Karnataka High Court
Sri Mahadeva vs Sri B M Girisha on 11 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
-1-
NC: 2024:KHC:1608-DB
MFA No. 2469 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.2469 OF 2020(MV-I)
BETWEEN:
Sri Mahadeva
S/o Late Mahadeva
Age about 27 Years
Residing At Uppara Doddi
Kasaba Hobli, Malagaranahalli,
Maddur Taluk
Mandya District
Digitally
signed by ...Appellant
VEENA
KUMARI B
Location:
(By Sri. Rajanna, Advocate)
High Court
of Karnataka
And:
1. Sri. B. M. Girisha
S/o Mallesha
Major,
R/At Bitagowdanahalli
Village and Post
-2-
NC: 2024:KHC:1608-DB
MFA No. 2469 of 2020
Hassan Taluk
Hassan District.
2. Reliance General Insurance Company Ltd.,
Office at 5th Floor,
Centenary Building,
M.G. Road,
Bengaluru -560001
Rep. by its Manager
...Respondents
(By Sri. Lingaraj H. S., Advocate for R-2;
R-1 - served and un-represented)
****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to call for the
records in M.V.C.No.1468/2017, order dated 07-09-2019 on
the file of the IX Additional Small Causes Judge & Motor
Accident Claims Tribunal (SCCH-7), at Bengalore; allow this
appeal/enhance the compensation as claimed in the claim
petition; pass such other order or orders as this Court may
deems fit in the circumstances of the case, including the cost of
this appeal and enhance the award as prayed for, in the
interest of justice and equity.
This Miscellaneous First Appeal coming on for Final
Hearing, through Physical Hearing/Video Conferencing, this
day, Dr.H.B.Prabhakara Sastry J. delivered the following:
-3-
NC: 2024:KHC:1608-DB
MFA No. 2469 of 2020
JUDGMENT
The present appeal is filed by the claimant under
Section 173 (1) of the Motor Vehicles Act, 1988,
(hereinafter for brevity referred to as "M.V. Act"), seeking
enhancement of the compensation awarded by the Court
of the learned IX Additional Small Causes and Additional
MACT, Bangalore, (SCCH-7) (hereinafter for brevity
referred to as "the Tribunal"), in its judgment and award
dated 07-09-2019, in M.V.C.No.1468/2017.
2. The summary of the case of the claimant before
the Tribunal is that, on the date 19-01-2017, at about
2:30 a.m., while he was proceeding by riding his Motor
Cycle bearing registration No.KA-02/JG-6679 near
Bullappa Industrial Estate Gate, Magadi Road, in order to
go to his residence, on the extreme left side of the road,
at that time, a Lorry bearing Registration No.KA-20/A-
8738 being driven by its driver in a rash and negligent
manner came and dashed against his vehicle and caused
NC: 2024:KHC:1608-DB
the accident, due to which road traffic accident, he
sustained multiple grievous injuries all over his body and
the vehicle was also damaged.
The claimant has stated that, after the accident, he
was shifted to Madhu Hospital, Bangalore, where, he was
stated that he sustained Type III Compound fracture of
right leg with exposed Tibia and injuries to other parts of
the body. He further stated that he also underwent a
surgery to fractured site with insertion of external fixators,
skin grafting, which were treated conservatively and was
advised to take follow-up treatment regularly.
The claimant stated that he was getting pain in his
leg constantly and again he was admitted to Chinmaya
Hospital, where he took treatment as an in-patient from
the date 26-01-2017 to 07-03-2017 and he underwent
another surgery in the form of medial hemisoleus muscle
flap transposition, skin grafting and insertion of fixators
and was asked to take further follow-up treatment.
