Karnataka High Court

Sri Dyavegowda vs Sri Yogesh V on 16 February, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                              NC: 2024:KHC:6752
                                                           MFA No. 6051 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                                              BEFORE

                           THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

                      MISCELLANEOUS FIRST APPEAL NO.6051 OF 2022(MV-I)

                      BETWEEN:

                            SRI. DYAVEGOWDA,
                            S/O DEVEGOWDA,
                            AGED ABOUT 45 YEARS,
                            ANCHEPALYA VILLAGE,
                            KENGERI HOBLI,
                            BANGALORE-560 060.
                                                                   ...APPELLANT
                      (BY SRI. PUTTA SWAMY.C, ADVOCATE)

                      AND:

                      1.    SRI. YOGESH.V,
                            S/O VENKATESH,
                            NO.280, BHEEMANAKUPPE CROSS,
Digitally signed by
                            BENACHAKALLU, RAMOHALLI,
K S RENUKAMBA               BANGALORE-560 060.
Location: HIGH
COURT OF              2.    HDFC ERGO INSURANCE CO.,LTD,
KARNATAKA
                            LEGAL OFFICE,
                            NO.25/1, 2ND FLOOR,
                            SHANKARANARAYAN BUILDING,
                            BUILDING NO.2, M.G.ROAD,
                            BANGALORE-560 001.
                            [REPRESENTED BY ITS MANAGER]
                                                              ...RESPONDENTS
                      (BY SRI. B.PRADEEP, ADVOCATE FOR R2;
                          NOTICE TO R1 IS DISPENSED WITH DATED 29.01.2024)

                           THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
                      JUDGMENT AND AWARD DATED 31.05.2022 PASSED IN MVC
                      NO.7478/2019 ON THE FILE OF THE 10 ADDITIONAL JUDGE,
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                                                  NC: 2024:KHC:6752
                                           MFA No. 6051 of 2022




COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND     SEEKING  ENHANCEMENT     OF    COMPENSATION
IN TIME.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is preferred by the claimant questioning the

Judgment and Award dated 31.05.2022 passed in

MVC.No.7478/2019 by the Court of X Additional Judge, Court of

Small Causes, Member, MACT, Bengaluru (for short 'the

Tribunal'). This appeal is founded on the premise of inadequate

and meager compensation awarded by the Tribunal.

2. Parties to the appeal shall be referred to as per their

status before the Tribunal.

3. Brief facts of the case is as under:

The claimant was crossing a road as a pedestrian near

Anchepalya Village, U-TURN in the area of Kengeri Hobli,

Bangalore during which time, a scooter bearing Registration

No.KA 41 EP 5178 ridden by its rider in a rash and negligent

manner came in a high speed endangering human life and

safety and dashed against the claimant who was crossing the

road. Due to the impact of the accident, claimant fell down and

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sustained grievous injuries with comminuted fracture of both

bones (Tibia & Fibula) of Left leg and other bleeding injuries to

the body. He was immediately shifted to Rajarajeshwari

Medical College and Hospital, Bangalore where he was given

first aid treatment and later shifted to Mathru Hospital, Kengeri

where he was in patient for 3 days and underwent surgery for a

fracture of left leg and spent about Rs.1,00,000/- towards

medical and other expenses. It is stated that the claimant was

working as a coolie and earning Rs.15,000/- per month. Due to

the occurrence of the accident and the injuries suffered,

claimant has suffered a permanent physical disability and

hence, has filed a claim petition seeking compensation.

4. Respondent No.1-owner of the vehicle was placed

ex-parte.

5. Respondent No.2-Insurance Company filed its

statement of objections denying the claim of the claimant

including age, avocation, income and the negligence attributed

against the rider of the motorcycle and sought for dismissal of

the claim petition.

NC: 2024:KHC:6752

6. On the basis of materials placed on record, the

Tribunal awarded total compensation of Rs.4,09,987/- along

with interest at 6% p.a. to be paid by respondent No.2-

Insurance Company. Being aggrieved by the meager

compensation amount awarded by the tribunal, the claimant is

before this Court seeking enhancement of compensation.

