Karnataka High Court
Smt. Annapurna Kadur vs Smt Jamna Ben on 21 October, 2024
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NC: 2024:KHC:42202
MFA No. 8615 of 2015
C/W MFA No. 8616 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 8615 OF 2015 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8616 OF 2015 (MV-I)
IN MFA NO. 8615/2015
BETWEEN:
SRI YUVARAJ KADUR,
S/O. LATE VEERBHADRAPPA,
AGED ABOUT 75 YEARS,
R/AT. F /AT NO. B-201,
PRAKRUTHI MIDOWS, KASHINAGARA CROSS,
AMRUTHALLI, BANGALORE - 560092.
...APPELLANT
(BY SRI N.S.BHAT, ADVOCATE)
Digitally signed by
AND:
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF 1. SMT.JAMNA BEN,
KARNATAKA
CHHAGANBHAI TANDEL,
MAJOR,
TRANSPORT BUSINESS,
VAPI, GIDC TALAPRDI VALSAD DISTRICT
GUJARAT STATE
PRESENTLY R/AT.
JAIN STREET, NANI DAMAN,
(R.C. OWNER OF TRUCK BEARING
REGISTRATION NO.GJ-15-X-8451)
2. THE REGIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD.,
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MFA No. 8615 of 2015
C/W MFA No. 8616 of 2015
REGIONAL OFFICE, NO. 44-45 RESIDENCY ROAD,
BANGALORE - 560025.
...RESPONDENTS
(BY SRI B.S.UMESH, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING THAT,
JUDGMENT AND AWARD DATED 16/02/2015 PASSED IN MVC
NO.8438/2010 ON THE FILE OF VIII ADDITIONAL SMALL CAUSES
JUDGE AND THE MACT (SCCH-5), BANGALORE IN SO FAR FIXING
25% CONTRIBUTORY NEGLIGENCE ON THE APPELLANT AND FOR
ENHANCEMENT OF COMPENSATION TO MAKE IT JUST AND
REASONABLE IN THE INTEREST OF JUSTICE.
IN MFA NO. 8616/2015
BETWEEN:
SMT.ANNAPURNA KADUR,
W/O. YUVARAJ KADUR,
AGED ABOUT 71 YEARS,
R/AT. FLAT NO. B-201,
PRAKRUTHI MIDOWS,
KASHINAGARA CROSS,
AMRUTHALLI, BANGALORE-560 092.
...APPELLANT
(BY SRI N.S.BHAT, ADVOCATE)
AND:
1. SMT.JAMNA BEN
CHHAGANBHAI TANDEL,
MAJOR,
TRANSPORT BUSINESS,
VAPI, GIDC TALPARDI,
VALSAD DISTRICT, GUJARAT STATE,
PRESENTLY R/AT. JAIN STREET,
NANI DAMAN, DAMAN-396210.
(R.C. OWNER OF TRUCK BEARING
REGISTRATION NO.GJ-15-X-8451)
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MFA No. 8615 of 2015
C/W MFA No. 8616 of 2015
2. THE REGIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
NO.44-45, RESIDENCE ROAD,
BANGALORE-560 025.
...RESPONDENTS
(BY SRI B.S.UMESH, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING THAT,
JUDGMENT AND AWARD DATED 16/02/2015 PASSED IN MVC
NO.8439/2010 ON THE FILE OF VIII ADDITIONAL SMALL CAUSES
JUDGE AND THE MACT(SCCH-5), BANGALORE AND TO ENHANCE
THE COMPENSATION TO MAKE IT JUST AND REASONABLE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these appeals, both the petitioners are seeking
enhancement of compensation and also questioned the
attribution of 25% of contributory negligence against the
driver of the car, who is the petitioner in MVC
No.8438/2010 on the file of the VIII Addl. Small Causes
Judge, 33rd ACMM Member and the MACT (SCCH-5),
Bangalore (Hereinafter referred to as 'Tribunal' for
short).
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2. The parties will be referred with respect to their
status before the Tribunal for the sake of convenience.
3. Briefly stated the facts are, on 25.12.2003 at
6.30 a.m., both the petitioners were traveling in the car
bearing its registration No.DN-09/2920, driven by the
petitioner-Yuvaraj Kadur. Opposite to Giriraja Hotel, near
Bhilad Naroli Cross, NH8 leading from Silvassa to Mumbai,
Truck bearing its registration No.GJ-15/X-8451 dashed
against the car. Due to the impact, both the petitioners
sustained injuries; they were treated at Government
Hospital, Bhilad, Haria L.G.Rotary Hospital, Vapi and Sir
Hurkisondas Nurrotumdas Hospital and Research Centre.
