Karnataka High Court
Mr. Jagadish Shetty vs Mr. Raju Poojary on 2 August, 2024
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NC: 2024:KHC:30746
MFA No. 10441 of 2013
C/W MFA No. 221 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 10441 OF 2013 C/W
MFA NO. 221 OF 2014 (MV-I)
IN MFA NO. 10441/2013
BETWEEN
THE BRANCH MANAGER
NATIONAL INSURANCE CO LTD
IST FLOOR, EMJAYS COMPLEX
OPP:NETHRAVATHI BUILDING
BALMATTA, MANGALORE TALUK
BY NATIONAL INSURANCE CO LTD
REGIONAL OFFICE, NO.144
SUBHARAM COMPLEX, M G ROAD
BANGALORE-560 001,BY ITS MANAGER ...APPELLANT
(BY SRI. O MAHESH., ADV.[VC])
AND:
1. MR JAGADISH SHETTY
AGED ABOUT 46 YEARS
Digitally signed by S/O LATE DEJU SHETTY
PRAJWAL A R/A SHREE NANDINI
Location: HIGH COURT NEAR GANESH BAJANA
OF KARNATAKA MANDIRA, GANESH NAGARA
KODICAL, MANGALORE TALUK-575 001
2. MR RAJU POOJARY
AGED ABOUT 57 YEARS
S/O BABU POOJARY
R/A MARINE ENGINEERING
DEPARTMENT, NMPT, PANAMBUR
MANGALORE TALUK-575 001
3. MR NEELESH KUMAR
AGED ABOUT 42 YEARS
S/O RAVINDRA BOLOOR
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MFA No. 10441 of 2013
C/W MFA No. 221 of 2014
R/A D.NO.07-01-128-7
" ANURAG" SULTHAN
BATHERY ROAD, BOLOOR
MANGALORE TALUK-575 001
4. UNITED INDIA INSURANCE CO LTD
SALDHANA BUILDING, BRIDGE ROAD
BALMATTA, MANGALORE TALUK-575 001
BY ITS BRANCH MANAGER ...RESPONDENTS
(BY SRI. G RAVISHANKAR SHASTRY, ADV. FOR R1;
R2 AND R3 SERVED AND UNREPRESENTED;
SRI. S. KRISHNA KISHORE, ADV. FOR R4)
IN MFA NO. 221/2014
BETWEEN
MR. JAGADISH SHETTY
S/O LATE DEJU SHETTY
AGED ABOUT 47 YEARS
R/AT SHREE NADINI
NEAR GANESH BAJANA MANDIRA
GANESH NAGARA, KODICAL
MANGALORE TALUK, D.K. DISTRICT - 575 013
...APPELLANT
(BY SRI.RAVISHANKAR SHASTRY G., ADV.)
AND:
1. MR RAJU POOJARY
S/O BABU POOJARY
AGED ABOUT 58 YEARS
R/A MARINE ENGINEERING
DEPARTMENT, NMPT, PANAMBUR
MANGALORE TALUK
D.K.DISTRICT -575 005
2. THE NATIONAL INSURANCE CO. LTD.
1ST FLOOR, EMJAYS COMPLEX
OPP:NETHRAVATHI BUILDING
BALMATTA, MANGALORE TALUK
D.K.DISTRICT, REP. BY ITS
BRANCH MANAGER - 575 003
-3-
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MFA No. 10441 of 2013
C/W MFA No. 221 of 2014
3. MR NEELESH KUMAR
S/O RAVINDRA BOLOOR
AGED ABOUT 43 YEARS
R/A D.NO.07-01-128-7
" ANURAG" SULTHAN
BATHERY ROAD, BOLOOR
MANGALORE TALUK-575 004
4. UNITED INDIA INSURANCE CO LTD
SALDHANA BUILDING, BRIDGE ROAD
BALMATTA, MANGALORE TALUK-575 001
D.K.DIST-575 003, BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI. O.MAHESH, ADV. FOR R2;
R1 AND R3 ARE SERVED VIDE ORDER DATED 2.8.2024;
SRI. S. KRISHNA KISHORE, ADV. FOR R4)
THESE MFAs ARE FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 1.8.2013
PASSED IN MVC NO.380/2012 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, MACT, JMFC, MANGALORE,
D.K., AWARDING A COMPENSATION OF RS.92,760/- WITH
INTEREST @ 6% P.A ON RS.42,520/- FROM THE DATE OF
PETITION TILL REALIZATION AND IN MFA 221 OF 2014 PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these two appeals, the judgment and award
dated 01.08.2013 passed in M.V.C.No.380/2012 by the
Motor Vehicle Accident Claims Tribunal and III Addl.