7. Having heard the learned counsel for the appellant-

claimant and learned counsel for respondent No.2-Insurance

Company and perused the impugned Judgment and Award.

Exs.P1 to P17 are the documents produced. The Police record

clearly depicts the filing of FIR and Charge Sheet against the

driver of the motorcycle and the negligence is attributed to a

large extent against the rider of the motorcycle by the Tribunal.

Medical bills are produced to show the injuries sustained and

financial expenditures met by the claimant.

8. Coming to the question of age, avocation, income

and disability, age of the claimant was 42 years as on the date

of occurrence of the accident. The appropriate multiplier would

be '14' which is rightly taken by the Tribunal and same does

not call for interference. Doctor has been examined as PW.2

who opined disability to an extent of 15% to the whole body by

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arriving at 45% to a particular limb whereas the Tribunal has

assessed the disability to 10%. The income has been taken by

the Tribunal at 14,000/- per month as notional income in view

of there being no proof of income produced by the claimant and

the same is retained. In view of the evidence adduced by the

Doctor to the disability to an extent of 45% to the limb and

15% to the whole body, same will have to be taken as per the

opinion expressed by the Doctor. Hence, 15% disability is

taken in the present case on hand. In view of the above, the

loss of future income due to disability would be Rs.3,52,800/-

(14,000 X 12 X 14 X 15%) as against Rs.2,35,200/-.

(a) The Tribunal has awarded Rs.50,000/- towards pain

and suffering, which is just and reasonable and the same is

retained.

(b) The Tribunal has awarded Rs.42,000/- towards loss

of income during laid down period, which is just and reasonable

and the same is retained.

(c) The Tribunal has awarded Rs.50,000/- towards food,

nourishment and conveyance charges, which is just and

reasonable and the same is retained.

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(d) The Tribunal has awarded Rs.75,138/- towards

medical expenses, which is just and reasonable and the same is

retained.

(e) The Tribunal has awarded Rs.30,000/- towards future

medical expenses, which is just and reasonable and the same is

retained.

9. In view of the above, the claimant would be entitled

to a total compensation of Rs.5,99,938/- as against

Rs.4,09,987/- as mentioned in the table below:

                       Heads                     Amount in Rs.

     Loss of future earnings                         3,52,800-00

     Pain and suffering                                  50,000-00

     Loss of amenities, Food, nourishment                50,000-00
     and conveyance charges

     Medical expenses                                    75,138-00

     Future medical expenses                             30,000-00

     Laid up period                                      42,000-00

                       TOTAL                        5,99,938-00

                                              NC: 2024:KHC:6752

10. It is vehemently contended by the learned counsel

for the claimant that the contributory negligence attributed

against the pedestrian at 15% is on the higher side as he was

crossing the road within the city and since it is not a highway,

the contributory negligence of 15% is on the higher side and

same will have to be set-aside and entire negligence is to be

fastened on the rider of the motorcycle.

11. Whereas, learned counsel for the Insurance

Company contends that while the claimant was carrying a box

of the byproducts of the business due to which he has not seen

on the road as to which vehicle is coming, it is also negligence

on the part of the claimant which has caused occurrence of the

accident.

12. I am partly in agreement with the learned counsel

for both the parties. However, negligence would have to be

attributed partly as against the claimant also for the occurrence

of the accident. The negligence is attributed at 10% against the

claimant. In view of the above discussion, the claimant would

be entitle to total compensation of Rs.5,39,944/- (Rs.5,99,938

- 10%) along with interest at 6% per annum.

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Accordingly, I pass the following:

ORDER

a) Appeal is allowed-in-part;

b) The judgment and award dated 31.05.2022 passed by the Court of X Additional Judge, Court of Small Causes, Member, MACT, Bengaluru in MVC No. 7478/2019 is modified