After return to Bengaluru, both have taken treatment at
Rajmahal Vilas Hospital, Bengaluru. Both the petitioners
approached the Tribunal for grant of compensation. Claim
was opposed by the insurer of the car as well as the lorry.
4. The Tribunal after taking the evidence and
hearing both the parties, attributed 75% of negligence on
the part of the driver of the lorry and 25% of contributory
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negligence on the part of the driver of the car and
awarded compensation of Rs.4,10,700/- to the petitioner
in MVC No.8438/2010 and Rs.64,500/- in respect of
petitioner in MVC No.8439/2010. Pleading inadequacy,
seeking enhancement and also questioning the attribution
of 25% of the contributory negligence against the driver of
the car/petitioner, both the petitioners are before this
Court.
5. Heard the arguments of Sri N.S. Bhat, learned
counsel for petitioners and Sri B.S. Umesh, learned
counsel for respondent No.2/insurer of truck.
6. It is contended by the learned counsel for
petitioners that both the petitioners being the husband
and wife, have sustained multiple injuries all over the body
and they were treated under the hospitalization. They
were traveled from Bombay to Bengaluru, the
compensation awarded by the Tribunal is very meager.
The complete negligence is against the driver of the truck,
there was no negligence on the part of the petitioner
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Yuvaraj Kadur in driving the car. The Tribunal has
committed an error in attributing 25% contributory
negligence and he sought for attribution of complete
negligence against the driver of the truck and sought for
enhancement of the compensation.
7. Per contra, learned counsel for insurance
company has contended that claims arising out of the
same accident, before the Tribunals at Madhya Pradesh,
before in the Lok Adalath matter was settled that 60%
negligence on the part of the driver of the truck and 40%
on the part of the petitioner Yuvaraj Kadur. It is further
contended that the attribution of contributory negligence
against the driver of the truck at 75% is on the higher side
as the inmates of the truck themselves admitted the
contributory negligence on the part of the petitioner
Yuvaraj Kadur to the extent of 40% before the Lok
Adalath. Same has to be adopted here also. It is further
contended that having regard to the injuries sustained by
the petitioners was only fracture of clavicle and ribs, there
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is no question of loss of future income, compensation
assessed by the Tribunal is on the higher side and it is not
a case for enhancement rather it is a case for modification
of percentage of contributory negligence from 25% to
40%.
8. I have given my anxious consideration to the
arguments addressed by the learned counsels appearing
for both sides and perused the material on record.
9. The accident involving truck and the car, both
the petitioners were the inmates of the car and one of the
petitioners is the driver of the car, they sustaining injuries
is not in dispute. Persons who have traveled in the truck
and some of the pedestrians who sustained injuries in the
said accident have also filed claim petitions before the
MACT, Madhya Pradesh, wherein the matters were
referred to the Lok Adalath and it was settled that
negligence on the part of the driver of the truck was 60%
and that of the driver of the car on 40%. The material on
record did not point out anything which specifically speaks
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of 75% contributory negligence on the part of the driver of
the truck. The prosecution papers are incomplete, except
FIR, no other material is made available. However, charge
sheet is against the driver of the truck. Since the claims
have also settled before the Lok Adalath at the ratio of
60:40, regarding negligence attributed by the drivers of
the truck and car, it is proper to adopt the same in order
to achieve infirmity.
Re: M.V.C. No.8438/2010:
10. Medical records show that the petitioner has
suffered fracture of clavicle and also multiple rib fractures.
He was under hospitalization for one week and he has
spent money towards traveling from Bombay to
Bengaluru. At the time of accident, he was aged 63 years.
Though he claims that he was a Sales Manager earning
Rs.10,000/- p.m., there is no proof of the same. Hence, he
has to be treated as a person with no proof of income.
The accident is of the year 2003 and income for a person
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with no proof of income is to be considered at Rs.3,000/-
p.m. and accordingly, it is considered.
11. The petitioner has produced medical bills to an
extent of Rs.2,80,702/- and he could have been laid up for
minimum six months and he spent money to the
attendant, conveyance and food and nourishment.
Towards pain and suffering and loss of discomforts he has
to be compensated accordingly. The petitioner explains
that he has sustained whole body disability to the extent
of 23.5%. PW-3 Dr. S. Rajanna has ratified the same in
the witness box. Hence, the petitioner being 63 years a
senior citizen having sustained fracture of clavicle and
multiple rib fractures has suffered functional disability at
23% for the purpose of assessing loss of future income.