Senior Civil Judge, Mangalore, D.K ('the Tribunal' for
short) is challenged.
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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, there was an
accident involving the motor cycle bearing Reg.No.KA-
19/EB-2458 and car bearing Reg.No.KA-19/M-4781
that had occurred at about 7.30 p.m. on 25.11.2011
near Urva Canara High School Junction, Mannagudda,
Mangalore City. The injured petitioner was the pillion
rider of the motor cycle. First respondent was the
owner of the car, second respondent was the insurer,
third respondent is the owner and fourth respondent is
the insurer of the motor cycle before the Tribunal.
After taking treatment at Tejasvini Hospital & SSIOT,
Mangalore, the petitioner has approached the Tribunal
for grant of compensation of Rs.8 lakhs. Claim was
opposed by the Insurance Company of the motor cycle.
After taking the evidence and hearing both parties, the
Tribunal by impugned judgment allowed the claim
petition awarding compensation of Rs.92,760/- with
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interest @ 6% p.a. The Insurance Company has
challenged the impugned judgment on the ground of
quantum of compensation and negligence on the part
of the rider of the motor cycle in M.F.A.No.10441/2013
whereas the injured petitioner pleading inadequacy
and seeking enhancement is before this Court in
M.F.A.No.221/2014.
4. Heard the arguments of Sri.O.Mahesh, learned
counsel for the Insurance Company of the car,
Sri.G.Ravishankar Shastry, learned counsel for the
petitioner and Sri.S.Krishna Kishore, learned counsel
for the Insurance Company of the motor cycle.
5. It is contended by Sri.O.Mahesh with reference
to Ex.P5/sketch that where the place of accident is a
junction, the car was on the main road, motor cycle
was crossing the main road. As per Road Regulation
Nos.8 and 9, it is the duty of the rider of the motor
cycle to be cautious while crossing the road, he has to
wait for passing of the vehicles on the road, when the
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road is clear then only he has to pass through the
junction. Contrary to the same, the motor cycle was
ridden on the other side of the road where the car was
coming after passing over the road hump and hit
against the car. The front bumper of the car has been
damaged. This clearly indicates that complete
negligence is on the part of the rider of the motor
cycle, but the Tribunal did not consider this aspect of
the matter and fastened complete negligence against
the driver of the car.
5.1. It is further contended that the medical
evidence suggests 12% limb disability whereas, the
Tribunal has taken 7% whole body disability, which
ought to have been taken not more than 3%. 3%
disability is not affecting the earning capacity of the
petitioner. The Tribunal has committed an error in
awarding compensation for loss of future income and
sought for interference.
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6. Per contra, learned counsel for the petitioner
has contended that at the place of accident, the width
of the road is 48 feet. The motor cycle had crossed
almost 40 feet, it was about to pass through the
junction. Inspite of road humps, the car came in such
a speed that it has hit against the middle portion of the
motor cycle causing injury to the pillion rider. There
was no damage to the right portion of the car. The
damage caused to the front bumper of the car clearly
points out that the car had hit against the pillion rider
of the motor cycle. The Tribunal has rightly considered
that there is no contributory negligence. Even if the
Road Regulations are applied to this case, the rider of
the motor cycle was crossing the junction when there
was no vehicle; if all of a sudden the car came and hit
against the motor cycle, violation of the road
regulations is on the part of the driver of the car.
6.1. It is further contended that the medical
evidence placed through PW-2 clearly points out the
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whole body disability of 12%, but the Tribunal has
taken only 7%. The injured was treated by
Dr.Shantharam Shetty, well known Orthopedician of
Mangalore and the disability certificate is also issued to
that effect. The petitioner was under hospitalization
for 20 days. The injured is a lorry driver and even a
person with no proof of income will earn not less than
Rs.10,000/-. The Tribunal has taken Rs.4,500/- on the
lower side and sought for enhancement of
compensation.
7. Learned counsel for the Insurance Company
of the motor cycle has contended that even the road
regulations is applied to the case on hand by referring
to the spot sketch and the damage in the IMV report, it
is very clear that it is the car, which hit against the
motor cycle and not the motor cycle. If the driver of
the car was cautious, he could have avoided the
accident. For this reason, the investigation has
brought him before the Magistrate to face the trial for
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the actionable negligence. The Tribunal has rightly
considered that the rider of the motor cycle has not
attributed any negligence and fastened liability against
the car.
8. I have given my anxious consideration to the
arguments addressed on behalf of the parties and also
perused the materials on record.
