Karnataka High Court
Mr Surya Kumar vs The Manager on 4 January, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:407
MFA No. 319 of 2020
C/W MFA No. 3232 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.319 OF 2020 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.3232 OF 2020 (MV-I)
IN MFA NO.319 OF 2020:
BETWEEN:
THE MANAGER
LIBERTY GENERAL INSURANCE
COMPANY LIMITED
NO.1, ALYSSA, 1ST FLOOR
REAR PORTION, OLD NO.28
NEW NO.23, RICHMOND ROAD
RICHMOND TOWN
BENGALURU - 560 025
...APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)
AND:
Digitally
signed by B 1. MR.SURYA KUMAR
LAVANYA
S/O.D.SHANMUGAM
Location:
HIGH AGED ABOUT 45 YEARS
COURT OF R/AT NO.13, 6TH CROSS,
KARNATAKA NEAR SHANIMATHMA TEMPLE
DEVASANDRA
BENGALURU NORTH
BENGALURU - 560 036
2. MR.PRASAD K.
S/O.P.N.KIZHUVEETIL
RESIDING AT NO.24
MIDHILA, 2ND CROSS
VIVEKANANDANAGAR
CHIKKABANAVARA
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MFA No. 319 of 2020
C/W MFA No. 3232 of 2020
BENGALURU - 560 090
...RESPONDENTS
(BY SRI K.T.GURUDEVA PRASAD, ADVOCATE FOR R-1;
R-2 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET-ASIDE THE
JUDGMENT AND AWARD DATED 05.09.2019 PASSED IN MVC
NO.5911/2018 BY XV ADDITIONAL SMALL CAUSES JUDGE AND
XXIII ACMM, MEMBER, MACT, BENGALURU AND ETC.
IN MFA NO.3232 OF 2020:
BETWEEN:
MR.SURYA KUMAR
S/O.D.SHANMUGAM
AGED ABOUT 46 YEARS
R/AT NO.13, 6TH CROSS
NEAR SHANIMATHMA TEMPLE
DEVASANDRA, BENGALURU NORTH
BENGALURU - 560 036
... APPELLANT
(BY SRI K.T.GURUDEVA PRASAD, ADVOCATE)
AND:
1. THE MANAGER
M/S.LIBERTY GENERAL INSURANCE
COMPANY LIMITED
OFFICE NO.1, ALYSSA
1ST FLOOR, REAR PORATION
OLD NO.28, NEW NO.28
RICHMOND ROAD
RICHMOND TOWN,
BENGALURU - 560 025
2. PRASAD K.
S/O.P.N.KIZHUVEETIL
R/AT NO.24, MIDHILA, 2ND CROSS
VIVEKANANDANAGAR
CHIKKABANAVARA
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MFA No. 319 of 2020
C/W MFA No. 3232 of 2020
BENGALURU - 560 090
... RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R-1;
SRI R.P.SOMASHEKARAIAH, ADVOCATE FOR R-2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 05.09.2019 PASSED IN MVC NO.5911/2018 BY
XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM,
MEMBER, MACT, BENGALURU AND ETC.
THESE APPEALS ARE COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed challenging the judgment and
award dated 05.09.2019 passed by XV Additional Small Causes
Judge and XXIII ACMM Member, MACT, Bengaluru (for short,
'the tribunal') in MVC.No.5911/2018.
2. MFA.No.319/2020 is preferred by the Insurance
Company seeking to set-aside the judgment and award passed
by the tribunal whereas MFA.No.3232/2020 is preferred by the
claimant seeking enhancement of compensation being
dissatisfied with the meager compensation awarded by the
tribunal.
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3. Parties to the appeal shall be referred to as per their
status before the tribunal.
