Karnataka High Court
Sri.T.S.Mallikarjuna @ Mallika vs K.V.Dayananda on 23 February, 2024
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NC: 2024:KHC:7729
MFA No. 4228 of 2014
C/W MFA No. 1810 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.4228 OF 2014(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.1810 OF 2014(MV-I)
IN MFA NO.4228/2014
BETWEEN:
SRI. T.S. MALLIKARJUNA @ MALLIKA,
S/O SIDDARAMAIAH,
AGED ABOUT 28 YEARS,
R/AT C/O JOSHI'S RENTAL HOUSE,
BESIDES COCO COLA FACTORY,
NAYANDALLI,
BENGALURU - 39.
...APPELLANT
(BY SRI. D.S. SRIDHAR, ADVOCATE)
AND:
1. K.V. DAYANANDA,
Digitally S/O K.C. VEERABHADRAPPA,
signed by
BHARATHI S C/O DAYANANDA, BWSSB QUARTERS,
Location: 2ND CROSS, 9TH MAIN,
HIGH BTM 2ND STAGE,
COURT OF
KARNATAKA BANGALORE - 76.
2. THE ORIENTAL INSURANCE CO.LTD,
ISSUING OFFICE: DO-8, NO-22,
D.V.G.ROAD,
BASAVANAGUDI,
BANGALORE - 04.
...RESPONDENTS
(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R2;
VIDE ORDER DATED 01.06.2015, NOTICE TO R1 IS
DISPENSED WITH)
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MFA No. 4228 of 2014
C/W MFA No. 1810 of 2014
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:22.10.2013 PASSED IN MVC
NO.1785/2012 ON THE FILE OF THE MEMBER, PRL.MACT, (SCCH-1),
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.1810/2014
BETWEEN:
THE ORIENTAL INSURANCE CO.LTD,
DIVISIONAL OFFICE NO. 8,
D.V.G.ROAD, BASAVANAGUDI,
BANGALORE - 560 004.
NOW REPRESENTED BY ITS
THE REGIONAL MANAGER,
REGIONAL OFFICE, 4TH FLOOR,
44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 001.
...APPELLANT
(BY SMT. HARINI SHIVANANDA, ADVOCATE)
AND:
1. SRI. T.S. MALLIKARJUNA & MALLIKA,
AGED ABOUT 28 YEARS,
S/O SIDDARAMALU,
C/O JOSHI,S RENTAL HOUSE
BESIDES COCO COLA FACTORY,
NAYANDANAHALLI,
BANGALORE - 39,
PERMANENT ADDRESS
NO.6, THALALU THORE,
ARASIKERE TALUK,
HASSAN DISTRICT - 583 125.
2. SRI. K.V. DAYANANDA,
MAJOR,
S/O K.C. VEERABHADRAPPA,
C/O DAYANANDA, BWSSB,
QUARTERS, 2ND CROSS,
9TH MAIN, BTM 2ND STAGE
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MFA No. 4228 of 2014
C/W MFA No. 1810 of 2014
BANGALORE - 76.
...RESPONDENTS
(BY SRI. D.S. SRIDHAR, ADVOCATE FOR R1;
VIDE ORDER DATED 27.09.2023, SERVICE OF NOTICE TO
R2 HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:22.10.2013 PASSED IN MVC
NO.1785/2012 ON THE FILE OF THE MEMBER, PRL. MACT,
BANGALORE (SCCH-1), AWARDING A COMPENSATION OF
Rs.2,44,900/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION AND IF THE COMPENSATION AMOUNT IS NOT PAID
WITHIN 2 MONTHS FROM THE DATE OF THIS ORDER, THEN RATE OF
INTEREST SHALL BE 9% P.A. TILL REALISATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.4228/2014 is filed by the insurer and
MFA.No.1810/2014 is filed by the claimant. In both the appeals
the judgment and award dated 22.10.2013 passed in
MVC.No.1785/2012 by the Member Principal Motor Accident
Claims Tribunal, Bengaluru1, is under challenge. Hence, both
the appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein are
referred as per their ranking before the Tribunal.