NC: 2024:KHC:1608-DB
The claimant has further stated that he has spent a
sum of `2,00,000/- towards medical, conveyance,
nourishment and other incidental expenses. He also
submitted that, prior to the accident, he was hale and
healthy and doing loader work at Sri Siddappaji Papers
and earning a sum of `12,000/- per month. Due to the
injuries and the permanent disability sustained in the road
traffic accident in question, he has become permanently
disabled and sustained loss of income.
With this, he has claimed a compensation of a sum of
`30,00,000/- from the respondents No.1 and 2, arraigning
them as the owner and insurer of the alleged offending
Lorry bearing No.KA-20/A-8738, respectively.
3. In response to the service of summons upon the
respondents before the Tribunal, both respondent No.1
and respondent No.2 appeared through their respective
counsels. Though respondent No.1 (owner) did not file his
objections, however, respondent No.2 (insurer) filed its
Statement of Objections. In the objection statement, it
NC: 2024:KHC:1608-DB
stated that the claim petition filed by the claimant was not
maintainable either in law or on facts. It denied all the
averments made in the claim petition except those which
were specifically admitted therein. Without prejudice, it
denied that the alleged offending Lorry was involved in the
alleged accident and also denied the manner of occurrence
of the accident.
The respondent No.2 - Insurer also took a contention
that as on the date of occurrence of the road traffic
accident, the rider of the Motor Cycle bearing Registration
No.KA-02/JG-6679 was not having a valid and effective
driving licence to ride the said vehicle. It took a
contention that the road traffic accident in question was
caused solely due to the rash and negligent riding of the
Motor Cycle by the claimant, whereas the driver of the
Lorry was driving the same carefully and cautiously and on
the correct side of the road.
The respondent No.2 (Insurer) though admitted that
they had issued a policy of insurance in respect of the
NC: 2024:KHC:1608-DB
Lorry bearing registration No.KA-20/A-8738 in favour of
the first respondent - owner, however, stated that the
liability to indemnify the insured in respect of the said
policy was as per the statute, terms, limitation and the
conditions of the policy and that the insured was required
to prove before the Court the vehicular documents and
also that as on the date of the road traffic accident, the
person who was driving the said Lorry had a valid and
effective driving licence to drive the same. It further took
a specific contention that the owner of the Lorry willfully
entrusted the vehicle to a person who did not have a valid
and effective driving licence to drive the same on the date
of occurrence of the accident.
The respondent No.2 Insurer also sought for
protection under Sections 147, 149 and 170 of the M.V.
Act and stated that the liability, if any, should be
considerably reduced and mitigated by taking into
consideration the higher degree of negligence on the part
of the rider of the Motor Cycle bearing registration No.KA-
NC: 2024:KHC:1608-DB
02/JG-6679. Thus, it prayed for dismissal of the claim
petition filed by the claimant.
4. Before the Tribunal, the claimant got himself
examined as PW-1 and also examined four more witnesses
as PW-2, PW-3, PW-4 and PW-5 and got marked
documents from Exs.P-1 to P-26. On behalf of the
respondents, one Sri. Lokesh, driver of the Lorry was
examined as RW-1 and no document was marked as an
exhibit.
5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
compensation under the following heads with the sum
shown against them:
Sl.No. Particulars Amount in `
1 Pain and sufferings, mental agony 80,000-00
2 Actual Medical expenses 2,81,923-00
3 For special diet and conveyance 10,000-00
4 Permanent disability 6,91,200-00
5 Future medical expenses 1,00,000-00
Total 11,63,123-00
NC: 2024:KHC:1608-DB
6. The Tribunal has awarded a compensation of a
sum of `11,63,123/- with interest at the rate of `6% per
annum (excluding interest on a sum of `1,00,000/-
awarded towards future medical expenses) from the date
of the claim petition till the date of realisation, holding the
owner and Insurer jointly and severally liable to pay the
said compensation and directed the respondent No.2
Insurer to deposit the award amount. It is against the
said judgment and award passed by the Tribunal, the
claimant has filed this appeal, seeking enhancement of
compensation.
