Karnataka High Court

Ravi R K vs Manjunatha K R on 28 November, 2023

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                                                          NC: 2023:KHC:43194
                                                          MFA No. 52 of 2022




                          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. 52 OF 2022 (MV-I)
                     BETWEEN:

                           RAVI R.K.,
                           S/O CHANDRACHAR,
                           AGED ABOUT 47 YEARS,
                           R/AT VADAKESHETTAHALLI,
                           BOOKANAKERE HOBLI,
                           K.R. PETE TQ,
                           MANDYA DISTRICT - 571 426.
                                                                   ...APPELLANT
                     (BY SRI. PRAKASHA H.C., ADVOCATE)
                     AND:

                     1.    MANJUNATHA K.R.,
                           S/O RAJU,
                           MAJOR,
                           R/AT KOTHAMARANAHALLI,
                           RANGANATHAPURA POST,
                           SANTHEBACHAHALLI HOBLI,
Digitally signed by        K.R. PETE TQ,
MALA K N                   MANDYA DISTRICT - 571 426.
Location: HIGH COURT
OF KARNATAKA         2.    THE MANAGER,
                           ROYAL SUNDARAM GENERAL
                           INSURANCE CO.LTD.,
                           NO. 133, 3RD FLOOR,
                           SHIKA TOWERS,
                           RAMAVILAS ROAD,
                           MYSURU - 570 024.
                                                             ...RESPONDENTS

                     (BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR R2;
                         VIDE ORDER DATED:28.02.2023, NOTICE TO
                         R1 IS DISPENSED WITH)
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                                            NC: 2023:KHC:43194
                                            MFA No. 52 of 2022




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.08.2021 PASSED IN MVC
NO. 835/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT
JUDGE AND MEMBER, MACT, MYSURU, 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

In this appeal, the petitioner has challenged the

judgment and Award dated 06.08.2021 in

MVC.No.835/2019 passed by the VII Additional District

Judge, Mysuru ('the Tribunal' for short).

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 01.06.2019, at

7.45 P.M., near AkkiHebbalu Railway Station the petitioner

met with an accident while riding his motor cycle bearing

registration No.KA-54-E-5858 hit by a tipper lorry bearing

registration No.KA-54-0648 injuring the petitioner. After

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taking treatment at Government Hospital, K.R. Pet, St.

Joseph Hospital, Mysuru, he approached the Tribunal

seeking grant of compensation of Rs.26,50,000/-. Claim

was opposed by the Insurance Company. After taking the

evidence, the Tribunal passed the impugned judgment

assessed compensation of Rs.5,86,425/-, deducted 10%

(Rs.58,642.50) towards contributory negligence by the

petitioner and awarded a sum of Rs.5,27,800/- with

interest at 6% per annum. Pleading inadequacy,

challenging the attribution of contributory negligence and

seeking enhancement, the petitioner has filed this appeal

on various grounds.

4. Heard Sri. Prakash H.C., learned counsel for the

petitioner and Sri. C.R. Ravishankar, learned counsel for

the Insurance Company.

5. It is the contention of the learned counsel for

the petitioner that, the accident took place due to

complete negligence on the part of the tipper lorry. The

petitioner was not left with any place to pass the bike. The

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Tribunal has attributed 10% contributory negligence

erroneously on the ground of admission made by the

petitioner in the Cross-Examination. Further it is

contended that the petitioner has suffered two fractures.

He was a carpenter by profession earning Rs.30,000/- per

month. Medical evidence is placed before the Tribunal

explaining the petitioner suffering 30% each limb disability

due to both the fractures. The Tribunal has taken 12%

disability instead of 20%. The Tribunal assessed the

notional income at Rs.11,000/- per month on the lesser

side. The notional income for a person with no proof of

income for the accident of the year 2014 is assessed at

Rs.14,000/-. Hence, the learned counsel seeks for

enhancement and to set-aside the contributory negligence.