3. It is the case of the claimants that on 23.05.2010
when he was riding as a pillion rider in a motor cycle bearing
Hereinafter referred to as 'Tribunal'
NC: 2024:KHC:7729
No. KA-01-U-6017 the rider of the said motor cycle drove the
same in a rash and negligent manner as a result of which the
said motor cycle skidded and felt down causing the accident in
question, wherein the claimant sustained grievous injuries
circum to the same. Claiming compensation for the same,
claimant has filed a claim petition arraying owner and insurer of
the motor cycle as Respondent Nos.1 and 2 respectively. The
Respondent No.1 - owner was placed as ex-parte before the
Tribunal. Respondent No.2 - insurer entered appearance before
the Tribunal and contested the claim proceedings.
4. The claimant examined himself as PW.1 and the
doctor as PW.2. Ex.P.1 to Ex.P.12 were marked in evidence.
The representative of the insurer was examined as RW.1.
Ex.R.1 to Ex.R2 were marked in evidence. The Tribunal by its
judgment and award dated 22.10.2013 has awarded a
compensation of `2,44,900/- together with interest at 9% per
annum. Being aggrieved the present appeals have been filed.
5. Learned counsel for the insurer assailing the
judgment and award passed by the Tribunal contends that
admittedly, the claimant was traveling along with two other
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persons on the insured vehicle when the accident occurred.
That three persons ought not to have travel in the motor cycle
and the same is in violation of Section 128 of the Motor Vehicle
Act2. Hence, it is contented that the claimant contributed to
causing the accident in question and some percentage of
negligence should be attributed to the claimant himself. It is
further contended that there was no other vehicle involved in
the accident and the said accident could have been avoided if
three persons have not traveled on the motor cycle. It is
further contended that the disability assessed by the Tribunal at
23% is on the higher side. Hence, he seeks for allowing of the
appeal filed by the insurer and granting of the relief sought for.
6. Per contra, learned counsel for the claimant justifies
on the judgment of the Tribunal regarding liability and
negligence and further submits that the quantum of
compensation awarded by the Tribunal is on the lower side and
requires to be enhanced.
7. The submissions of both the learned counsels have
been considered and the material on record including the
Hereinafter referred as 'Act'
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records of the Tribunal have been perused. Hence, the
questions that arise for considered are:
"i) Whether any percentage of liability ought to be
attributed to the claimant since the claimant was riding
along with two other persons on the insured vehicle at
the time of the accident?
ii) Whether the quantum of compensation awarded is
required to be enhanced?"
Reg. Question No.(i):-
8. The contention of the insurer with regard to the
claimant riding the motor cycle in violation of Section 128 of
the Act and the consequence of the same is no longer res-
integira in as much as the Hon'ble Supreme Court in the case of
MOHAMMED SIDDIQUE AND ORS. V/S NATIONAL
INSURANCE COMPANY LTD. AND ORS3
"13. But the above reason, in our view, is flawed.
The fact that the deceased was riding on a motor cycle
along with the driver and another, may not, by itself,
without anything more, make him guilty of contributory
negligence. At the most it would make him guilty of
being a party to the violation of the law. Section 128 of
the Motor Vehicles Act, 1988, imposes a restriction on
the driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section 194C
inserted by the Amendment Act 32 of 2019, prescribes a
penalty for violation of safety measures for motor cycle
AIR 2020 SC 520
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drivers and pillion riders. Therefore, the fact that a
person was a pillion rider on a motor cycle along with the
driver and one more person on the pillion, may be a
violation of the law. But such violation by itself, without
anything more, cannot lead to a finding of contributory
negligence, unless it is established that his very act of
riding along with two others, contributed either to the
accident or to the impact of the accident upon the victim.