7. Records were called for from the Tribunal and the
same are placed before the Court.
8. The learned counsel for the appellant (claimant)
and the learned counsel for respondent No.2 (insurer)
before this Court are physically appearing before the
Court. Though notice was served upon the respondent
- 10 -
NC: 2024:KHC:1608-DB
No.1 (owner), he has remained absent and un-
represented.
9. Heard the arguments from both side. Perused
the materials placed before this Court including the
memorandum of appeal, impugned judgment and also the
Tribunal records.
10. The present appeal being the claimant's appeal
and the respondent No.2 - Insurer having not preferred
either cross-objection or a counter appeal, the question of
occurrence of the road traffic accident on the date, time
and place as alleged by the claimant in his claim petition
and also the alleged rash and negligent driving on the part
of the driver of the offending vehicle are not in dispute.
11. The claimant, who got himself examined as
PW-1, has reiterated the contentions taken up by him in
his claim petition even in his examination-in-chief also. He
got produced and marked copies of First Information
- 11 -
NC: 2024:KHC:1608-DB
Report (FIR), complaint, spot mahazar, rough sketch of
the spot of the accident, IMV report, Wound Certificate,
copy of the charge sheet, discharge summary, nineteen
(19) lab reports and sixty eight (68) prescriptions from
Exs.P-1 to P-10 respectively. He also got marked eight
photographs with a CD at Ex.P-13, two X-ray films at
Ex.P-14, out-patient record at Ex.P-15, one more X-ray
film at Ex.P-16. With this, he contended that the road
traffic accident, as contended by him in his claim petition
has occurred on the date, place and time mentioned in the
claim petition and that the same was solely due to the
rash and negligent driving of the Lorry bearing registration
No. KA-20/A-8738, by its driver.
Relying upon the discharge summary at Ex.P-8, lab
reports at Ex.P-9, prescriptions at Ex.P-10, out-patient
record at Ex.P-15, PW-1 (claimant) contended that in the
said road traffic accident, he sustained multiple grievous
injuries including Type III Compound fracture of right leg
with exposed Tibia.
- 12 -
NC: 2024:KHC:1608-DB
12. In support of his contention, the claimant got
examined one Smt. Devaki J., the Medical Record in-
charge of Chinmaya Hospital, as PW-3. The said witness
produced an authorisation letter in her favour at Ex.P-17
and OP MLC record and case sheet at Ex.P-18 and Ex.P-19
respectively. Thus, her role was limited for the production
of the medical records maintained by their Hospital.
13. The claimant also got examined one more
witness by name Smt. Lakshmidevi, the Medical Record
Officer, as PW-5. The said witness produced an
authorisation letter in her favour at Ex.P-25 and the case
sheet at Ex.P-26.
14. The respondent No.2 (insurer) got examined the
driver of the Lorry, as RW-1, who, though admitted that
he was the driver of the alleged offending vehicle, but
contended that it was the Motor Cycle being ridden by the
claimant which tried to overtake the Lorry from the left
side and dashed against the edge of the footpath and on
- 13 -
NC: 2024:KHC:1608-DB
his own, fell in front of the Lorry along with the Motor
Cycle. Though he tried to avoid the accident by taking the
Lorry towards the right side of the road, in the meanwhile,
the Lorry dashed against the median. Thus the accident
has occurred solely due to the rash and negligent act of
the claimant himself.
However, the investigation conducted by the
concerned Police ended in they filing a charge sheet as per
Ex.P-7 against the driver of the Lorry accusing him of
committing the offences punishable under Sections 279,
337 and 338 of the IPC and under Sections 134-A and 187
of the M.V. Act. Even the scene of offence panchanama at
Ex.P-3 and the rough sketch at Ex.P-4 also shows that the
fault was on the part of the driver of the Lorry but not on
the part of the rider of the Motor Cycle. According to the
IMV report at Ex.P-5, the occurrence of the accident was
not due to any mechanical defect with either of the
vehicles. Thus, the evidence of PW-1 corroborated by the
documentary evidence at Exs.P-1 to P-20 would go to
- 14 -
NC: 2024:KHC:1608-DB
show that, the road traffic accident in question has
occurred on the date, time and place as contended by the
claimant in his claim petition solely due to the rash and
negligent driving by the driver of the offending Lorry
bearing registration No. KA-20/A-8738, wherein the
claimant sustained grievous injuries.
