Karnataka High Court
National Insurance Co. Ltd vs Mr. Martin Peter D Souza on 16 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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MFA No. 100179 of 2017
C/W MFA No. 101626 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.100179 OF 2017 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.101626 OF 2017
IN M. F. A. NO.100179 OF 2017
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
BY ITS MANAGER,
II FLOOR, NAGAJIDADA MISSION,
ABOVE DENA BANK, PONDA, GOA,
NORTH GOA-403401,
HEREIN REPRESENTED BY:
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, 2ND FLOOR,
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBALI-580023,
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER.
SAMREEN ...APPELLANT
AYUB
DESHNUR (BY SRI. R.R. MANE, ADVOCATE)
Digitally signed by
SAMREEN AYUB
DESHNUR
Date: 2024.02.07
12:52:27 +0530
AND:
1. MR. MARTIN PETER D'SOUZA,
AGE: 31 YEARS, OCC: CENTER MANAGER,
R/O: BELAGUNDI, TQ and DIST: BELAGAVI.
2. THE MANAGING DIRECTOR,
KADAMBA TRANSPORT CORPORATION,
PARAISO DE GOA PORVORIM,
BORDER NORTH GOA-403521,
(OWNER AND INSURER OF THE
MEDIUM PASSENGER VEHICLE
BEARING NO.GA-03/X-0319).
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MFA No. 100179 of 2017
C/W MFA No. 101626 of 2017
3. MR.PAUL S/O ADAV D'SOUZA,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.59, KASSWADA,
NEAR ST.SABSTIAN CHAPPEL,
TALAULUM, PONDA,
GOA NORTH, GOA-403401,
(OWNER OF THE HERO HONDA PLEASURE
VEHICLE BEARING NO.MH-12/GB-4719)
...RESPONDENTS
(BY SRI. GURUKUMAR V.A., ADVOCATE FOR R1;
SRI. VINOD S.PAWAR, ADVOCATE FOR R2;
R3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 27.10.2016 PASSED IN
MVC NO.2657/2014 ON THE FILE OF THE V-ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL-VI, BELAGAVI, AWARDING
COMPENSATION OF Rs.14,49,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.
IN M. F. A. NO.101626 OF 2017
BETWEEN:
MR. MARTIN PETER D'SOUZA,
AGE: 32 YEARS, OCC: CENTER MANAGER (NOW NIL),
RESIDENT OF BELAGUNDI,
TAL. AND DIST.BELAGAVI-591108.
...APPELLANT
(BY SRI. GURUKUMAR V.A., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
KADAMBA TRANSPORT CORPORATION,
PARAISO DE GOA PORVORIM,
BORDER NORTH GOA-403521.
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MFA No. 100179 of 2017
C/W MFA No. 101626 of 2017
2. MR.PAUL S/O ADAV D'SOUZA,
AGE: MAJOR, OCC: BUSINESS,
RESIDENT OF H.NO.59, KASSWADA,
NEAR ST.SABSTIAN CHAPPEL,
TALAULUM, PONDA,
GOA NORTH, GOA-403401.
3. THE MANAGER,
THE NATIONAL INSURANCE CO. LTD.,
II FLOOR, NAGAJIDADA MISSION,
ABOVE DENA BANK, PONDA, GOA,
NORTH GOA-403401.
...RESPONDENTS
(BY SRI. VINOD S.PAWAR, ADVOCATE FOR R1;
SRI. R.R. MANE, ADVOCATE FOR R3;
R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 27.10.2016 PASSED IN
MVC NO.2657/2014 ON THE FILE OF THE V-ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL-VI, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS, COMING ON
FOR ORDERS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 100179 of 2017
C/W MFA No. 101626 of 2017
JUDGMENT
Though the matters are listed for orders, the same
are taken up for final disposal by the consent of the
parties.
2. Heard Sri.R.R.Mane, Sri.Gurukuamr V.A. and
Sri.Vinod S. Pawar, counsels.
3. These two appeals are directed against the judgment
and award passed in MVC No.2657/2014 on the file of V
Addl. District and Sessions Judge and MACT VI, Belagavi
dated 27.10.2016.
4. The facts in brief utmost necessary for disposal of the
appeals are as under:
4.1 The claim petition came to be filed under Section 166
of MV Act by the claimant who is appellant in MFA
No.101626/2017 on the ground that on 19.07.2014 at
about 10.05 hours when the petitioner was pillion rider in
motorcycle bearing No.MH-12/GB 4719, on account of the
rash and negligent driving of the Kadamba bus bearing
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No.GA-03/X-0319, there was a road traffic accident. Rider
and pillion rider fell down and pillion rider sustained
grievous injuries and he was shifted to hospital and
wherein he has taken necessary treatment.
4.2 The police after thorough investigation filed charge
sheet against the driver of Kadamba bus.
4.3 The claim petition was resisted by filing necessary
objection statement by the insurer of the motorcycle as
well as by the Managing Director of Kadamba Transport
Corporation.
4.4 Learned trial judge after raising necessary issues
considered the oral and documentary evidence placed on
record by the claimant and three witnesses and also
considering the documentary evidence placed on record on
behalf of the claimant, allowed the claim petition in part
and awarded a sum of Rs.14,49,000/- and attributed 25%
contributory negligence to the rider of the motorcycle in
view of the admission given by the very claimant in his
cross examination.