There must either be a causal connection between the
violation and the accident or a causal connection
between the violation and the impact of the accident
upon the victim. It may so happen at times, that the
accident could have been averted or the injuries
sustained could have been of a lesser degree, if there
had been no violation of the law by the victim. What
could otherwise have resulted in a simple injury, might
have resulted in a grievous injury or even death due to
the violation of the law by the victim. It is in such cases,
where, but for the violation of the law, either the
accident could have been averted or the impact could
have been minimized, that the principle of contributory
negligence could be invoked. It is not the case of the
insurer that the accident itself occurred as a result of
three persons riding on a motor cycle. It is not even the
case of the insurer that the accident would have been
averted, if three persons were not riding on the motor
cycle. The fact that the motor cycle was hit by the car
from behind, is admitted. Interestingly, the finding
recorded by the Tribunal that the deceased was wearing
a helmet and that the deceased was knocked down after
the car hit the motor cycle from behind, are all not
assailed. Therefore, the finding of the High Court that 2
persons on the pillion of the motor cycle, could have
added to the imbalance, is nothing but presumptuous
and is not based either upon pleading or upon the
evidence on record. Nothing was extracted from PW3 to
the effect that 2 persons on the pillion added to the
imbalance."
(emphasis supplied)
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9. A Coordinate Bench of this Court in the case of
KARNATAKA STATE ROAD TRANSPORT CORPORATION
V/S BELLAPPA4
"11. In the case of Sri. Anjanappa's case (supra)
,the Division Bench of this court had an occasion to
consider the provisions of Section 128 of the Act and the
Rule 123 of the CMV Rules and 143 of the KMV Rules vis-
à-vis claim made while the deceased carrying two pillions
on the motorcycle. It was almost same set of facts as the
case on hand, it was held merely breach of law or duty
would not create a liability to pay damages. Merely
because the deceased was riding motorcycle with two
persons on the vehicle though amounts to contravention
of Section 128 of the Act, it does not amount to
negligent act on the part of the deceased. The rider
riding the vehicle, if it is demonstrated lost control of the
vehicle, he was not able to balance the vehicle or
because of such contravention he dashed against the
vehicle which resulted in accident, then the question of
extent of breach of duty resulted in negligence would be
analysed. 30% of contributory negligence foisted on the
deceased solely on the ground that he was riding the
motorcycle with two persons behind him was held to be
not permissible in law. The police documents placed on
record was considered to be reliable evidence which were
prepared in discharge of their official duty and in the
process of investigation, in the absence of any motive
being attributed. This Judgment is squarely applicable to
the facts of the present case."
(emphasis supplied)
10. It is clear from the aforementioned that in the event
the insurer would attribute some percentage of negligence to
the claimant for violation of the Section 128 of the Act, the
ILR 2017 KAR 1292
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same cannot be done on presumptions and without basing on
any pleadings or evidence on record.
11. In the present case the claimant has been
examined as PW.1. No doubt PW.1 has admitted in the cross-
examination that three persons were traveling in the motor
cycle at the time of the accident. However, there is no other
suggestion with regard to the aspect that because three
persons were traveling on the motor cycle, the same
contributed to the occurrence of the accident in some manner.
Further, the insurer has not examined any independent witness
to demonstrate that, since there were three persons traveling
in the motor cycle, the same contributed to causing the
accident. Hence, the contention of the insurer is liable to be
rejected and the question No.(i) framed for the consideration is
answered in the negative.
Reg. Question No.(ii):-
12. The claimant is aged 26 years. Hence, the
appropriate multiplier that is required to the adopted is 17. The
claimant has sated that he was coolie. However, not documents
have been produced to prove the income of the claimant. The
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Tribunal has assessed the income at `4,500/- per month.
Having regard to the fact that no documents have been
produced to prove the income, the same is re-assessed as
notional income as per the chart being followed for settlement
of claims by the Lok-Adalath conducted by the Legal Service
Authority. Having regard to the date of the accident the same is
re-assessed as `5,500/- per month.
