancement of Rs.1,99,500/- (Rs.3,00,000 -

Rs.1,00,500). Hence, the appeal merits consideration. In

the result, I pass the following:

ORDER

i) Appeal is allowed-in-part.

ii) The impugned judgment and award is

modified.

iii) The petitioner is entitled to enhanced

compensation of Rs.1,99,500/- along with

interest at 6% per annum from the date of

petition till the date of deposit.