Karnataka High Court

Shriram General Insurance Com. Ltd vs Manik Tavanappa Gumaji on 7 November, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                      MFA No. 101494 of 2019
                                                  C/W MFA No. 101271 of 2019



                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                           DATED THIS THE 7TH DAY OF NOVEMBER, 2024
                                             PRESENT
                          THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                               AND
                            THE HON'BLE MR. JUSTICE VENKATESH NAIK T

                        MISCELLANEOUS FIRST APPEAL NO. 101494 OF 2019
                                            C/W
                        MISCELLANEOUS FIRST APPEAL NO. 101271 OF 2019


                   IN MFA NO.101494 OF 2019:
                   BETWEEN:

                   SHRIRAM GENERAL INSURANCE COM. LTD.,
                   10003/E/8, RIICO INDUSTRIAL AREA,
                   SITAPUR, JAIPUR, RAJASTHAN, BRANCH
                   OFFICE A-101/201, ANMOL, SPACES COMPLEX,
                   21, BIKUNTH DHAM, KHAJARANA MAIN ROAD,
                   INDORE, M.P., R/BY ITS AUTHORIZED SIGNATORY.
                                                                     ...APPELLANT
                   (BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)

                   AND:
Digitally signed
by MANJANNA E      1.   MANIK TAVANAPPA GUMAJI
Location: HIGH          AGE: 39 YEARS, OCC: MILK VENDING BUSINESS,
COURT OF
KARNATAKA               R/O. 134, BASTWAD,
DHARWAD                 TQ: AND DIST: BELAGAVI-591201.
BENCH
Date: 2024.11.16
11:10:39 +0530     2.   MOHAMMED FARUQ KHAN
                        AGE: MAJOR, OCC: BUSINESS,
                        R/O.51, NANDAN NAGAR,
                        INDORE, MADHYA PRADESH-452001.

                                                            ...RESPONDENTS
                   (BY SRI. HARSHAWARDHAN M. PATIL, ADVOCATE FOR CAVEAT
                   RESPONDENT NO.1;
                   NOTICE TO R2 IS DISPENSED WITH VIDE COURT ORDER DATED
                   19.07.2022)
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                                    NC: 2024:KHC-D:16287-DB
                                   MFA No. 101494 of 2019
                               C/W MFA No. 101271 of 2019



      THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 02.01.2019
PASSED IN MVC NO.308/2016 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-V,     BELAGAVI,   AWARDING   COMPENSATION     OF
Rs.20,83,626/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.


IN MFA NO.101271 OF 2019:
BETWEEN:

MANIK TAVANAPPA GUMAJI
AGE: 38 YEARS, OCC: MILK VENDING BUSINESS,
R/O. 134, BASTWAD,
BELAGAVI TALUK.
                                                ...APPELLANT
(BY SRI. SUBHASH T. GOURGONDA AND
     SRI. V.K.PUNED, ADVOCATES)

AND:

1.   SRI. MOHAMMED FARUQ KHAN
     AGE: MAJOR, OCC: BUSINESS,
     R/O. 51, NANDAN NAGAR,
     INDORE, MADHYA PRADESH-452001.

2.   SHRIRAM GENERAL INSURANCE CO. LTD.,
     10003/E/8, RIICO INDUSTRIAL AREA,
     SITAPUR, JAIPUR, RAJASTHAN, BRANCH
     OFFICE A-101/201, ANMOL, SPACES COMPLEX,
     21, BIKUNTH DHAM, KHAJARANA MAIN ROAD,
     INDORE, M.P.
                                             ...RESPONDENTS
(BY SRI. NAGARAJ C. KALLOORI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED
07.11.2024)

     THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 02.01.2019
PASSED IN MVC NO.308/2016 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL-V, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION
FOR   COMPENSATION     AND   SEEKING    ENHANCEMENT     OF
COMPENSATION.
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                                             MFA No. 101494 of 2019
                                         C/W MFA No. 101271 of 2019



     THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:         THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                    AND
                 THE HON'BLE MR. JUSTICE VENKATESH NAIK T


                             ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

These appeals are filed challenging the judgment and

award dated 02.01.2019 passed by the learned IV Additional

District and Sessions Judge and MACT-V, Belagavi in M.V.C.

