Karnataka High Court

Shivakumar N vs United India Ins.Co.Ltd on 20 November, 2024

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                                                          NC: 2024:KHC:47177
                                                        MFA No. 2282 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 20TH DAY OF NOVEMBER, 2024

                                           BEFORE
                      THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                 MISCELLANEOUS FIRST APPEAL NO.2282 OF 2021(MV-I)


                 BETWEEN:

                 SHIVAKUMAR N.,
                 S/O. NARASIMHAIAH H.,
                 AGED ABOUT 33 YEARS,
                 R/AT DYAVALINGAIAHNAPALYA
                 HEJJALA,
                 RAMANAGARA DISTRICT-562109
                                                                ...APPELLANT
                 (BY SRI. SOMASHEKARA K.M., ADVOCATE)

                 AND:
                 1.    UNITED INDIA INS.CO.LTD.,
                       REGIONAL OFFICE, T. P. CLAIM,
                       NO.18, 6TH FLOOR, KRISHI BHAVAN,
Digitally signed       CORPORATION CIRCLE,
by AASEEFA             BENGALURU-560 001.
PARVEEN                (POLICY NO.0725003117P109953886
                       VALID FROM 14.10.2017 TO 13.10.2018)
Location: HIGH
COURT OF         2.    A. DHARMAN
KARNATAKA              S/O ARUMUGAM
                       MAJOR, R/AT NO.54, 16TH C MAIN
                       HAL, 2ND STAGE,
                       BENGALURU-560 008.
                                                              ...RESPONDENTS
                 (BY SRI. K. NAGARAJAIAH,ADVOCATE FOR R1;
                 R2- SERVED, UNREPRESENTED)

                     THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
                 JUDGMENT AND AWARD DATED 23.08.2019 PASSED IN
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                                            NC: 2024:KHC:47177
                                       MFA No. 2282 of 2021




MVC NO.2876/2018 ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU
SCCH-14 PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION    AND    SEEKING     ENHANCEMENT     OF
COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:     HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                       ORAL JUDGMENT

Heard Sri.K.M.Somashekhara, learned counsel for the

appellant as well as Sri.K.Nagarajaiah, learned counsel for

respondent No.1.

2. This appeal is the outcome of the order that is

rendered by the Motor Accidents Claims Tribunal,

Bengaluru in MVC No.2876/2018 dated 23.08.2019. This is

a claimant's appeal.

3. This appeal is filed on two grounds as submitted

by Sri.K.M.Somashekhara, learned counsel for the

appellant. The first ground is that the Tribunal erred in

fixing the contributory negligence to the extent of 20% on

the part of the appellant. Secondly, that the compensation

granted is grossly low.

NC: 2024:KHC:47177

4. Arguing on the first ground, learned counsel for

the appellant contends that the accident occurred solely

due to the rash and negligent driving of the driver of the

respondent's vehicle. There was no material what so ever

to show that the appellant was negligent. However, the

Tribunal gave its own findings which are not based on any

documentary or oral evidence and finally held that the

appellant contributed for the accident occur and his

contribution is 20%.

5. Per contra Sri.K.Nagarajaiah, learned counsel

for respondent No.1 states that the appellant was driving

his motor cycle negligently that too without wearing

helmet and observing the said fact, the Tribunal held that

the appellant is also responsible for the occurrence of the

accident.

6. The case of the appellant is that on 28.03.2018

at about 7.45 a.m. while he was proceeding on his motor

cycle, a car bearing registration No.KA-03-Z-8826 which

was driven by its driver in a rash and negligent manner

NC: 2024:KHC:47177

came from opposite direction and hit his motor cycle due

to which he fell down and sustained injuries.

7. The appellant apart from examining himself as

Pw.1, also produced Ex.P1-FIR, Ex.P2-Spot mahazar,

Ex.P3-Seizure mahazar, Ex.P4-IMV report and Ex.P6-

Charge sheet to establish that the driver of the car was at

fault. It is not in dispute that Police after due investigation

laid charge sheet against the driver of the car only. No

evidence what so ever was brought on record by

respondent No.1 to establish his version that the appellant

was negligent. When an investigating officer after due

investigation gives a particular finding and when such

finding is disputed, the party who disputes such a finding

is under obligation to produce cogent and convincing

material to establish before the Court that the findings

given by the investigating officer are false or perverse.

However, in the case on hand, no such evidence is

produced by respondent No.1. Absolutely there is no

material on record to show that the appellant drove his

NC: 2024:KHC:47177

motor cycle in a rash and negligent manner. Therefore,

this Court is of the view that the Tribunal erred in holding

that the appellant contributed for the accident to occur

and his contribution is 20%. Therefore, the respondents

are at liability to pay entire sum which the appellant is

entitled to, as compensation.

8. Coming to the quantum, as per the version of

the appellant, he was working as Senior Account Assistant

and was earning Rs.24,500/- p.m. As rightly observed by

the Tribunal, the appellant failed to establish either his

occupation or earnings by the date of accident.

9. Learned counsel for the appellant contends that

the accident occurred in the year 2018 and for the

relevant period, even the Karnataka State Legal Services

Authority is taking the notional income as Rs.12,500/-

p.m. for settlement of claims and at least the said figure

should have been adopted by the Tribunal. Learned

counsel for respondent No.1 did not raise any objection for

taking the notional income as Rs.12,500/- p.m. Therefore,

NC: 2024:KHC:47177

taking the notional income of the appellant as Rs.12,500/-

p.m. and without disturbing other parameters viz.,

application of multiplier '16' and the disability in respect of

whole body as 8%, the compensation which the appellant

is entitled to under the head 'loss of future earnings on

account of permanent physical disability to the whole

body' is as under:

Notional monthly income Rs.12,500/-

       Annual income                             Rs.1,50,000/-

       On      applying        appropriate Rs.24,00,000/-
       multiplier 16

Permanent physical disability in Rs.1,92,000/- respect of whole body being 8%, loss of future earnings is

10. The Tribunal through the impugned order

awarded a sum of Rs.1,30,560/- only under the head loss

of future earnings. Thus the enhancement will be

Rs.61,440/- (Rs.1,92,000-Rs.1,30,560).

11. Admittedly, the appellant sustained fracture of

condyles of left tibia and he underwent surgery also.

NC: 2024:KHC:47177

Therefore, this Court is of the view that the appellant

would have taken bed rest at least for a period of 3

months. Thus the loss of earnings during laid up period

comes to Rs.37,500/- (Rs.12,500X3). However, the

Tribunal awarded a sum of Rs.17,000/- only under the

said head. Therefore, enhancement will be Rs.20,500/-

(Rs.37,500-Rs.17,000).

12. The compensation that is granted by the

Tribunal under all other heads is justifiable. Therefore, the

total sum which the appellant is entitled to in addition to

the sum that is awarded by the Tribunal is Rs.81,940/-

(Rs.61,440+Rs.20,500).

13. Thus the appeal is disposed of with the

following:

ORDER

(i) The appeal is allowed in part.


     (ii)        The compensation that is granted by the
                 Motor         Accidents        Claims       Tribunal,
                 Bengaluru        through       orders      in     MVC

                                                 NC: 2024:KHC:47177





               No.2876/2018       dated        23.08.2019    is
               enhanced by Rs.81,940/-

(iii) The enhanced sum shall carry interest at the rate of 6% p.a. from the date of petition till the date of deposit.

(iv) The contributory negligence of 20% fixed on the part of the appellant is set aside.


       (v)     The respondents are at liability to pay
               entire    sum     that     is     awarded     as
               compensation to the appellant.

       (vi)    Respondent No.1 is directed to deposit the