Karnataka High Court

Sri Jayarama Shetty vs Sri Aneesh K J on 13 February, 2024

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                                                      NC: 2024:KHC:6042
                                                   MFA No. 5072 of 2013




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 13TH DAY OF FEBRUARY, 2024

                                    BEFORE
                    THE HON'BLE MR JUSTICE C.M. POONACHA
              MISCELLANEOUS FIRST APPEAL NO. 5072 OF 2013 (MV)

             BETWEEN:

                  SRI JAYARAMA SHETTY
                  S/O NARAYAN SHETY,
                  AGED ABOUT 65 YEARS,
                  R/O GOWRIJALU HOUSE,
                  NELLIYADI POST & VILLAGE,
                  PUTTUR TALUK,
                  D.K DIST-575004
                                                        ...APPELLANT

             (BY MS. SUSHMITHA SURESH, ADVOCATE FOR
                 SRI. CYRIL PRASAD PAIS.,ADVOCATE)

             AND:
             1.   SRI ANEESH K J
                  S/O K J THOMAS,
                  AGED ABOUT 27 YEARS,
Digitally         R/A KAVALKAT HOUSE,
signed by         SHIRADY POST & VILLAGE,
BHARATHI S
                  PUTTUR TALUK,D.K DIST-575 004.
Location:
HIGH COURT   2.   SRI K J THOMAS
OF
KARNATAKA         S/O K J AUGUSTIN,
                  AGED ABOUT 51 YEARS,
                  R/AT KAVALKAT HOUSE,
                  SHIRADY POST & VILLAGE,
                  PUTTUR TALUK,D.K DIST-575 004.
             3.   THE NEW INDIA ASSURANCE CO LTD
                  2ND FLOOR,CENTENARY BUILDING,
                  K.G.H.S ROAD,
                  MANGALORE,D.K-575 005.
                                                    ...RESPONDENTS
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                                                         NC: 2024:KHC:6042
                                                      MFA No. 5072 of 2013




(BY SRI. A. RAVI SHANKAR, ADVOCATE FOR R-3;
    R-1 AND R-2 SERVED AND UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 22.11.2012 PASSED
IN MVC NO. 625/2011 ON THE FILE OF THE ADDL. SENIOR
CIVIL JUDGE AND MACT, PUTTUR, D.K., 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:

                                    JUDGMENT

The above appeal is filed by the claimant

challenging the judgment and award dated 22.11.2012

passed in MVC.No.625/2011 by the Learned Addl.

Senior Civil Judge and Member, MACT. Puttur, D.K1,

challenging the findings of the Tribunal on liability and

seeking for enhancement of compensation.

2. For the sake of convenience, the parties

herein are referred to as per their ranking before the

Tribunal.

Hereinafter referred to as the 'Tribunal'

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3. It is the case of the claimant that on

11.05.2010 when he was driving his motor cycle

towards Uppinangady, at that time, an Auto Rickshaw

moving in the same direction being driven in a rash

and negligent manner without giving any signal took

the vehicle to his right side, causing the accident in

question, as a result of which, the claimant sustained

grevious injuries. Claiming compensation for the

same, the claimant filed a claim petition arraying the

driver, owner and insurer of the offending Auto

Rickshaw as respondent Nos.1, 2 and 3. The claimant

examined himself as PW.1 and a doctor as PW.2.

Exs.P1 to P15 were marked as evidence. Ex.C1 the

case sheet was marked on commission and a copy of

the insurance policy was marked as Ex.R1.

4. The Tribunal, vide its judgment and award

dated 22.11.2012 has recorded a finding that the

claimant, who was the rider of the motor cycle as well

as the driver of the Auto Rickshaw, were negligent to

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the extent of 50% each in causing the accident in

question. Further it assessed the total compensation

as `1,20,000/- and directed respondent No.3-Insurer

to pay 50% of the same i.e., in a sum of `60,000/-

together with interest at 6%p.a.

5. Being aggrieved the claimant has filed the

above appeal challenging the finding of the Tribunal on

the question of negligence as well as, seeking for

enhancement of the compensation.

6. The learned counsel for the

appellant/claimant submitted that the Tribunal has

erroneously recorded the finding of contributory

negligence and fastened 50% of the negligence on the

rider of the motor cycle/claimant without adequately

appreciating the oral and documentary evidence on

record. It is further contended that the quantum of

compensation is required to be enhanced.

7. Per contra, the learned counsel for respondent

No.3-Insurer justifies the findings of the Tribunal on

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negligence as well as with regard to the quantum of

compensation.

8. The submissions of both the learned

counsels have been considered and material on record

including the records of Tribunal have been perused.

The questions that arise for consideration are:

i. "Whether the finding of negligence by the Tribunal is just and proper".

ii. Whether the quantum of compensation awarded by the Tribunal is liable to be enhanced".

