Karnataka High Court

Shri Kenchappa S/O Hanamant Soraganvi vs Shri Rangappa S/O Bhimappa Hallur on 8 April, 2024

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                                                   NC: 2024:KHC-D:6295-DB
                                                        MFA No. 102018 of 2022




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                               DATED THIS THE 8TH DAY OF APRIL, 2024
                                              PRESENT
                                  THE HON'BLE MR JUSTICE M.I.ARUN
                                                 AND
                               THE HON'BLE MR JUSTICE UMESH M ADIGA
                        MISCELLANEOUS FIRST APPEAL NO.102018 OF 2022 (MV-I)


                       BETWEEN:
                       SHRI KENCHAPPA S/O. HANAMANT SORAGANVI,
                       AGE: 51 YEARS, OCC: DRIVER (NOW NIL),
                       R/O: WARD NO.08, KALLOLI, TQ GOKAK,
                       DIST: BELAGAVI.
                                                                   ...APPELLANT
                       (BY SRI GURURAJ TURUMARI, ADVOCATE FOR
                           SRI H.D. PATIL, ADVOCATE)

                       AND:
                       1.   SHRI RANGAPPA S/O. BHIMAPPA HALLUR,
                            AGE: MAJOR, OCC: BUSINESS,
                            R/O. A/P: TUKKANATTI, TQ. GOKAK,
VISHAL
NINGAPPA                    DIST. BELAGAVI-591224.
PATTIHAL
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.04.25
12:47:45 +0530

                       2.   THE DIVISIONAL MANAGER,
                            THE NEW INDIA ASSURANCE CO. LTD.,
                            HAVING ITS DIVISIONAL OFFICE AT
                            3933/B2, MOODALAGI BUILDING,
                            2ND FLOOR, CLUB ROAD, BELAGAVI-591224.
                                                                ...RESPONDENTS
                       (BY SMT. PREETI SHASHANK, ADV. FOR RESPONDENT NO.2)
                       (NOTICE TO RESPONDENT NO.1 SERVED)

                            THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                       SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST
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                                 NC: 2024:KHC-D:6295-DB
                                       MFA No. 102018 of 2022




THE JUDGMENT AND AWARD DATED 25.02.2022 PASSED IN
MVC NO.98/2021 ON THE FILE OF THE IV ADDITIONAL
DISTRICT JUDGE AND ADDL. MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, UMESH M ADIGA, J., DELIVERED THE
FOLLOWING:

                           JUDGMENT

This is the claimant's appeal against the Judgment

and Award dated 25.02.2022 passed in MVC No.98/2021

by the IV Additional District Judge and Motor Accidents

Claim Tribunal-V, Belagavi (for short, 'the Tribunal')

praying for enhancement of compensation.

2. For the sake of convenience, we refer to the

parties as per their rank before the Tribunal.

3. Brief facts of the case of both parties are as

under :

It is the case of claimant that on 09.11.2020, the

claimant was going from Khanagaon towards Gokak on

Kolavi to Gokak Road on his motorcycle bearing

registration No.KA-23/U-4886 and he was riding the said

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motorcycle. At about 7.30 p.m., he reached near

Benachinamaradi, a Mahindra Tractor bearing registration

No.KA-49/T-8912 attached with two trailers bearing

Nos.KA-49/TA-2482 and KA-49/TA-2853 loaded with

sugarcane was going ahead of his motorcycle. Driver of

the said Tractor was driving the said vehicle in a very high

speed, rash and negligent manner and abruptly he applied

the break and stopped his vehicle because of which,

claimant has dashed his motorcycle against the rear side

of the Trailer and sustained grievous injuries.

4. It is further case of the claimant that immediately

after the accident, he was shifted to Ganga Surgical and

Fracture Clinic, Gokak and he was admitted as an

inpatient. He underwent surgeries. He had spent more

than Rs.8,00,000/- towards medical expenses.

5. It is further case of claimant that he was aged

about 50 years and working as a Driver and earning

Rs.20,000/- per month. Due to the injuries sustained in

the accident, he has been suffering from permanent

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disability and unable to work. With these reasons, claimant

has prayed for awarding compensation of Rs.50,00,000/-.

6. The owner and insurer of the vehicle are

respondents No.1 and 2 and they have filed separate

written statements. Both have denied contents of claim

petition. The owner of vehicle/respondent No.1 has

contended that the vehicle was insured with respondent

No.2 and policy of insurance was in force. Hence,

respondent No.2 be directed to pay compensation, if any

awarded by Tribunal.

