Karnataka High Court
C Thippesh Naik vs Santhosh Naik on 30 July, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:30103
MFA No. 2997 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.2997 OF 2022 (MV-I)
BETWEEN:
C.THIPPESH NAIK
S/O.CHANDRA NAIK
AGED ABOUT 43 YEARS
AGRICULTURIST
R/AT ISAMUDRA
HOSAHATTI VILLAGE
CHITRADURGA TALUK & DISTRICT-577 501
...APPELLANT
(BY SRI R.SHASHIDHARA, ADVOCATE)
AND:
1. SANTHOSH NAIK
S/O.SHIVAKUMAR NAIK
AGED ABOUT 29 YEARS
DRIVER OF BIKE BEARING
NO.KA-17/EV-5352
R/AT DODDARANGAVVANAHALLY
VILLAGE, NERLAGE POST
DAVANGERE TALUK & DISTRICT-577 001
Digitally 2. NAGARAJ NAIK
signed by B S/O.HEMLA NAIK
LAVANYA
AGED ABOUT 34 YEARS
Location:
HIGH COOLIE WORK
COURT OF OWNER OF BIKE BEARING
KARNATAKA NO.KA-17/EV-5352
R/AT ECHAGATTA VILLAGE
DAVANGERE TALUK & DISTRICT-577 001
3. THE MANAGER
LIBERTY VIDEOCON GENERAL
INSURANCE CO. LTD.
BRANCH OFFICE
VA, KALBURGI SQARE
1ST FLOOR, DESAI CROSS
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MFA No. 2997 of 2022
DESHPANDE NAGARA
HUBBALLI-580 029
GENERAL INSURANCE CO. LTD.
BY ITS DIVISIONAL OFFICE
BENGALURU-560 026
...RESPONDENTS
(BY SRI SANTHOSH R. NELKUDRI, ADVOCATE FOR R-2;
SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-3;
R-1 IS SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET-ASIDE THE
JUDGMENT AND AWARD DATED 21.10.2021 PASSED IN MVC
NO.270/2019 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT-III, CHITRADURGA AND TO ENHANCE THE
COMPENSATION AND TO FIX THE LIABILITY ON RESPONDENT
NO.3-INSURANCE COMPANY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant-claimant
challenging the judgment and award dated 21.10.2021
passed in MVC.No.270/2019 on the file of the Principal
Senior Civil Judge and Additional MACT III at Chitradurga
(for short 'the tribunal'). This appeal is founded on the
premise of inadequate and meager compensation awarded
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by the tribunal and consequently to set-aside the
judgment and award with regard to fastening of
contributory negligence of 50% as against the claimant.
2. Parties to the appeal shall be referred to as per
their status before the tribunal.
3. The accident occurred on 10.07.2018 between two
motor cycles, one ridden by the claimant and the other
ridden by respondent No.1, which belongs to respondent
No.2. Though there is a dispute with regard to occurrence
of the accident and the negligence, the occurrence of
accident, involvement of vehicle, laying of FIR and
chargesheet implicating both the claimant as well as
respondent No.1 are proved by production of Exs.P1 to
P10 and Exs.P11 to P25 are the medical records to show
the injuries sustained by the claimant.
4. The tribunal awarded total compensation of
Rs.4,94,151/- with interest at 6% per annum fastening the
contributory negligence of 50% each on both the riders
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i.e. the claimant and respondent No.1 and rejected the
claim made against the Insurance Company due to non
possessing of the Driving Licence by respondent No.1.
5. It is the vehement contention of learned counsel
for appellant-claimant that the tribunal has committed an
error in passing the impugned judgment and award by
fastening the contributory negligence of 50% as against
the claimant, which is liable to be set-aside. It is further
contended that exoneration of respondent No.2-Insurance
Company from paying the compensation due to non-
possessing of licence by respondent No.1 is also liable to
be set-aside, as the Insurance Company would have to
pay the compensation and recover the same from the
insured.
5.1 Learned counsel further contends that PW.2-
Doctor has opined the disability of 43% to the affected
lower limb and 1% to the upper limb. However, the
tribunal, without considering the same, has committed an
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error in awarding disability to an extent of 10% to the
whole body, which requires to be enhanced. It is also
contended that under other heads, the tribunal awarded
inadequate compensation, which calls for enhancement.
On these grounds, he seeks to allow his appeal.
6. Per contra, learned counsels for respondent No.2-
owner and respondent No.3-Insurance Company
vehemently contend that the judgment and award passed
by the tribunal is sustainable. The question of setting aside
the contributory negligence fastened as against the
claimant does not arise, in view of the fact that the
claimant has been implicated in the criminal case and he
has pleaded guilty. They further contend that the disability
assessed by the tribunal at 10% is to be retained and the
same cannot be enhanced.
6.1 It is the contention of learned counsel for
respondent No.2-owner that the tribunal has committed an
error in fixing the liability to pay the compensation as
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against respondent No.2-owner and exonerating
respondent No.3-Insurance Company from paying the
compensation, which is not sustainable in view of the fact
that the policy was in force as on the date of occurrence of
accident.