9. The only dispute is regarding quantum of
compensation and contributory negligence on the part
of the rider of the motor cycle. As regards contributory
negligence is concerned, on careful perusal of the spot
mahazar and also sketch at Exs.P4 and P5, it is
pertinent to note that the accident took place near
Urva Canara High School Junction, Mannagudda,
Mangalore City. At the spot, the main road is straight
running South to North. The width of the road is 48
feet. There is maiden on the middle of the road for 24
feet. The motor cycle was crossing from Nehru Avenue
towards Parke. The motor cycle has passed 40 feet off
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the road at the junction. There is a road hump for the
car before entering the junction. The motor cycle is
about to cross just 8 feet, at that time, car came to the
junction and hit against the motor cycle. The IMV
report clearly points out the damage to the mud guard
of the car and there is no damage on the left side of
the motor cycle as the car hit against the left leg of the
injured for which he has suffered fracture of both
bones of left leg. During the course of cross-
examination of the petitioner on behalf of the
Insurance Company of the car, there is no attribution
of contributory negligence. Hence, the evidence on
record speaks and persuades that it is not a case of
contributory negligence on the part of the rider of the
motor cycle. Complete negligence is on the part of the
driver of the car. Accordingly, negligence aspect is
answered.
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10. As regards quantum of compensation is
concerned, the Tribunal has awarded compensation as
follows:
Sl. No. Particulars Rs.
1 Pain and suffering 15,000/-
2 Medical expenses 24,520/-
3 Incidental charges 5,000/-
4 Loss of income during treatment 16,500/-
period
5 Loss of future income due to 30,240/-
disability
6 Conveyance charges 1,500/-
TOTAL 92,760/-
11. The Tribunal did not award any compensation
towards loss of amenities and discomfort. The Tribunal
has taken Rs.4,500/- as the notional income of the
petitioner and assessed 7% whole body disability and
applied '14' multiplier for the age of 45 and determined
the future loss of income. The compensation awarded
towards pain and suffering is inadequate. In a case of
this nature, the petitioner is entitled to just
compensation and compensation shall not be a peanut
nor a bonanza. The petitioner was under
hospitalization for 20 days, he was to take rest for
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minimum of four months for resuming to his work as a
lorry driver. Hence, the compensation has to be
assessed keeping in mind the totality of the case. The
petitioner though claimed huge medical bills, the
medical expenses through private insurance has been
reimbursed. The balance of medical bills constitute
only Rs.4,520/- which needs to be reimbursed. Hence,
the petitioner has to be awarded Rs.40,000/- towards
pain and suffering; attendant charges and food and
nourishment at Rs.10,000/-; loss of income during laid
up of four months at Rs.6,500/- per month i.e.,
Rs.26,000/-; the conveyance expenses at Rs.1,500/-;
loss of amenities and discomfort at Rs.30,000/-;
medical evidence points out that the petitioner requires
Rs.25,000/- for future medical expenses. The Tribunal
has considered it at Rs.20,000/- and the same is kept
in tact. Insofar as loss of future income is concerned,
the Tribunal has rightly considered disability at 7% to
the whole body and in the year 2011, a person with no
proof of income will earn not less than Rs.7,500/- per
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month. Hence, loss of future income will be Rs.6,500/-
x12x14x7% = Rs.76,440/-. Thereby the total
compensation comes to Rs.2,08,460/- as against
Rs.92,760/- awarded by the Tribunal as tabled
hereunder:
Sl. No. Particulars Rs.
1 Pain and suffering 40,000/-
2 Medical expenses 4,520/-
3 Incidental charges 10,000/-
4 Loss of income during 26,000/-
treatment period
5 Loss of future income due to 76,440/-
disability
6 Conveyance charges 1,500/-
7 loss of Amenities and 30,000/-
discomfort
8 Future medical expenses 20,000/-
TOTAL 2,08,460/-
Less: Compensation 92,760/-
awarded by the Tribunal
Enhanced by 1,15,700/-
This is the just compensation that the petitioner would
be entitled to, in the facts and circumstances of the
case.
12. In view of the negligence is answered against
the car, the owner and the insurer of the car are liable
to pay compensation and the Insurance Company of
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the car has to indemnify the insured. Accordingly,
M.F.A.No.10441/2013 filed by the Insurance Company
is devoid of merits. M.F.A.No.221/2014 filed by the
petitioner merits consideration, in the result, the
following:
ORDER
i) MFA No.10441/2013 is dismissed;
ii) MFA No.221/2014 is allowed-in-part;
ii) Impugned judgment and award is
modified;
iv) Petitioner is entitled to enhanced
compensation of Rs.1,15,700/- with
interest of 6% p.a. from the date of
petition till the date of deposit, excluding
interest on future medical expenses;
v) Respondent Nos.1 and 2/owner and the
insurer of the car are directed to deposit
the above compensation along with
accrued interest within eight weeks from
the date of receipt of certified copy of the
judgment.
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vi) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
KNM