7. Respondent No.2-insurer has further contended

that the rider of the motorcycle/claimant had no licence to

ride the motorcycle. The accident had taken place due to

negligence of the claimant. Its liability is restricted to the

terms and conditions of the policy of insurance and hence

prayed to dismiss claim petition.

8. From the rival contentions of parties, the Tribunal

had framed the necessary issues for determination.

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9. The appellant/claimant to prove his case examined

P.W.1 and 2 and got marked Ex.P.1 to Ex.P.16.

Respondents have not led evidence and they got marked

policy of insurance as Ex.R.1 and 2.

10. The Tribunal, after hearing both the parties and

appreciating the pleadings and evidence on record, held

that accident had taken place due to composite negligence

of rider of the motorcycle as well as Driver of the Tractor

and Trailer. The Tribunal has assessed the contributory

negligence in the ratio of 75% : 25%. The Tribunal

considering the evidence available on record, by the

impugned Judgment dated 25.02.2022 awarded the

following amount of compensation.

Pain and sufferings                        Rs.40,000/-
Food and nourishment charges               Rs.10,000/-
Travelling expenses                        Rs.10,000/-
Medical expenses                         Rs.6,22,000/-
Loss of future income                    Rs.7,15,500/-
Loss of pay during laid up period          Rs.39,750/-
                               Total    Rs.14,37,250/-

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11. Being aggrieved by the said Judgment, claimant

has filed this appeal on the ground that the Tribunal has

erred in holding that he has contributed 75% for causing

the accident in question and further contended that

amount of compensation awarded is meagre and prayed

for enhancement of compensation.

12. We have heard the arguments of learned

counsel for both the side.

13. The learned counsel for appellant/claimant

contends that driver of the Tractor and Trailer all of a

sudden and abruptly applied the break, because of which

rider of the motorcycle could not immediately stop his

vehicle and consequently it his against backside of trailer.

Claimant was not at all negligent. The Tribunal has not

properly appreciated the materials produced before it and

came to wrong conclusion. The learned advocate for

appellant has further submitted that amount of

compensation awarded by Tribunal is meagre and prayed

for enhancement.

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14. Learned counsel for the 2nd respondent/insurer

has vehemently contends that complaint was filed by the

brother of claimant. In the said complaint, it is specifically

mentioned that Claimant was riding the motorcycle in high

speed and he could not control his vehicle, when the driver

of Tractor Trailer suddenly stopped the vehicle; Claimant

hit the backside of the Trailer and caused the accident.

The Investigating Officer after detailed enquiry held that

accident had taken place due to contributory negligence of

rider of the motorcycle as well as driver of the Tractor

Trailer and both are responsible for the accident. During

the trial, it is also revealed that rider of the motorcycle

had no valid and effective driving licence to drive that

class of vehicle. Claimant was riding the motorcycle on a

public road without holding proper and valid licence and

caused the accident. Considering these facts, the Tribunal

held that contribution of the claimant is 75% in causing

the accident. Accordingly, order was passed. It does not

call for any interference.

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15. Learned counsel for the appellant has relied on

the Judgment in the case of Kiran vs. Sajjan Singh and

Others, reported in 2014 ACJ 2550. Facts of the said case

are different from facts of the present case. In this case,

Claimant was riding motorcycle on the main road without

holding valid driving licence. His vehicle was going behind

the Tractor Trailer and it appears he did not maintain

proper distance between two vehicle. Due to the same,

accident had taken place. Facts in the referred case are

different. In that case accident had taken place on the

middle of the road. It was head on collusion and there was

an opportunity for the driver of the tractor to avoid the

accident. Hence, law laid down in the referred case is not

applicable to the facts of present case.

16. Learned counsel for the respondent/insurer has

relied on the Judgment of the Hon'ble Supreme Court in

the case of Nisha Singh vs. Oriental Insurance Company

Ltd., reported in AIR 2018 SC 2118, wherein it is held as

under :

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"Motor Vehicles Act (59 of 1988), S.166, S.118-Rules of the Road Regulations (1989), Regn. 23- Compensation - Rash and negligent driving - Distance between vehicles - Plea of claimant that car colliding with truck on account of sudden application of brakes by truck driver - Truck moving ahead of Car - Failure of driver of car to keep sufficient distance between two vehicles - No evidence to indicate that driver of truck, suddenly applied brakes in middle of road - Rash and negligent driving cannot be attributed to truck driver."

17. However, in this case the driver of the tractor

and trailer suddenly applied the break, because of which

rider of the motorcycle could not control his vehicle.