6. Per contra, Sri. C.R. Ravishankar, leraned

counsel for the Insurance Company has contended that

the petitioner without holding Driving License has brought

the motor cycle on the road, thereby he has contributed

his negligence. The tipper was coming from opposite

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direction, at the place of accident, there is a foot path,

since the petitioner was new to ride the motor cycle, the

attribution of 10% contributory negligence is not sufficient,

it shall be 40%. The assessment of disability has correctly

made by the Tribunal as 12% and there is no need for

enhancement. In his usual fairness submit that income at

Rs.14,000/- per month may be taken for assessment of

disability and taking 40% contributory negligence, the

compensation may be determined.

7. I have given my anxious consideration to the

arguments addressed on behalf of both the parties and

perused the materials on record.

8. The material on record point out that there was

an accident occurred on 01.06.2019 at K.R. Pet Road at

Akkihebbalu. The width of the road is 18%, accident took

place 171/2 feet towards right of the road which means the

tipper consumed 17.5 feet of road, only 1/2 feet was road

was left to pass the bike pointing that the tipper had

consumed the complete width of the road. The Tribunal

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attributed 10% of the contributory negligence by placing

reliance on the admission of the petitioner in the Cross-

Examination that he was not holding the Driving License to

ride the motor cycle. The evidence did not point out that

the accident was occurred on account of not having

driving license by the petitioner. Hence, it is not convinced

that how the Tribunal attributed 10% contributory

negligence against the petitioner when he has not

committed any fault.

9. The medical records points out that the

petitioner suffered comminuted fracture of tibia and fibula

right leg and comminuted fracture of 3rd right metacarpal

bone. He was under hospitalization for 10 days, spent

huge money towards treatment. The Tribunal has

considered and reimbursed the entire medical expenses.

10. The main issue is regarding inadequate

compensation under the head loss of income due to

disability, loss of amenities and discomfort and loss of

income during laid up period. The petitioner was aged

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about 45 years, he was a carpenter by profession. In the

year 2019, for a person with no proof of income, the

notional income is assessed at Rs.14,000/- per month. The

Tribunal has taken Rs.11,000/- per month which is on the

lesser side, that has to be corrected.

11. PW2 - Dr. Kumar who has given his evidence

before the Tribunal stating that the petitioner has suffered

limb disability of 60% and the Tribunal has considered

only at 12% which is on the lesser side. Having regard to

the two fractres and the treatment taken, the Tribunal

ought to have taken the disability at 15% per annum

instead of 12% per annum. The compensation towards

Pain and Agony assessed at Rs.70,000/- is on the higher

side and the same is fixed at Rs.60,000/-. The

compensation awarded towards medical expenses,

attendant charges and food and nourishment, travelling

expenses is kept in tact. The compensation awarded under

the head 'loss of income during treatment period' is on the

lower side. Due to injuries, the petitioner has not attended

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to his work at least for a period of six months. Hence a

sum of Rs.84,000/- (Rs.14,000x6 months) as against

Rs.44,000/- awarded by the Tribunal. The compensation

awarded under the head 'loss of amenities' and discomfort'

is enhanced to Rs.50,000/- as against Rs.30,000/-. A sum

of Rs.30,000/- awarded by the Tribunal under the head

'Future Medical Expenses' is retained as it is. As regard the

Loss of future income, the Tribunal has not taken the

future prospects, hence, 25% of his income is to be added

towards Future prospects, which come to Rs.3,500/-. The

multiplier applicable to his age is 14. Hence, the

compensation under the head loss of future income is re-

assessed as under.

Rs.14,000/- + Rs.3,500 =Rs.17,500/-

Rs.17,500x12x14x15% = Rs.4,41,000/-

In all, the petitioner is entitled for a total

compensation of Rs.8,55,665/- as against Rs.5,27,782/-

awarded by the Tribunal, under the following heads :

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SL.NO. PARTICULARS AMOUNT (in RS.) 01 Pain and Agony 60,000-00 02 Medical Expenses 1,68,665-00 03 Attendant charges, food and 22,000-00 nourishment/conveyance charges 04 Loss of Future Income/Disability 4,41,000-00 05 Loss of income during laid up 84,000-00 period 06 Loss of amenities and discomfort 50,000-00 07 Future Medical Expenses 30,000-00 TOTAL 8,55,885-00

It is the just compensation in the facts and

circumstances of the case. The appeal deserves merits

consideration. In the result, following :