12. Keeping in mind all these aspects the petitioner
has to be compensated with Rs.40,000/- towards pain and
suffering, Rs.2,80,700/- towards medical bills, Rs.15,000/-
towards incidental charges such as attendant, food and
nourishment and conveyance, Rs.40,000/- towards loss of
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amenities and discomfort and Rs.18,000/- towards loss of
income during laid up period for six months. As regarding
future loss of income is concerned, the applicable
multiplier is 7. The notional income is assessed at
Rs.3,000/- p.m. The functional disability is assessed at
23%. Hence, the loss of future income is worked out as
under: Rs.3,000x12x7x23%=57,960/-
13. If the compensation awarded under all the
heads are put together, the total compensation comes to
Rs.4,51,660/- as against Rs.4,10,700/- awarded by the
Tribunal and thereby the enhancement of Rs.40,960/-. In
view of the discussions made above, the contributory
negligence on the part of the petitioner is attributed at
40% and therefore, he is entitled to claim 60% of the total
compensation i.e., Rs.24,576/- rounded off to
Rs.25,000/-. It is just compensation in the facts and
circumstances of the case.
Re: M.V.C.No.8439/2010:
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14. The petitioner has suffered fracture of right
clavicle and multiple fractures of ribs and she was aged 59
years at the time of accident. The medical evidence
through PW-3 goes to explain that the petitioner has
sustained 17% of the functional disability for the whole
body. Having regard to her age, being a house wife, it is
proper to assess 15% as the functional disability. The
petitioner was under hospitalization for a period of three
days, she has attended by an attendant and spent money
towards food and nourishment, conveyance and produced
medical bills of Rs.4,425/-.
15. The petitioner has to be compensated with
Rs.30,000/- towards pain and suffering, Rs.5,000/-
towards medical bills, Rs.10,000/- towards incidental
charges such as attendant, food and nourishment and
conveyance, Rs.18,000/- towards loss of income during
laid up period for six months, Rs.30,000/- loss of
amenities and discomfort. As discussed above, the
notional income is at Rs.3,000/- p.m., applicable multiplier
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is 9. The functional disability is assessed at 15%. Hence,
the loss of future income is worked out as under:
Rs.3,000x12x9x15%=48,600/-
16. If the compensation awarded under all the
heads put together, the total compensation comes to
Rs.1,41,600/- as against Rs.64,500/- awarded by the
Tribunal and thereby the enhancement of compensation is
at Rs.77,100/-. As discussed above, the contributory
negligence on the part of the driver of the car is attributed
at 40% and therefore, the petitioner is entitled to claim
60% of the total compensation which comes to
Rs.46,260/-. It is just compensation in the facts and
circumstances of the case.
17. As regarding liability is concerned, there is no
dispute regarding insurer of the truck has to indemnify the
insured to the extent of 60% of the compensation. Since
the petitioner in MVC in 8439/2010 has not made the
owner and insurer of car as parties, she cannot claim 40%
of the compensation.
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18. As regarding rate of interest is concerned, the
Tribunal has awarded interest at the rate of 8% p.a. As
rightly contended by the learned counsel for insurance
company that at the prevailing time, no banks would have
offered interest at 8% p.a. on fixed deposits. Since the
insurance company is not in appeal, it is not proper to
interfere with the discretion of the Tribunal. Insofar as
enhanced compensation is concerned, the petitioners are
entitled to interest at 6% p.a.
19. In view of the above discussions, both the
appeals deserve merit consideration, in the result, the
following:
ORDER
(i) Both the appeals are allowed in part;
(ii) The judgment and award dated 16.02.2015
passed in M.V.C.Nos.8438/2010 and 8439/2010
passed by the VIII Addl. Small Causes Judge and
the Motor Accident Claims Tribunal (SCCH-5),
Bengaluru, is modified;
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(iii) The petitioner in M.V.C.No.8438/2010 is entitled
to the enhanced compensation of Rs.25,000/-
and the petitioner is M.V.C.No.8439/2010 is
entitled to the enhanced compensation of
Rs.46,260/- with interest at 6% p.a. from the
date of petition till deposit.
(iv) Insurance company is directed to deposit the
said compensation amount with interest at 6%
p.a. from the date of petition till the date of
deposit within eight weeks from the date of
receipt of certified copy of this judgment.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
CLK/Naa