No.308/2016, whereby the Tribunal has awarded compensation

of Rs.20,83,626/- with interest at 6% per annum from the date

of petition till realization.

2. Being aggrieved by the judgment and award passed

by the Tribunal, insurance company has preferred MFA

No.101494/2019 for reduction of compensation and the

claimant has preferred MFA No.101271/2019 seeking

enhancement of compensation.

3. For the sake of convenience, the parties are

referred to as per their ranking before the Tribunal.

4. Brief facts of the claimant's case before the Tribunal

are as under:

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The claimant filed a claim petition under Section 166 of

the Motor Vehicles Act, 1988 before the Tribunal seeking

compensation on account of the injuries sustained by him in a

road traffic accident that occurred on 20.06.2015 when he was

proceeding on his motorcycle bearing registration No.KA-22/Y-

6805 from Bastawad towards Belagavi on N.H.4 to supply milk.

At about 11:30 hours, on that day, near Halaga over bridge,

the driver of the truck bearing registration No.MP-09/HG-5170

had parked it on N.H.4 without any parking lights. Due to

heavy rain, the truck was not visible and hence, the claimant

could not control his vehicle and thus dashed to the rear side of

the truck and sustained severe injuries. He was shifted to KLE

Hospital, Belagavi for treatment. He was inpatient for more

than three months and even after discharge he was bed-ridden

due to fracture of spinal cord and to head and due to the

accidental injuries, he has become permanently disabled and

cannot do any work. Hence, filed a petition seeking

compensation.

5. After service of notice before the Tribunal,

respondent No.1 though appeared through counsel, did not

chose to file objections. Respondent No.2/insurance company

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appeared through counsel and filed objection denying all the

averments made in the claim petition.

6. The Tribunal considering the evidence on record at

Exs.P1 to P20, oral evidence of PW1 and PW2, RW1 and Exs.R1

& R2, awarded total compensation of Rs.20,83,626/- with

interest at 6% per annum from the date of petition till its

realization.

7. Being aggrieved by the impugned judgment and

award, both, the insurance company seeking reduction of the

compensation and the claimant-seeking enhancement of the

compensation, are before this Court.

8. Learned counsel for the insurance company

vehemently contended that the accident occurred during broad

day light and the vehicle was very much visible to the claimant.

As he drove the vehicle in a rash and negligent manner, he

dashed to the parked lorry, which was stationed on the

extreme left side of the National Highway and thus, the

claimant has also contributed negligence in causing the

accident. Without considering this aspect, the Tribunal has

erred in saddling the entire negligence on the driver of the

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truck. The counsel further contended that the accident is of the

year 2015 but the Tribunal has considered the notional income

of the claimant at Rs.9,000/- per month instead of Rs.8,000/-

per month. He further contended that the Tribunal has

awarded exorbitant compensation under the head pain and

suffering, food and nourishment, attendant charges, loss of

amenities in life and future medical expenses and the same

requires to be reduced. Hence, the counsel prayed to allow the

appeal.

9. Learned counsel for the claimant contended that, he

was doing milk vending business and was earning Rs.40,000/-

per month but the Tribunal considered the income of the

claimant at Rs.9,000/- per month which is on the lower side.

He contended that, the claimant has sustained 100% disability,

however, the Tribunal has considered the disability at 80%

which is on the lower side. He contended that the Tribunal has

not considered the future prospects of the claimant. Thus, the

counsel prays to allow the appeal by awarding reasonable

compensation.

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10. Having heard the learned counsel for the parties

and on perusal of the appeal papers, the points that arise for

our consideration in this appeal are:

i. Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?

ii. Whether the insurance company has made out sufficient grounds that the claimant has also contributed negligence in causing the accident?

