Karnataka High Court

Rama Murthy vs United India Insurance on 12 February, 2024

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                                                        NC: 2024:KHC:5898
                                                    MFA No. 8802 of 2015




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 12TH DAY OF FEBRUARY, 2024

                                        BEFORE
                        THE HON'BLE MR JUSTICE C.M. POONACHA
                  MISCELLANEOUS FIRST APPEAL NO. 8802 OF 2015 (MV-I)
             BETWEEN:

             1.    RAMA MURTHY
                   S/O MOHAN
                   AGED ABOUT 23 YEARS,
                   R/AT NO.890 B, 4TH CROSS
                   VIJAYANANADA NAGAR,
                   BANGALORE,
                   WEST RANGE,
                   BANGALORE-560096
                                                              ...APPELLANT
             (BY SRI. K.V. NAIK., ADVOCATE)

             AND:

             1.    UNITED INDIA INSURANCE COMPANY LTD
                   MVC TP HUB, KRISHI BHAVAN,
                   HUDSON CIRCLE,
                   BANGALORE 560001
Digitally
signed by
BHARATHI S   2.    MR B G KEERTHI RAO
Location:
HIGH COURT         S/O GOVINDA RAO ,
OF                 R/AT BENNUR VILLAGE
KARNATAKA
                   ATTIKATTE POST,
                   KADABA HOBLI,
                   GUBBI TALUK,
                   TUMKUR DISTRICT-572216
                                                           ...RESPONDENTS
             (BY SRI. P B RAJU., ADVOCATE FOR R1
              R2 SERVED AND UNREPRESENTED)

                  THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
             JUDGMENT AND AWARD DATED 27.12.2014      PASSED IN MVC
             NO.2590/2013  ON THE FILE OF THE VIII ADDITIONAL SMALL
             CAUSES JUDGE & XXXIII ACMM & MEMBER, MACT (SCCH-5),
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                                                                NC: 2024:KHC:5898
                                                          MFA No. 8802 of 2015




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:


                                           ORDER

The above appeal is filed by the claimant challenging the

judgment and award dated 27.12.2014 passed in MVC

No.2590/2013 by the VIII Additional Small Causes Judge and

the Motor Accident Claims Tribunal (SCCH-5), Bengaluru1, on

negligence as well as seeking enhancement of the

compensation awarded.

2. For the sake of convenience, the parties herein are

referred as per their rank before the Trial Court.

3. It is the case of the claimant that on 13.4.2013

when he was crossing the road, a car bearing No.KA-50/M 368

being driven in a rash and negligent manner hit the claimant

causing the accident in question wherein, he sustained grievous

injuries. Claiming compensation for the same, the claimant

filed a claim petition arraying the insurer and owner of the car

as respondent Nos.1 and 2 respectively. The respondents

Hereinafter referred to as the 'Tribunal'

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entered appearance and the first respondent - insurer filed

statement of objections and contested the claim of the

claimant.

4. The claimant examined himself as PW.1 and Medical

Record Officer of the Hospital as PW.2. Exs.P1 to P12 were

marked in evidence. No oral or documentary evidence was

adduced by the respondents. The Tribunal by its judgment and

award dated 27.12.2014 recorded a finding that the claimant

himself had contributed to causing the accident in question and

negligence of the claimant was assessed at 50%. The

compensation was assessed in a sum of `1,25,000/- and 50%

was awarded to the claimant in a sum of `62,500/- together

with interest at 8% and the first respondent - insurer was

directed to pay the compensation awarded. Being aggrieved,

the claimant has filed the above appeal challenging the finding

of the Tribunal on negligence as well as seeking for

enhancement of the compensation awarded.

5. Learned counsel for the appellant submits that the

finding of the Tribunal on negligence is erroneous having regard

to the admitted position that the driver of the car was charge

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sheeted. He further submits that the compensation awarded is

on the lower side.

6. Per contra, learned counsel for the insurer justifies

the judgment and award of the Tribunal and seeks for dismissal

of the above appeal.

7. The submissions of both the learned counsel have

been considered and the material on record including the

records of the Tribunal have been perused. The questions that

arise for consideration are:

i) Whether the finding on negligence recorded by the Tribunal is erroneous and liable to be interfered with?

ii) Whether the quantum of compensation awarded is required to be enhanced?