13. It is forthcoming from the discharge summary
(Ex.P.7) as well as the testimony of the doctor was examined
as PW.2 and other medical records that the claimant has
sustained fracture of right femur. He was treated as an
inpatient for 23 days. The doctor has stated that the claimant
has sustained a whole body disability at 23%. The Tribunal has
assessed the disability at 23%.
14. It is the contention of the learned counsel for the
insurer that the assessment of the disability at 23% is on the
higher side. It is forthcoming from the evidence of PW.2 that
the fracture is malunited and there is secondary arthritis, that
there is restrictive movement and the claimant cannot sit
crossed leg. Upon a re-appreciation of the material available on
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record it is just and proper that the functional disability of the
claimant be re-assessed at 20%.
15. In view of the same, the compensation is re-
assessed as follows:
15.1. The Tribunal has awarded the compensation of
`10,000/- towards injury, pain and suffering. Having regard to
the nature of the accident and the period of treatment it is just
and proper that the same is re-assessed at `20,000/-.
15.2. The Tribunal has awarded sum of `2,590/- towards
medical expenses which is as per actuals and the same is just
and proper hence, the said compensation is rounded of to
`3,000/-.
15.3. The Tribunal has awarded sum of `3,450/- towards
loss of earning capacity during the period of treatment. Having
regard to the period of treatment the laid up period is taken as
two months and the loss of earning is re-assessed as (5500 X
2)= `11,000/-.
15.4. The Tribunal has awarded sum of `2,300/- towards
attendant expenses and awarded sum of `3,000/- towards
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traveling expenses. Hence, on both the said heads and as also
towards food and nutrition, it is just and proper that the
compensation is re-assessed as `15,000/-.
15.5. The Tribunal has not awarded any compensation
towards loss of amenities. Having regard to the nature of
accident and resultant disability it is just and proper that the
compensation of `15,000/- be awarded to the same.
15.6. The loss of future earning capacity is re-assessed at
(5500 X 12 X 17 X 20%)= `2,24,400/- as against `2,23,560/-
awarded by the Tribunal.
16. Hence, the compensation is re-assessed as follows:
Sl.No. Heads Amount awarded by Amount awarded by
the Tribunal (`) this Court (`)
1. Injury, pain and 10000.00 20000.00
suffering
2. Loss of income due to 223560.00 224400.00
disability
3. Medical expenses 2500.00 3000.00
4. Loss of earning during 3450.00 11000.00
the period of
treatment
5. Traveling and 5300.00 15000.00
attendant expenses
6. Loss of amenities 00.00 15000.00
Total 244810.00 288400.00
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17. Hence, the appellant/claimant is entitled for an
enhancement of `43,600/- (`288400 - `244810) rounded of to
`44,000/-together with interest at 6% p.a. The question No.(ii)
framed for consideration is accordingly answered in the
affirmative.
18. In view of the aforementioned, the following:
ORDER
i) MFA.No.1810/2014 filed by the insurer and
MFA.No.4228/2014 filed by the claimant are
allowed in part;
ii) The judgment and award dated 22.10.2013 passed
in MVC.No.1785/2012 by the Member Principal
Motor Accident Claims Tribunal, Bengaluru, is
modified to the extent stated herein. In all other
respects, the judgment and award of the Tribunal
remains unaltered;
iii) The claimants are entitled to the enhancement of
`44,000/- with interest at 6% per annum from the
date of petition till its realization in addition to the
compensation awarded by the Tribunal;
iv) The amount deposited by the Appellant in
MFA.No.1810/2014 be transmitted to the Tribunal
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for disbursement in terms of the award of the
Tribunal;
v) The Appellant in MFA.No.1810/2014 - insurer shall
deposit the balance compensation awarded by the
by the Tribunal and enhanced by this Court
together with accrued interest within eight weeks
from the date of receipt of a copy of this judgment;
vii) The Registry to draw the modified award
accordingly;
viii) No costs.
Sd/-
JUDGE
PNV
CT:SNN