11. Point No.ii: It appears that the Tribunal saddled

the entire liability on the driver of the truck. From the perusal

of Ex.P-1-FIR, Ex.P-3-spot panchnama and Ex.R-6 charge-

sheet clearly establish that the truck was parked on the left

side of NH-4 and the driver of the said truck had parked his

vehicle without there being any parking lights or indicators that

too on a National Highway and hence, PW.1 could not be

blamed that he ought to have taken reasonable care to avoid

the accident. But the claimant could have applied brake and

avoided the accident. He could leave enough space between his

vehicle and parked vehicle in front to react to sudden braking

or unexpected road condition. Further accident occured due to

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carelessness of both the claimant and the driver of the truck

and the accident could be avoided by following safety rules. The

claimant could have taken slight deviation during the relevant

time. Therefore, considering all these aspects, we are of the

view that the claimant has also contributed negligence in

causing the accident. Therefore, we are of the view that it is

just and necessary to saddle negligence on the part of the

claimant to an extent of 25% and 75% on the driver of the

truck.

12. Point No.i: So far as the quantum of

compensation is concerned, the claimant himself examined as

PW.1 and he relied upon 20 documents. The tribunal has

observed that the claimant has sustained C3, C4 and C5 listesis

with cord compression with quadriparesis. In this regard, the

claimant got examined PW-2-doctor P.C. Wali, who has

assessed the permanent physical disability of the claimant.

PW-2 has opined that the claimant is suffering from functional

disability i.e., inability to walk, difficulty in moving his upper

limbs and lower limb, unable to move from the bed, unable to

sit, unable to squat, unable to climb and is unable to attend

nature's call without support of anybody. Further, PW-2 has

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opined that the petitioner has suffered permanent physical

disability of 80% to the whole body as per WHO and ALIMCOI

Manual of Government of India and issued disability certificate

at Ex.P.9. Considering the wound certificate and disability

certificate, the Tribunal has awarded Rs.50,000/- towards food

and nourishment, Rs.1,50,000/- towards pain and suffering,

Rs.2,67,626/- towards medical expenses, Rs.1,00,000/-

towards attendant charges, Rs.20,000/- towards traveling

expenses, Rs.1,00,000/- each towards loss of amenities in life

and future medical expenses which is fair and reasonable and

no interference is called for in that regard.

13. So far as loss of future income due to permanent

disability is concerned, the Tribunal has considered notional

income of the claimant at Rs.9,000/- per month, which is on

the higher side. As per the circular issued by the Karnataka

State Legal Services Authority as well as High Court Legal

Services Committee, for the accident of the year 2015, notional

income is fixed at Rs.8,000/- per month. Hence, Rs.8,000/- is

taken into consideration. As on the date of the accident, the

claimant was aged 39 years. Hence, he is entitled to future

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prospects at 40%. Thus, loss of future earnings is reckoned as

under:

Rs.8,000 + Rs.3,200/-(40%) =Rs.11,200/-

Rs.11,200/- x 12 x 15 x 80%= Rs.16,12,800/-

14. Thus, the claimant is entitled to Rs.16,12,800/-

towards loss of earnings as against Rs.12,96,000/- awarded by

the Tribunal.

15. Thus, in all, the claimant is entitled to modified

compensation as under:

Loss of future earnings Rs.16,12,800/-

     Pain and suffering                          Rs. 1,50,000/-
     Medical expenses                            Rs. 2,67,626/-
     Food and nourishment                        Rs. 50,000/-
     Attendant charges                           Rs. 1,00,000/-
     Traveling expenses                          Rs. 20,000/-
     Loss of amenities in life                   Rs. 1,00,000/-
     Future medical expenses                     Rs. 1,00,000/-
                                                 ------------------
                    Total                        Rs.24,00426/-
                                                 ------------------

16. Thus, the claimant is entitled to compensation of

Rs.24,00426/- as against Rs.20,83,626/- awarded by the

Tribunal.

17. As we have held that the claimant has contributed

negligence in causing the accident to an extent of 25%, the

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claimant is entitled to total compensation of Rs.18,00,319/-

(i.e. Rs.24,00,426x75%).

18. Accordingly, we answer the points for consideration

partly in the affirmative.

19. In the result, we pass the following:

ORDER

a) The appeals are allowed in part. The

impugned judgment and award of the

Tribunal is modified to an extent that the

claimant is entitled to total compensation of

Rs. 18,00,319/- with interest at the rate of

6% per annum from the date of petition till

realization.

b) The insurance company shall deposit the

compensation with interest before the

Tribunal within six weeks from the date of

receipt of copy of this judgment.