Admittedly, there are no break lights to the trailer. Under

such circumstances, the rider of the motorcycle going from

hind side of the tractor and trailer might not know that

driver of the Tractor would suddenly apply the break and

stop his vehicle. Considering these eventualities and facts

and circumstances of the present case, the Tribunal has

rightly held that due to contributory negligence of the

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driver of the tractor and trailer and rider of motorcycle

accident had taken place and their contribution was in the

ratio of 25:75 respectively, it does not call for any

interference.

18. The rider of the motorcycle did not hold valid

and effective driving licence to drive two wheeler. It is a

high time for the Courts to consider such facts. There are

alarming raise in the motor vehicle accident resulting in

death and injuries to victims of accident. It may be for

different reasons and one among them is not holding of

valid and effective driving licence to drive the vehicle by

the rider or driver of the motorcycle. In this case, rider

himself became victim of the accident. In some of the

cases, due to not having skill of driving and not holding of

valid and effective driving licence accidents were caused.

If such a driver drives his vehicle and causes an accident

resulting death or injuries to the third parties, then owner

or driver of such vehicle or rider of the vehicle does not

deserve any sympathy. The owner should not have given

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his vehicle to a person who is not holding valid and

effective driving licence or skill to drive the vehicle.

Showing too much sympathy to such wrongdoer, would

encourage them to continue such crime at the cost of

society. Therefore, submission of learned counsel for the

appellant in this case that the case of the appellant may

be considered sympathetically since he had sustained

grievous injuries and become partially disabled due to

injuries sustained in the accident cannot be considered.

19. Considering quantum of compensation, amount

awarded by the Tribunal, it appears that Tribunal has not

taken income properly. Accident had taken place during

the year 2020. Admittedly, the claimant is unable to prove

his income and Tribunal has taken notional income as

Rs.13,250/- per month. As per the schedule prepared by

the Karnataka State Legal Services Authority, notional

income of a victim of an accident of the year 2020 is

Rs.13,750/- per month, same could be applied to the facts

of the present case.

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20. The Tribunal has taken functional disability at

the rate of 50% to the whole body. According to the case

of claimant, he had sustained fractures of tibia and fibula

at upper fourth/distal pulsation absent toe movements

absent with cut lacerated wound of 3 X 2 c.m. P.W.2 in his

evidence has stated that claimant is suffering from

permanent disability to an extent of 50% of the right lower

limb.

21. Normally 1/3rd of the same has to be taken to

assess disability to the whole body. The Tribunal did not

consider these facts and it has accepted evidence of P.W.2

as it is, to determine the disability. However, insurer has

not appealed against the said finding and the Tribunal

decided the said matter on merits. Therefore, unless it is

challenged, it does not proper to reconsider the same.

22. The Tribunal has not awarded just compensation

under the head loss of income during laid up period. He

had sustained sever fracture and according to the

conclusion of Tribunal, he has been suffering from

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permanent disability to the extent of 50% to the whole

body. However, the Tribunal has not assessed period

during which claimant could not work properly and lost his

income. Therefore, the said finding is incorrect. The

Tribunal ought to have taken at least six months period,

during which the claimant might not be in a position to

attend his duties.

23. For the aforesaid reasons, the following amount

of compensation is awarded:

      Pain and suffering                     Rs.40,000/-
      Food     and    nourishment            Rs.10,000/-
      charges
      Travelling expenses                    Rs.10,000/-
      Medical expenses                   Rs.6,22,000/-
      Loss of future income              Rs.7,42,500/-
      Loss of income during laid             Rs.82,500/-
      up period.
              Total amount              Rs.15,07,000/-


     24.   Claimant   is   entitled     to   enhancement   of

compensation of Rs.15,07,000/- as against Rs.14,37,250/-

awarded by the Tribunal. In the above paras, it is held

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that claimant had contributed 50% negligence.

Contributory negligence of claimant to cause accident is

75%. Hence, he is entitled for 25% of above said amount

that is Rs.3,76,750/-. Claimant is also entitled for interest

at the rate of 6% per annum on the said amount.

25. For the aforesaid reasons, we pass the following:

ORDER

(i) Appeal is allowed in part.

(ii) The Judgment and Award dated 25.02.2022

passed in MVC No.98/2021 by the IV

Additional District Judge and Motor

Accidents Claim Tribunal-V, Belagavi is

hereby modified.

(iii) The respondent/Insurer is directed to pay

compensation of Rs.3,76,750/- as against

Rs.3,59,312/- awarded by the Tribunal with

interest at the rate of 6% per annum on the

enhanced amount of compensation from