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5. Being aggrieved by the same, insurance company of
the motorcycle bearing No.MH-12-GB-4719 that is
National Insurance Company filed appeal in MFA
No.100179/2017 and claimant filed appeal in MFA
No.101626/2017 seeking enhancement of compensation.
6. Sri.R.R.Mane, learned counsel for National Insurance
Company contended that, when the charge sheet is filed
against the driver of the Kadamba Transport company, the
tribunal ought not to have attributed the 25% of
contributory negligence on the rider of the motorcycle and
sought for allowing the appeal.
7. Sri.Gurukumar, V.A. learned counsel representing
the claimant vehemently contended that the material
available on record would go to show that the injured was
aged 29 years and tribunal has wrongly considered it as
35 years and wrongly applied the multiplier as 16 instead
of 17 multiplier and sought for enhancement of the
compensation by reassessing the quantum of
compensation.
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8. Sri.Vinod Pawar, learned counsel representing the
Kadamba Transport Corporation in both the appeals,
supported the impugned judgment by contending that
tribunal was justified in attributing 25% contributory
negligence on the rider of the motorcycle in view of the
admission made by the claimant in his cross examination
that rider of the motorcycle was also negligent in riding
the motorcycle.
9. Insofar as quantum of compensation is concerned,
Sri.Vinod Pawar, contended that the age of the injured has
been taken as is mentioned in the wound certificate and
claimant has not placed any proper evidence with regard
to his age while narrating his age as 29 years in the claim
petition and sought for dismissal of both the appeals.
10. In view of the rival contentions of the parties, this
court has perused the material available on record
meticulously.
11. On such perusal of the material on record, the
injured sustaining the injuries in road traffic accident on
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19.07.2014 at 10.05 hours involving the motorcycle
bearing No.MH-12/GP 4719 and Kadamba Bus bearing
No.GA-03/X-0319 is established by placing necessary oral
and documentary evidence on record. Admittedly, the
motorcycle had insurance coverage by National Insurance
company.
12. Admittedly, charge sheet came to be filed by the
police as against the driver of the Kadamba Bus. But, on
record, claimant himself in the cross examination on
behalf of the Kadamba Transport company has clearly
admitted that the rider of the motorcycle was also
negligent in riding his motorcycle.
13. In the teeth of such admission, tribunal attributed
25% contributory negligence on the part of the rider of the
motorcycle.
14. It is settled principal of law that whenever a charge
sheet is filed by the police, after thorough investigation,
same will have a probative value while assessing the
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negligence on the part of the accused who has been
charge sheeted.
15. In the case on hand, driver of the bus has not
challenged the charge sheet. However, admission made by
the pillion rider who is an eye witness and injured in the
incident cannot be lost sight of in toto, while considering
the contributory negligence on the part of the rider of the
motorcycle.
16. Taking note of the fact that the charge sheet came to
be filed against the driver of Kadamba bus, attributing
25% contributory negligence solely on the admission made
by the claimant cannot be countenanced in law.
17. Therefore, attributing 25% contributory negligence
on the rider of the motorcycle needs to be scaled down to
10%, which would meet ends of justice.
18. This would take us to the reassessment of quantum
of compensation as is contended by the claimant.
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19. Material evidence placed on record would go to show
that injured was aged 29 years. Wrongly his age is
mentioned as 35 years in some of the documents relied on
by the claimant. When there is a proper proof available in
the form of date of birth, tribunal ought to have
considered the same age for the purpose of computing
especially, while applying proper multiplier. Since, injured
is 29 years as per material evidence on record, the proper
multiplier that would have been adopted by the tribunal is
17 as against 16 multiplier which has been taken into
consideration by the tribunal.
20. The tribunal has awarded interest at the rate of 9%
p.a. Taking note of the fact that, at the request of the
claimant instead of 16 multiplier, 17 multiplier is adopted
and reassessed the quantum of compensation, giving 7%
interest would meet the ends of justice.
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21. Therefore, the case is made out by the claimant for
reassessment of the quantum of compensation. The same
is reassessed as under:
Sl.No. Name of heads Amount(Rs.)
1 Loss of future income 9,18,000-00
(30,000X12X17X15%)
2 Pain and suffering 75,000-00
3 Loss of future amenities 25,000-00
4 Loss of life expectancy 15,000-00
5 Medical bills 2,00,000-00
6 Conveyance, nourishment and 40,000-00
attendants charges
7 Future medical expenses 25,000-00
9 Loss of income during laid up 1,80,000-00
period
10 Towards disfiguration 25,000-00
Total 15,03,000-00
22. For the foregoing discussion, the following :
ORDER
i) MFA No.100179/2017 is allowed in part.
ii) MFA No.101626/2017 is allowed in part.
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iii) As against compensation in a sum of
Rs.14,49,000 awarded by the tribunal, claimant is entitled
for compensation in a sum of Rs.15,03,000-00 with
interest at 7% p.a. from the date of petition till realization.
iv) Out of the adjudged compensation, 10% is to be
paid by the insurance company of the motorcycle bearing
No.MH-12-GB-4719 who is appellant in MFA
No.100179/20217. Balance 90% of compensation is to be
paid by the Kadamba Bus Transport Company.
v) Amount in deposit is ordered to be transmitted to
the tribunal for disbursement in accordance with law.
vi) Kadamba bus transport company is directed to
deposit the balance compensation to the extent of 90% of
the reassessed compensation in a sum of Rs.13,52,700/-
with interest at 7% p.a. within a period of six weeks from
today.
Sd/-
JUDGE
HMB, CT:UMD