4. Brief facts of the case is as under:
[[
On 26.09.2018 at about 6.30 p.m., the claimant was
riding his Honda Activa vehicle bearing registration No.KA-
53/U-5404 on forest road, opposite to Ashoka Polytechnic
College, Abbigere, Bengaluru, at that time, the claimant parked
his scooter on the left side of the road, during which time, a
motor cycle bearing registration No.KA 04/JR-3665 came in a
rash and negligent manner by riding the same in a high speed
and dashed against the scooter of the claimant. Due to the
impact of the accident caused by the offending vehicle, the
claimant fell down and sustained grievous injuries. Thereafter,
the claimant was shifted to Primary Health Centre, Abbigere for
first aid treatment and subsequently, to K.C.General Hospital
for further treatment and later, shifted to Hosmat Hospital,
Bengaluru for better treatment. It is stated that the
claimant spent around Rs.4,00,000/- towards medical
expenses, conveyance, food and transportation.
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4.1 The claimant filed a claim petition seeking
compensation for the road traffic accident caused due to the
negligence of the rider of motor cycle, offending vehicle.
4.2 Respondent Nos.1 and 2, the Insurance Company and
the owner of the motor cycle respectively appeared and
respondent No.1 filed written statement whereas respondent
No.2 did not file written statement.
4.3 Respondent No.1-Insurance Company denied the
averments made in the claim petition. However, admitted the
issuance of insurance policy. It also took up a plea that the
rider of the motor cycle did not possess a valid driving licence
and negligence was not on the rider of the motor cycle but on
the claimant and sought for dismissal of the claim petition.
4.4 On the basis of pleading, the tribunal framed relevant
issues for consideration.
4.5 In order to establish the case and to prove the issues
framed, the claimant examined four witnesses, PWs.1 to 4 and
got marked Exs.P1 to P25, whereas the respondents neither
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adduced any evidence nor produced any documents in support
of their case.
4.6 On the basis of pleadings and evidence on record and
on hearing the learned counsel for both parties, the tribunal
awarded a compensation of Rs.6,52,900/- along with interest
9% p.a. from the date of petition till realisation. The tribunal
further held that respondent Nos.1 and 2 to be jointly and
severally liable to pay compensation. However, directed
respondent No.1 to deposit the compensation within 60 days
from the date of the order.
4.7 The claimant as well as the Insurance Company being
dissatisfied and aggrieved by the judgment and award are
before this Court challenging the same on several grounds
urged in their respective appeals.
5. It is the vehement contention of learned counsel for
claimant that the tribunal has not taken into consideration the
material evidence, both oral and documentary and has
committed an error in awarding meager compensation. He has
also contended that the tribunal has not awarded just and
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reasonable compensation ignoring the material evidence placed
on record. Therefore, he seeks enhancement of compensation.
6. Per contra, learned counsel for Insurance Company
vehemently contends that the tribunal has committed an error
in fastening the liability against the rider of the offending
vehicle and consequently, implicated the owner whose vehicle
was insured with the Insurance Company. He also contends
that the tribunal has failed to take into consideration the
contributory negligence on the part of the rider, the claimant.
He further contends that the tribunal has awarded exorbitant
interest which is not contemplated under the Motor Vehicles Act
and the Rules and therefore, the same requires to be lowered
as per Section 34 of CPC. He also contends that the tribunal
has arrived at an higher compensation, despite there being no
material placed on record by the claimant and the assessment
with regard to disability by the Doctor is on the higher side.
Hence, he seeks to set-aside the judgment and award and to
pass suitable orders.
7. Having heard learned counsel for both parties and
having perused impugned judgment and award and the original
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records, it is not in dispute that the accident occurred on
26.09.2018 involving two motor cycles in a road traffic accident
in a public place. To establish this aspect of occurrence of
accident, the claimant has got produced Exs.P1 to P9, which
are the Police records and other documents from Exs.P10 to
P25 to establish the medical records and expenditure met for
the treatment. The Police records clearly establishes the
involvement of vehicle and negligence which would be
attributable to the rider of the motor cycle, the offending
vehicle, who was implicated for the offences punishable under
Section 279 and 337 of IPC.
