Karnataka High Court

Ameenabi vs R. Shashidhara on 6 March, 2024

Author: Jyoti Mulimani

Bench: Jyoti Mulimani

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                                                              NC: 2024:KHC:9556
                                                         MFA No. 6237 of 2013




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 6TH DAY OF MARCH, 2024

                                             BEFORE
                            THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                   MISCELLANEOUS FIRST APPEAL NO.6237 OF 2013(MV-I)
                   BETWEEN:

                   AMEENABI W/O C.N.KHASIM SAB,
                   AGED ABOUT 67 YEARS,
                   R/O BEHIND MAYURA CLINIC,
                   PRASANNA TALKIES ROAD,
                   CHITRADURGA CITY -577 501.
                                                                   ...APPELLANT
                   (BY SRI. SHASHIDHARA.R. ADVOCATE)

                   AND:

                   1.     R.SHASHIDHARA
                          AGE MAJOR,
                          R/O NO.93, 9TH MAIN, SHIVANAGARA,
                          NEAR RAJKUMAR STATUE,
                          RAJAJINAGARA, BANGALORE-10.
                          OWNER OF CAR BEARING
Digitally signed by       NO.KA-02/MD-1612.
THEJASKUMAR N
Location: HIGH
COURT OF            2.    THE BRANCH MANAGER,
KARNATAKA                 NATIONAL INSURANCE CO.LTD.,
                          BRANCH OFFICE, B.M.COMPLEX,
                          LAKSHMI BAZAR,
                          CHITRADURGA-577 501.
                                                               ...RESPONDENTS
                   (NOTICE TO R1-DISPENSED WITH V/O DATED: 15.11.2018;
                     BY SRI. E.R.DIWAKAR., ADVOCATE FOR R2)

                           THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                   SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988,
                   AGAINST THE JUDGMENT AND AWARD DATED: 11.02.2013
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                                              NC: 2024:KHC:9556
                                          MFA No. 6237 of 2013




PASSED IN MVC NO.502/2011 ON THE FILE OF THE I ADDL.
SENIOR CIVIL JUDGE AND MACT-V, CHITRADURGA.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING,     THIS     DAY,    THE     COURT   DELIVERED      THE
FOLLOWING:
                             JUDGMENT

Sri.Shashidhara.R., learned counsel for the appellant and

Sri.E.R.Diwakar., learned counsel for respondent No.2 have

appeared in person.

2. For the sake of convenience, the parties shall be

referred to as per their status and rankings before the Tribunal.

3. It is the case of the claimant that on the 02nd day of

May 2011 at about 08:30 am., she was traveling in a Car

bearing Registration No.KA-04/MF-771 from Bengaluru towards

Chitradurga. While the car was proceeding between Tumkur-

Sira on N.H.4, near Kadaviegere cross, the driver of a Car

bearing Registration N.KA-02/MD-1612 came in a rash and

negligent manner without following the traffic rules and

regulations hit the car of the claimant. Due to the impact, the

claimant sustained injuries. She was shifted to Government

Hospital, Sira for treatment, thereafter referred to higher

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center. She took treatment in various hospitals. Contending

that the accident occurred due to rash and negligent driving of

the car bearing Registration No.KA-02/MD1612, the claimant

filed claim petition seeking compensation.

In response to the notice, the first respondent remained

absent before the tribunal and hence, he was placed ex-parte.

The second respondent Insurance Company appeared through

its counsel and filed objections and denied the petition

averments. Among other grounds, it prayed for dismissal of the

petition.

Based on the above pleadings, the Tribunal framed

Issues, parties led evidence and marked the documents. The

Tribunal vide Judgment dated:11.02.2013 partly allowed the

petition. It is this Judgment that is called into question in this

appeal on several grounds as set-out in the Memorandum of

appeal.

4. Learned counsel for the appellant submits that the

Judgment of the Tribunal is contrary to the evidence on record

and law.

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Next, he submits that the Tribunal has erred in awarding

a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards

pain and sufferings.

A further submission is made that the Tribunal has erred

in awarding meagre amount under other heads.

Learned counsel vehemently contended that the Tribunal

has erred in concluding that there is a composite negligence on

the part of drivers of both the car.

Lastly, he submits that viewed from any angle the

meagre compensation awarded by the Tribunal is untenable.

Therefore, he submits that the award of the Tribunal requires

interference and accordingly, prayed to allow the appeal.

