Karnataka High Court
Sri Umesh @ Umesh Gowda K J vs Sri Umesh Babu M on 23 November, 2024
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NC: 2024:KHC:47789
MFA No. 7122 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.7122 OF 2021(MV-I)
BETWEEN:
SRI. UMESH @ UMESH GOWDA K. J.,
S/O JAVALINGAPPA,
AGED ABOUT 29 YEARS,
R/AT KEREYAGALAHALLI VILLAGE,
NADURU POST, SIRA TALUK,
TUMKUR DISTRICT - 572 135.
...APPELLANT
(BY SRI. UDAYA KUMAR R. L.,ADVOCATE)
AND:
1. SRI. UMESH BABU M.,
S/O MANJUNATHA,
R/AT 12, KALLAIAH BUILDING,
19TH CROSS, MALAKAPPA GARDEN,
Digitally signed by BENGALURU - 560 061.
AASEEFA PARVEEN
ALSO AT:
Location: HIGH
COURT OF NO.527, NARASIMHASWAMY NILAYA
KARNATAKA 10TH MAIN, 3RD A CROSS,
M.E.I. LAYOUT GROUND,
BAGALAGUNTE, BENGALURU - 560 073.
2. ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
NO.121, THE ESTATE BUILDING,
DICKENSON ROAD, M. G. ROAD.,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O. DATED 16.07.2024)
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NC: 2024:KHC:47789
MFA No. 7122 of 2021
THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 02.01.2021 IN MVC
NO.4679/2019 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSE JUDGE AND ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
Heard Sri.Uday Kumar.R.L learned counsel for the
appellant as well as Sri.B.C.Shivanne Gowda learned counsel
for respondent No.2.
2. The claimant in MVC No.4679/2019 which stood
pending before the Motor Accidents Claims Tribunal, Bengaluru
and was disposed of through order dated 02.01.2021 is before
this Court challenging the findings given in the impugned order.
3. Arguing the matter, Sri.Uday Kumar.R.L learned
counsel for the appellant submits that the appeal is filed on two
grounds. Firstly, though entire negligence lies on part of the
driver of the car which is involved in the accident, the Tribunal
attributed contributory negligence to an extent of 10% on part
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of the appellant, which is unfair. Secondly, the compensation
that is granted by the Tribunal is grossly low.
4. Arguing on first ground, Sri.Uday Kumar.R.L.
submits that the appellant was proceeding on his two-wheeler
slowly and cautiously on the date of accident. However, the
driver of the car which is involved in the accident drove the said
vehicle in a rash and negligent manner, came in the opposite
direction and dashed against the motor cycle of the appellant
and thus, the accident occurred. Though, through sufficient
evidence, it is established that the accident solely occurred due
to rash and negligent driving of the driver of the car, yet the
Tribunal gave a finding that the appellant also contributed for
the accident to occur and his contribution is to an extent of
10%.
5. On the other hand, Sri.B.C.Shivanne Gowda learned
counsel for respondent No.2 states that there was head on
collusion between two vehicles and observing the same, the
Tribunal fastened the liability to an extent of 10% on part of
the appellant and thus, the impugned order is highly justifiable.
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6. The manner of happening of accident as projected
by the appellant before the Tribunal is that on 23.06.2019 while
he was proceeding on his motorcycle bearing registration
No.KA-64-H-9967 and when he reached near Kotta Gate, a
Swift car bearing registration No.KA-01-AD-8986 being driven
by its driver in a rash and negligent manner, without observing
the traffic, dashed against his vehicle due to which he fell down
and sustained injuries.
7. Apart from examining himself as PW1 the appellant
produced before the Tribunal Ex.P1 FIR, Ex.P2 Charge Sheet,
Ex.P3 Mahazar and Ex.P4 IMV Report to establish his version.
Admittedly, a complaint was given to police that the accident
occurred due to the rash and negligent driving of the driver of
the car. Also it is borne by record that basing on the contents
of the complaint given, a case was registered against the
driver of the car and finally a charge sheet was laid holding that
due to negligence on part of the driver of the car the accident
occurred. No evidence whatsoever was produced by the
respondents before the Tribunal in support of their version that
the appellant was at fault and that he contributed for the
occurrence of the accident. When the Investigating Officer
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gives a finding with regard to certain facts on due investigation,
the person who opposes the said finding is at liability to
produce sufficient proof in support of his version. However, in
the case on hand, there is no such material on record to show
that the appellant contributed for the accident to occur.
Therefore, this Court is of the view that the contributory
negligence attributed on part of the appellant is required to be
set aside.
8. Now coming to the aspect of quantum of
compensation, the Tribunal through the impugned order
awarded a sum of Rs.6,68,000/- and after deducting 10%
towards contributory negligence on part the appellant, ordered
respondents to pay a sum of Rs.6,01,000/- as compensation.
When Sri.Uday Kumar.R.L learned counsel for the appellant
contends that the said amount is grossly low, Sri.B.C.Shivanne
Gowda submits that the sum awarded as compensation is
exorbitant.
9. The appellant succeeded in establishing that he
sustained Type-1 open fracture of left Tibia and Fibula. Having
considered the evidence of PW2 and the documents produced,
the Tribunal rightly assessed the disability in respect of whole
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body as 12%. Though the appellant projected that as a driver
he was earning Rs.40,000/- per month, no substantive proof
with regard to the earnings is produced before the Tribunal.
The Tribunal has rightly taken the notional income of the
appellant as Rs.15,000/- per month. Also, the Tribunal awarded
a sum of Rs.1,00,000/- under the head pain and suffering.
Further, a sum of Rs.20,000/- is awarded towards loss of
amenities in life. That apart, the Tribunal awarded a sum of
Rs.25,000/- towards food, nourishment and miscellaneous
expenditure, Rs.10,000/- towards loss of earnings during laid
up period, Rs.20,000/- towards future medical expenses and
Rs.3,67,000/- towards loss of future earnings.
10. Having considered the nature of injuries sustained,
the treatment taken and the evidence produced, this Court is of
the view that compensation that is awarded by the Tribunal can
neither be termed to be on lower side or excessive. Therefore,
this Court holds that there are no grounds to enhance the
compensation. Resultantly, the following:
ORDER
(i) The appeal is allowed in part.
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(ii) The negligence attributed on part of the appellant
by the Motor Accidents Claims Tribunal, Bengaluru
through orders in MFA No.4679/2019 dated
02.01.2021 is set aside. Thus, the respondents are
at liability to pay the entire sum of Rs.6,68,000/- to
the appellant.
(iii) Respondent No.2 is directed to deposit the entire
sum within a period of eight weeks from the date of
receipt of copy of this order.
(iv) The award of the Tribunal on all other aspects holds
good.
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
DS
CT:TSM