Re. Question No.(i)

8. The claimant in his cross-examination has admitted

that the spot where the accident had occurred was an express

way and the place where he was crossing the road there was

no zebra crossing in the said path. Hence, the Tribunal has

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recorded a finding that the claimant was negligent at 50% in

causing the accident.

9. It is relevant to note that the charge sheet has

been filed against the driver of the car. Further, the claimant

has specifically stated in his claim petition and in his testimony

that the accident had occurred due to rash and negligent

driving of the driver of the car. The insurer has not produced

any document to disbelieve the said version of the claimant.

The driver of the car has also not been examined.

10. The only ground on which the negligence at 50%

has been fastened on the claimant is due to the fact that he

has stated that the road which he was crossing was an express

way and there was no zebra crossing at the spot where he was

crossing the road. Taking the said fact into consideration

holding negligence of the claimant at 50% is ex facie erroneous

and liable to be interfered with. Having regard to the

aforementioned factual scenario, it is just and proper that

negligence of the claimant be reassessed as 25% and

negligence on the driver of the car as 75%. Accordingly,

question No.(i) is answered partly in the affirmative.

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Re. Question No.(ii)

11. The claimant is aged 21 years. He is stated to be

an onion vendor. In the claim petition, the claimant has

averred his income to be `9000/- pm. However, no documents

have been produced to prove the income. Having regard to the

same, the income of the claimant is to be reassessed as

notional income as per the chart followed for settlement of

claims in Lok Adalath conducted by the Legal Services Authority

and having regarding to the date of accident i.e., 13.4.2013 the

income is assessed as `8000/- pm.

12. It is forthcoming from a perusal of the wound

certificate (Ex.P5), invoice of Saptagiri Hospital (Ex.P12) and

the case sheet of the hospital (Ex.P11) that the claimant

sustained fracture of right fore arm and laceration of the right

eye brow, both of which were categorized as grievous injuries

and another simple injury. The claimant was admitted to the

hospital on 13.4.2013 and discharged on 22.4.2013 and the

fracture has been surgically treated. The claimant has taken

treatment as an inpatient for a period of 9 days. The claimant

has produced medical bills for a total sum of `17,830/-. In

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view of the aforementioned, the compensation is reassessed as

follows:

12.1 The Tribunal has awarded a compensation of

`50,000/- towards pain and suffering, `25,000/- towards

medical expenses and `50,000/- towards loss of amenities

which are just and proper.

12.2 However, it is noticed that the Tribunal has not

awarded any amount towards loss of income during laid up

period. Having regard to the nature of injuries sustained, the

laid up period is taken as two months and compensation is

awarded under the said head in a sum of (`8000x2) `16,000/-.

13. In view of the aforementioned, the total

compensation under various heads is reassessed as follows:

Sl.No. Heads Amount awarded Amount awarded by the Tribunal (`) by this Court (`)

1. Pain and suffering 50000.00 50000.00

2 Medical expenses 25000.00 25000.00

3 Loss of amenities 50000.00 50000.00

4 Loss of income 0.00 16000.00 during laid up period

Total 125000.00 141000.00

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14. In view of the fact that the finding of the Tribunal

on negligence is held at 75% on the driver of the car, the

claimant is entitled to 75% of the compensation assessed i.e., a

sum of (`141000x75%) `1,05,750/- together with interest at

6% p.a. Accordingly, question No.(ii) is answered in the

affirmative.

15. In view of the aforementioned, the following:

ORDER

i) The appeal is allowed in part;

ii) The judgment and award dated 27.12.2014 passed in MVC No.2590/2013 by the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-5), Bengaluru, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

iii) The claimant is entitled to a total compensation in a sum of `1,05,750 /- with interest at 6% per annum from the date of petition till its realization;

iv) Respondent No.1 - insurer is directed to deposit the balance compensation amount after deducting the

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amount already deposited pursuant to the judgment and award passed by the Tribunal. The balance compensation amount together with accrued interest shall be deposited before the Tribunal within a period of eight weeks from the date of receipt of a copy of this judgment;