Karnataka High Court
Keshav Mahadev Dhulup vs Parasharam Krishna Bacholkar on 12 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3393
MFA No. 23968 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.23968 OF 2012 (MV-I)
BETWEEN:
SRI. KESHAV MAHADEV DHULUP
AGE: 27 YEARS,
OCC: CEMENT FABRICATION (NOW NIL),
R/O: AVEDA, TQ: JOIDA, DIST: KARWAR,
NOW RESIDING AT
C/O: VINAYAK PRAKASH JADHAV
PUJARI MALA, GAJANAN NAGAR,
GIT ROAD, MAJAGAON, BELAGAVI.
...APPELLANT
(BY SRI. YASH NADAKARNI, ADVOCATE FOR
SRI. VITTHAL S.TELI, ADVOCATE)
AND:
1. SRI. PARASHARAM KRISHNA BACHOLKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: JANATA COLONY, AT: SHINGANKOPPA,
POST: IDDALHOND, TQ: KHANAPUR,
DIST: BELAGAVI.
BHARATHI
HM 2. THE DIVISIONAL MANAGER,
Digitally signed by
BHARATHI H M
RELIANCE GENERAL INSURANCE CO. LTD.,
Date: 2024.02.21
11:58:29 +0530 THROUGH ITS DIVISIONAL OFFICE,
KOLHAPUR CIRCLE, NEHRU NAGAR,
BELAGAVI.
...RESPONDENTS
(BY SRI. MALLIKARJUN B.MADANALLI, ADVOCATE FOR
SRI. NAGARAJ C.KOLLOORI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS M.F.A. IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED:31.03.2012 PASSED IN MVC
NO.922/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-II AND MEMBER, ADDL. MACT, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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NC: 2024:KHC-D:3393
MFA No. 23968 of 2012
THIS M.F.A., COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Yash Nadakarni, learned counsel for the
appellant and Sri.Mallikarjun B. Madanalli, learned counsel
representing on behalf of Sri.Nagaraj C. Kolloori, learned
counsel for respondent No.2.
2. Appeal is filed by the claimant, seeking enhanced
compensation and setting aside the contributory negligence of
25% attributed to the claimant, in respect of judgment and
award passed in MVC No.922/2011 dated 31.03.2012 on the
file of Fast Track Court II and AMACT, Belgaum.
3. Brief facts of the case are as under:
Sri.Keshav Mahadev Dhulup being a pedestrian, waiting
for a bus, met with an accident on account of rash and
negligent driving by the driver of the motorcycle bearing
No.KA-22/S-7963 at about 9.45 p.m.
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4. He was shifted to the hospital and took treatment.
At the time of treatment, Doctor noted that the claimant was
under the influence of alcohol.
5. Therefore, claim petition on contest, came to be
allowed in a sum of Rs.1,31,500/- and 25% contributory
negligence is to be attributed to the claimant himself as under:
Sl.No. Heads Amount
(Rs.)
1 Towards pain and 40,000
suffering
2 Towards medical bills 4,510
3 Towards disability 81,000
4 Towards attendant and 5,000
diet charges
5 Towards conveyance 1,000
Total 1,31,510
6. Sri.Yash Nadakarni, learned counsel for the
appellant, reiterating the grounds urged in the appeal
memorandum, contended that since the claimant is a
pedestrian, the attribution of 25% of contributory negligence
needs interference by this Court, as he is not responsible for
the accident and it is the rider of the motorcycle, who was
responsible for the accident.
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7. He also contended that charge sheet came to be
filed against the rider of the motorcycle and therefore,
attributing 25% contributory negligence to the injured, is
incorrect.
8. Further, he pointed out that on the question of
quantum of compensation, Tribunal has not taken the income
properly and so also disability factor. Therefore, there is a
scope for enhanced compensation.
9. He further contended that on the head of
conveyance, attendant and diet charges, the Tribunal has not
granted proper compensation for attendant and diet charges.
10. He also invited the attention of this Court that the
Tribunal has not granted any amount on the head of loss of
income during the laid up period and sought for enhanced
compensation.
11. Per contra, Sri.Mallikarjun B. Madanalli, learned
counsel supported the impugned judgment stating that the
pedestrian was waiting for a bus and had come on the road for
taking a drop from the upcoming vehicle and the incident has
occurred at 9.40 p.m. Therefore, attribution of contributory
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negligence to the extent of 25% to the claimant is perfectly
justified. More so, when the claimant was under the influence
of liquor and was not able to have proper sense, as to the
movement of the traffic on the road.
12. Insofar as quantum of compensation is concerned,
Sri.Mallikarjun B. Madanalli, learned counsel contended that as
on the date of passing of the judgment, the principles of law
that was governing the grant of compensation, has been
applied by the Tribunal and sought for dismissing the appeal.
13. In view of the rival contentions of the parties, this
Court perused the material on record, meticulously.
14. On such perusal of the material on record, even
though the charge sheet is filed against the rider of the
motorcycle, in the wound certificate itself, it is found that
injured was under the influence of liquor. Therefore, he would
not have proper senses with regard to the moving traffic.
15. The material on record also indicates that incident
has occurred not on the side of the road but it is on the road
itself. If the claimant was waiting for a bus, he should have
NC: 2024:KHC-D:3393
been in the bus shelter or on the footpath. Why he has come
on the road and met with an accident is not placed.
16. Under such circumstances, the theory put forth on
behalf of the Insurance Company gets probablized that the
claimant went on the road, seeking for a drop from the passing
vehicle.
17. Therefore, there is no scope for reducing
contributory negligence.
18. Insofar as quantum of compensation is concerned,
Tribunal has not taken proper income and also has assessed
the disability factor.
19. Therefore, there is a case made out for the
enhanced compensation, on the ground of loss of income due
to disability and so also, on the ground of attendant and diet
charges, conveyance and there is no amount awarded on the
head of loss of income during the laid up period.
20. Taking note of these aspects of the matter,
enhancing the amount of Rs.1,00,000/- over and above, sum
of Rs.1,31,510/- would meet the ends of justice.
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21. Accordingly, there is a case made for enhanced
compensation. Hence, following:
ORDER
i. Appeal is allowed in part as against sum of
Rs.1,31,510/- claimant is entitled to
Rs.2,31,510/- with interest at 9% p.a.
ii. The contributory negligence of 25% on the
claimant is maintained.
iii. No order as to costs.
Sd/-
JUDGE
KAV