Learned counsel for the Insurance Company justified the

Judgment of the Tribunal. He argued by saying that the

Tribunal is justified in concluding that there is a composite

negligence on the part of drivers of both the Car. Counsel

therefore, submits that the appeal is devoid of merits and the

same may be dismissed.

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Heard, the contentions urged on behalf of the respective

parties and perused the appeal papers and also the records

with utmost care.

5. The point that would arise for consideration is

whether the Claimant is entitled for enhanced compensation?

6. The facts are sufficiently stated and do not require

reiteration. The Claimant's appeal is one for enhancement of

compensation and modification of the judgment. The Tribunal

taking note of the material evidence on record concluded that

the Claimant sustained injuries due to the composite negligence

on the part of the drivers of both the Cars bearing Reg.No.KA-

04/MF-771 and KA-02/MD-1612.

Learned counsel for the appellant in presenting his

arguments vehemently contended that the Tribunal has erred

in concluding that the accident took place due to composite

negligence on the part of the drivers of both the vehicles and

hence, they have equally contributed their negligence. He drew

the attention of the Court to the decision of the Apex Court in

KHENYEI VS. NEW INDIA ASSURANCE COMPANY

LIMITED AND OTHERS reported in (2015) 9 SCC 273.

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The submission is noted with utmost care and perused

the Judgment of the Apex Court.

The Hon'ble Apex Court in the case referred to supra has

settled the law regarding composite negligence. The Apex Court

has held that in the case of a composite negligence,

apportionment of compensation between two tortfeasors

vis-a-vis the plaintiff/ claimant is not permissible. He can

recover at his option whole damages from any of them. In my

view, the Tribunal has failed to appreciate the law laid down by

the Apex Court regarding composite negligence. Hence,

deducting the amount to the extent of 50% is untenable.

The grounds urged in the present appeal are mainly

relating to the meager compensation awarded under different

heads by the Tribunal. The Claimant has suffered pain and

agony owing to the injuries sustained in the accident in

question. Hence, this Court deems it appropriate to award

Rs.40,000/- (Rupees Forty Thousand only) towards pain and

sufferings as against Rs.20,000/- (Rupees Twenty Thousand

only) awarded by the Tribunal.

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Similarly, this Court deems it appropriate to award

Rs.30,000/- (Rupees Thirty Thousand only) towards loss of

amenities as against Rs.15,000/- (Rupees Fifteen Thousand

only).

The amount of Rs.6,000/- (Rupees Six Thousand only)

towards Medical expenses awarded by the Tribunal remains

intact.

It is noticed that the Tribunal has not awarded

compensation towards Conveyance, Food, Nourishment and

Attendant charges. Therefore, this Court deems it appropriate

to award Rs.5,000/- (Rupees Five Thousand only) towards the

same.

It is also noticed that the Tribunal has not awarded

compensation towards Loss of future earning capacity due to

disability. Therefore, this Court deems it appropriate to award

compensation towards loss of future earning capacity due to

disability as under:

Rs.6,500/- X 12 X 9 X 15/100 = Rs.1,05,300/-.

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7. Accordingly, this Court re-determines the

compensation as under:-

1. Pain and Sufferings 20,000 + 20,000 Rs.40,000/-

2. Medical Expenses 6,000 Rs.6,000/-

3. Loss of amenities 15,000 + 15,000 Rs.30,000/-

4. Loss of future amenities 5,000 Rs.5,000/-

5. Loss of future income 1,05,300 Rs.1,05,300/-

due to disability

Total: Rs.1,86,300/-

(Less) Compensation awarded by the - Rs.20,500/-

Tribunal:

Enhanced compensation awarded by Rs.1,65,800/-

this Court:

Having regard to the facts and circumstances of the case

and the prevailing rate of interest during the relevant time, this

Court deems it appropriate to award interest at the rate of 6%

per annum on the enhanced compensation amount from the

date of claim petition till realization.

8. Hence, the following:

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ORDER

1. The Miscellaneous First appeal is

allowed and the Judgment dated:11.02.2013

passed by the Court of I Addl. Senior Civil Judge

and MACT-V, Chitradurga in M.V.C No.502/2011 is

modified to the extent stated hereinabove.

2. The claimant is entitled for the enhanced

compensation of Rs.1,65,800/- (Rupees One Lakh

Sixty Five Thousand Eight Hundred only) with

interest at the rate of 6% per annum from the date

of the claim petition till the date of realization.

3. The second respondent - Insurance

Company is directed to satisfy the enhanced

compensation amount to the full extent along with

6% interest within a period of two months from the

date of receipt of the certified copy of this

Judgment.