This finding gains support also by the fact that,
disputing the finding of the Tribunal that the occurrence of
the accident was solely due to the rash and negligent
driving of the Lorry by its driver, the respondent No.2
insurer has not preferred any appeal against the impugned
judgment.
15. The claimant, as PW-1, has stated that in the
accident, he sustained Type III compound fracture to right
leg with exposed Tibia and injuries to other parts of the
body. He has stated that immediately after the accident,
he was shifted to Madhu Hospital, where he has taken
treatment as an in-patient from 19-01-2017 to
26-01-2017 and underwent a surgery. External fixators
- 15 -
NC: 2024:KHC:1608-DB
and skin grafting was also done in the said Hospital.
However, since he was getting constant pain and was not
completely cured, he once again got admitted to the
Chinmaya Hospital on the date 26-01-2017 where he
underwent a skin surgery in the form of medial
hemisoleus muscle flap transposition, split skin grafting
and application of external fixators and was discharged on
the date 07-03-2017. Since he was totally immobile, he
had to hire a taxi and avail the services of a driver for
commuting to the Hospital. For his further treatment, he
was admitted to Victoria Hospital on the date 04-02-2019
where he had to undergo amputation of his right leg above
the knee and was discharged on the date 18-02-2019.
Thus, it shows that he has suffered lot of pain and
suffering due to the injuries suffered by him in the road
traffic accident. It is considering these aspects, since the
Tribunal has awarded a compensation of a sum of
`80,000/-, which is a reasonable amount under the facts
and circumstances of the case, we do not find any reason
to interfere in it.
- 16 -
NC: 2024:KHC:1608-DB
16. Though PW-1 stated that he has spent a sum of
`5,00,000/- towards his medical, conveyance,
nourishment and other incidental charges, however, the
medical prescriptions and bills produced by him at
Exs.P-10, P-11, P-12 would go to show that the actual
medical expenses incurred by him was only a sum of
`2,81,923/-. Since the said amount has been awarded as
a part of compensation by the Tribunal, we do not find any
reason to modify the same.
17. The claimant got examined one Dr. S.
Ramachandra, as PW-4, who deposed that the claimant
had taken treatment at Madhu Hospital, Chinmaya
Hospital and at Victoria Hospital. At Victoria Hospital, the
amputation of the right leg above the knee was done.
After verifying the medical records from Exs.P-23 to P-26,
PW-4 has stated that he opined that the claimant was
suffering permanent disability of 50% to the whole body.
Even in his cross-examination, he adhered to the same
version. However, the Tribunal took the percentage of
- 17 -
NC: 2024:KHC:1608-DB
total permanent disability at 40% and the notional income
of the claimant at a sum of `8,000/- per month, which is
erroneous. Under the circumstances of the case, the
Tribunal ought to have taken the percentage of
permanent disability at 50% to the whole body.
18. The learned counsel for the claimant vehemently
contended that, the notional income of the claimant for
the relevant year 2017, as recommended by the
Karnataka State Legal Services Authority (KSLSA) is to be
taken at a sum of `11,000/- per month, as such, taking
the notional monthly income at a lower end by the
Tribunal is erroneous.
Per contra, learned counsel for the respondent
Insurance Company submitted that the notional income
taken by the Tribunal being reasonable, need not be
interfered with.