Reg. question No.(i)

9. The claimants, in the claim petition has

specifically averred that when he was riding his motor

cycle towards Uppinangady, an Auto Rickshaw without

giving any signal, suddenly took turn to the right side

causing the accident in question. The manner of driving

of the Auto Rickshaw resulting in causing the accident

has also been deposed by PW.1 in his testimony. In

the cross-examination, PW.1 has stated that he saw the

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Auto Rickshaw from a distance of the 40ft. It is further

relevant to note that the spot sketch (Ex.P.4) discloses

that both the vehicles are moving in the same direction

and both the vehicles were on the correct side of the

road. It is clear from the aforementioned that case of

the claimant that the driver of Auto Rickshaw suddenly

took a turn to the right side causing the accident in

question is a more probable version.

10. The Tribunal has recorded a finding of

contributory negligence erroneously noting that the

rider of the motor cycle was on the wrong side of the

road. It is further relevant to note that the rider of

the motor cycle being the claimant has clearly stated in

his testimony with regard to the occurrence of the

accident. The charge sheet has also been filed against

the driver of the Auto Rickshaw. It is also relevant to

note that the driver of the Auto Rickshaw has not been

examined.

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11. In view of the aforementioned, the findings

of the Tribunal regarding contributory negligence is

ex-facie unsustainable and liable to be interfered with.

12. Having regard to the manner of occurrence

of the accident, the negligence is required to be

attributed entirely on the driver of the Auto Rickshaw

and no negligence is required to be attributed to the

claimant i.e., the rider of the motor cycle. Hence,

question No.(i) framed for consideration is answered

in the 'negative'.

Reg. question. No.(ii)

13. The claimant is aged 62 years as on date of

the accident i.e., on 11.05.2010. The claimant is

stated to be carrying on agricultural operations.

However, no documents have been produced to prove

the monthly income. Hence, the income of the

claimant is required to be re-assessed as notional

income as per the chart used for settlement of cases

in Lok-Adalath conducted by the Legal Services

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Authority and having regard to the date of accident

the income is re-assessed at `5,500/-P.M.

14. It is forthcoming from the wound certificate

(Ex.P8) that the claimant has sustained fracture of the

Tibia and Fibula and fracture of the left clavicle as also

fracture of the shaft of the 4th metacarpal bone of left

hand. The claimant has taken treatment as an

inpatient for a total period of nine days. The fractures

has been surgically treated.

15. The doctor has been examined as PW.2 who

has issued the disability certificate (Ex.P.11). The

doctor has assessed the disability at 11% to the left

leg. The Tribunal assessed functional disability at 3%

to the whole body, which is just and proper.

16. In view of the aforementioned the

compensation is re-assessed as follows:

16.1. The compensation of `35,000/-

towards pain and suffering and `60,000/-

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towards medical expenses is just and proper and

no interference with the same is warranted.

16.2. The period of treatment is taken as

three months and hence, the loss of income for

the said period is re-assessed as (5,500 X 3)=

`16,500/- as against `9,000/- awarded by the

Tribunal.

16.3. The Tribunal has awarded a sum of

`2,000/- towards food, nutrition and diet,

`1,000/- towards attendance charges and

`3,000/- towards conveyance. The

compensation on all the said heads is re-

assessed as `15,000/- having regard to the

period of treatment.

16.4. The Tribunal has awarded a sum of

`2,440/- towards loss of amenities. Having

regard to nature of injuries sustained and the

resultant disability compensation towards the

same is re-assessed as `15,000/-.

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16.5. The loss of future earning capacity is

re-assessed as (5,500 X 12 X 7 X

3%)=`13,860/- as against `7,560/- assessed by

the Tribunal.

17. Hence, the quantum of compensation is

re-assessed as follows:

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

1.        Pain and suffering               35000.00           35000.00

2.       Towards     attendance                6000.00        15000.00
         charges    and    food,
         nutrition,  diet    and
         conveyance

3.       Loss of earning during                9000.00        16500.00
         healup period

4.       Medical expenses                  60000.00           60000.00

5.       Loss      of      future              2440.00        15000.00
         amenities

6.       Loss of earning due to                7560.00        13860.00
         disablement

                  Total                   120000.00       155360.00
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                                                       NC: 2024:KHC:6042

18. Having regard to the finding on the negligence,

respondent No.3/Insurance Company is liable to pay a sum of

`1,55,360/- which is rounded up to `1,56,000/- as against

`1,20,000/- awarded by the Tribunal.

19. In view of the aforementioned, the following:

ORDER

i) The appeal is allowed in part;

ii) The judgment and award dated 22.11.2012 passed in MVC.No.625/2011 by the Learned Addl. Senior Civil Judge and Member, MACT. Puttur, D. K. is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal shall remain unaltered;

iii) The appellant/claimant is entitled to a total compensation of `1,56,000/- together with interest at 6% per annum from the date of petition till its realization.