8. Now coming to the aspect of age, avocation and
income of the claimant, the claimant is aged 44 years. Though
the claimant has not produced any material evidence with
regard to proof of his income, the tribunal has assessed the
notional income of Rs.12,000/- per month. The notional
income chart prescribed by the Legal Services Authority for the
accident of the year 2018 is Rs.12,500/- per month. The same
requires to be taken in the present case and accordingly, it is
taken. Considering the age of the claimant to be 44 years, the
appropriate multiplier would be '14' as per the judgment of the
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Hon'ble Apex Court in the case of Sarla Verma (Smt) and
others vs. Delhi Transport Corporation and another
reported in (2009)6 Supreme Court Cases 121. The same
does not call for interference.
9. The claimant has got examined PW.3, who is the
Doctor has assessed the disability of 49% to the left lower limb
and 16.33% to the whole body. Considering the evidence of the
Doctor, the tribunal has assessed the disability at 16% to the
whole body. However, the same is disputed by the Insurance
Company stating that it is on the higher side on the ground
that the Doctor, who has given the disability has not given the
treatment to the claimant. However, learned counsel for
claimant and learned counsel for Insurance Company, during
the course of argument, filed a memo to agree on consent to
the disability to be 10% as against 16% assessed by the
tribunal. Hence, 10% is taken as the disability.
In view of the above, the loss of income due to disability
suffered in the accident would be Rs.2,10,000/- (Rs.12,500/-
x 12 x 14 x 10%).
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10. The compensation amount awarded by the tribunal
towards pain and suffering, medical expenses, future medical
expenses is just and reasonable. Therefore, no interference is
called for and the same is retained.
11. The tribunal has awarded compensation of Rs.5,000/-
towards transportation, nourishment, conveyance and
attendant charges. However, this Court deems it appropriate
to award additional amount of Rs.10,000/-. In all,
Rs.15,000/- is awarded under this head.
12. The tribunal has awarded compensation of
Rs.10,000/- towards loss of amenities. However, this Court
deems it appropriate to award additional amount of
Rs.40,000/-. In all, Rs.50,000/- is awarded under this head.
13. As the accident occurred in the year 2018, the
notional income of the claimant as prescribed in the Legal
Services Authority chart is taken as Rs.12,500/- p.m. and three
months is taken as laid up period. Hence, I deem it appropriate
to award a sum of Rs.37,500/- (Rs.12,500/- x 3) under the
head loss of income during laid up period.
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14. The tribunal has awarded interest @ 9% p.a. I am in
agreement with argument of learned counsel for Insurance
Company that the Motor Vehicles Act and Rules do not
prescribe the interest component and therefore, this Court has
to revert to the Code of Civil Procedure wherein Section 34
prescribes 6% interest. Hence, it is appropriate to award
interest @ 6% as against 9% awarded by the tribunal.
15. In view of the above, the claimant would be entitled
to a total compensation of Rs.6,27,775/- as against
Rs.6,52,900/- as mentioned in the table below:
Heads Amount in Rs.
Pain and suffering 40,000-00
Medical expenses 2,35,275-00
Future medical expenses 40,000-00
Transportation, nourishment,
conveyance and attendant charges 15,000-00
Loss of amenities 50,000-00
Loss of future income due to permanent
disability 2,10,000-00
Loss of income during laid-up period 37,500-00
TOTAL 6,27,775-00
16. Accordingly, I pass the following:
ORDER
i) The appeals are disposed of;
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ii) The judgment and award dated 05.09.2019 passed
in MVC.No.5911/2018 by XV Additional Small
Causes Judge and XXIII ACMM, Member, MACT,
Benglauru, is modified;
iii) The claimant is entitled to a total compensation of
Rs.6,27,775/- as against Rs.6,52,900/- awarded
by the tribunal;
iv) The balance compensation amount shall be paid @
6% p.a. within a period of four weeks from the date
of receipt of a copy of this order;
v) The amount deposited by the Insurance Company
shall be transmitted to the jurisdictional tribunal
forthwith and the same shall be disbursed to the
claimant upon proper verification in accordance to
the terms, conditions and stipulation made by the
tribunal.
Sd/-
JUDGE
LB