6.2 Learned counsel for respondent No.3-Insurance
Company contends that the tribunal has rightly fastened
the contributory negligence of 50% as against the
claimant, in view of the fact that the FIR and chargesheet
are laid against the claimant. He further contends that the
tribunal has rightly exonerated the Insurance Company
from paying compensation, which is sustainable. The
Insurance Company is not liable to pay the compensation
in view of the fact that respondent No.1-driver of the
motor cycle was not possessing a valid and effective
Driving Licence as on the date of occurrence of accident.
7. Having heard learned counsel for both parties and
perused the materials on record, it is seen that the
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tribunal has taken the income at Rs.10,000/- per month,
which is on the lower side. The Legal Services Authority
chart prescribes the notional income of Rs.12,500/- per
month for the accident of the year 2018. The age of the
claimant is 46 years and the tribunal applied multiplier at
'13', which does not call for interference and the same is
retained. The tribunal awarded 25% towards future
prospects, which also does not call for interference and the
same is retained. PW.2-Doctor has opined the disability of
43% to the affected lower limb and 1% to the upper limb.
Even if the same is divided into three parts, the disability
would come to 14.5%, which would be rounded off to
15%. The tribunal ought to have taken the same for
calculation of functional disability rather than taking 10%.
Under the circumstances, the claimant is entitled for
Rs.3,65,625/- (Rs.12,500/- + 25% = Rs.15,625/- x 12 x
13 x 15%) towards loss of income due to disability as
against Rs.1,95,000/- awarded by the tribunal.
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8. The tribunal awarded Rs.1,64,151/- towards
medical bills and taxi bill, Rs.30,000/- towards pain and
suffering, Rs.20,000/- towards food and nourishment,
Rs.15,000/- towards attendant charges and Rs.20,000/-
towards removal of implants, which do not call for
interference and the same are retained.
9. The tribunal awarded Rs.30,000/- towards loss of
income during laid-up period. In view of this Court
enhancing the income from Rs.10,000/- to Rs.12,500/-
and the claimant would require three months to
recuperate and get back to his normal work, it would be
appropriate to award Rs.37,500/- (Rs.12,500/- x 3 )
under this head.
10. The tribunal awarded Rs.20,000/- towards loss of
amenities, which is on the lower side. Therefore, it would
be appropriate to award Rs.50,000/- under this head.
11. Now coming to the aspect of contributory
negligence of 50% fastened as against the claimant by the
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tribunal, it is seen that the tribunal has taken into
consideration the laying of FIR and chargesheet against
the claimant and fastened the contributory negligence of
50% as against the claimant and 50% as against
respondent Nos.1 and 2. Therefore, I do not find any
cogent reason to interfere with the same and it is retained.
12. In view of the above, the claimant would be
entitled to total compensation of Rs.7,02,276/- as against
Rs.4,94,151/- awarded by the tribunal, as mentioned in
the table below:
Sl. Head of compensation Amount of
No. compensation
awarded
1. Loss of income due to disability 3,65,625-00
2. Medical Bills and Taxi Bill 1,64,151-00
3. Pain and suffering 30,000-00
4. Loss of income during laid-up 37,500-00
period (three months)
5. Food and nourishment 20,000-00
6. Loss of amenities 50,000-00
7. Attendant charges 15,000-00
8. Removal of implants 20,000-00
Total 7,02,276-00
Less: 50% contributory negligence 3,51,138-00
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13. Now coming to another aspect of payment of
compensation fixed as against respondent Nos.1 and 2 by
the tribunal, I am in agreement with learned counsel for
claimant and respondent No.2-owner that as the policy
was in force as on the date of occurrence of accident,
respondent No.3-Insurance Company would be liable to
pay the compensation to the claimant and recover the
same from respondent No.2-owner.
14. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 21.10.2021
passed in MVC.No.270/2019 on the file of the
Principal Senior Civil Judge and Additional
MACT III at Chitradurga, is modified;
iii) The appellant-claimant is entitled to total
compensation of Rs.7,02,276/- as against
Rs.4,94,151/- awarded by the tribunal.
However, in view of contributory negligence of
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50% is fastened on the claimant, out of the
total compensation amount of Rs.7,02,276/-,
the claimant would be entitled to 50%. Hence,
he is entitled to Rs.3,51,138/- along with
interest @ 6% p.a. from the date of petition
till its deposit;
iv) The payment of compensation fixed as against
respondent Nos.1 and 2 by the tribunal is
hereby modified. Respondent No.3-Insurance
Company is liable to pay the compensation to
the appellant-claimant within a period of four
weeks from the date of receipt of a copy of
this judgment;
v) Respondent No.3-Insurance Company is at
liberty to recover the same from respondent
No.2-owner;
vi) The compensation amount shall be released in
favour of the appellant-claimant as per the
terms of the tribunal by electronic transfer to
the appellant-claimant upon furnishing the
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required Bank details/upon proper
identification;
vii) All other terms and conditions stipulated by
the tribunal shall stand intact.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
LB