Admittedly, the road traffic accident in question has
occurred on the date 19-01-2017. The notional income
- 18 -
NC: 2024:KHC:1608-DB
recommended by the Karnataka State Legal Services
Authority (KSLSA) for the relevant year is a sum of
`11,000/- per month, which majority of the Motor Accident
claims Tribunals in the State have been following.
However, the Tribunal, without attributing any cogent
reason, has taken the income of the claimant at only a
sum of `8,000/- per month, as such, the same deserves to
be taken at a sum of `11,000/- per month.
The undisputed age of the claimant as on the date of
the accident was 24 years, for which, the proper multiplier
applicable would be '18'.
As such, towards future loss of income and
permanent disability, the compensation for which the
claimant is entitled to would be a sum of `11,88,000/- (i.e.
`11,000/-x12x'18'x50/100). Since the Tribunal has
awarded only a sum of `6,91,200/- under the said head,
the same requires to be modified.
19. Towards special diet and conveyance, the
Tribunal has awarded a compensation of a sum of
- 19 -
NC: 2024:KHC:1608-DB
`10,000/-. Under the circumstances of the case, we find
no reason to alter the same, as such, the same remains to
be retained.
20. Due to amputation of right leg above the knee,
the claimant has suffered discomforts and loss of
amenities in his life. However, the Tribunal has not
awarded any compensation under the said head. Under
the circumstances of the case, considering the nature of
injuries and also permanent physical disability, we are of
the view that the claimant is entitled for a compensation of
a sum of `50,000/- towards loss of amenities.
21. It is after considering the evidence of PW-4
Doctor, regarding the future medical expenses which the
claimant may incur, the Tribunal has awarded a
compensation of a sum of `1,00,000/- towards future
medical expenses. The same being a reasonable amount,
under the facts and circumstances of the case, we do not
find any reason to modify the same.
- 20 -
NC: 2024:KHC:1608-DB
22. Thus, as analysed above, the claimant is entitled
for a modified compensation as tabulated below:
Sl. Compensation Compensation
No. Particulars awarded by awarded in this
Tribunal in ` Court in `
1 Pain and sufferings, 80,000-00 80,000-00
mental agony
2 Actual Medical expenses 2,81,923-00 2,81,923-00
3 For special diet and 10,000-00 10,000-00
conveyance
4 Permanent disability 6,91,200-00 11,88,000-00
5 Future medical expenses 1,00,000-00 1,00,000-00
6 Loss of amenities in life Nil 50,000-00
Total 11,63,123-00 17,09,923-00
23. Since the quantum of compensation awarded by
the Tribunal at a sum of `11,63,123/- is in short by a sum
of `5,46,800/-, for the said enhancement of a sum of
`5,46,800/- only, the impugned judgment and award
deserves to be interfered with.
Accordingly, we proceed to pass the following :
- 21 -
NC: 2024:KHC:1608-DB
ORDER
[i] The appeal filed by the claimant stands
allowed in part;
[ii] The impugned judgment and award
passed by the learned IX Additional Small Causes
and Additional MACT, Bangalore (SCCH-7) dated
07-09-2019, in M.V.C.No.1468/2017, is hereby
modified to the extent that the compensation
awarded at `11,63,123/- is enhanced by a sum
of `5,46,800/- (Rupees Five Lakhs Forty Six
Thousand Eight Hundred only), thus fixing the
total compensation at `17,09,923/- (Rupees
Seventeen Lakhs Nine Thousand Nine Hundred
and Twenty Three only).
[iii] The liability fixed by the Tribunal upon
R-1 and R-2 jointly and severally and directing
respondent No.2 Insurer to deposit the amount,
period of deposit, rate of interest at `6% per
- 22 -
NC: 2024:KHC:1608-DB
annum and the terms regarding release of the
amount shall all remain unaltered, as such,
stands applicable to the enhanced sum also.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment to the
concerned Tribunal along with its records, without delay.
Sd/-
JUDGE
Sd/-
JUDGE
BMV*
