Karnataka High Court

D C Hanumanthappa vs Kantharaju S H on 21 October, 2024

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                                                    NC: 2024:KHC:42139
                                                  MFA No. 8325 of 2017




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 21ST DAY OF OCTOBER, 2024

                                        BEFORE
                          THE HON'BLE MR JUSTICE C M JOSHI
               MISCELLANEOUS FIRST APPEAL NO. 8325 OF 2017 (MV-I)
               BETWEEN:

               D C HANUMANTHAPPA,
               S/O CHIKKARANGAPPA @ DOGGALLI
               CHIKKARANGAPPA,
               AGED ABOUT 53 YEARS,
               AGRICULTURIST,
               R/O HONNENAHALLI VILLAGE,
               HOSADURGA TALUK-577 527.
               CHITRADURGA DISTRICT.
                                                          ...APPELLANT
               (BY SRI KALLESHA K, ADVOCATE FOR
                   SRI SHASHIDHARA R, ADVOCATE)

               AND:

               1.    KANTHARAJU S H,
Digitally
signed by            S/O HANUMANTHAIAH T,
NANDINI R            MAJOR,
Location:            OWNER OF MARUTHI SWIFT CAR
High Court
of Karnataka         BEARING NO.KA-18/N-2941,
                     R/O SANKALAPUR VILLAGE,
                     ANTHARAGHATTA POST, KADUR TALUK,
                     CHIKKAMAGALUR DISTRICT-577 548.

               2.    THE BRANCH MANAGER,
                     IFFCO-TOKIO GENERAL
                     INSURANCE CO. LTD.,
                     SHASHI KIRAN BUILDING,
                           -2-
                                        NC: 2024:KHC:42139
                                    MFA No. 8325 of 2017




     1ST FLOOR, SHANKAMUTTA ROAD,
     SHIMOGGA-577 201.

3.   BASAVARAJ,
     S/O MALLESHAPPA,
     AGED ABOUT 36 YEARS,
     OWNER OF MOTOR CYCLE
     BEARING NO.KA-16/Y-8526,
     R/O HONNENAHALLI VILLAGE,
     HOSADURGA TALUK-577 527.
     CHITRADURGA DISTRICT.

4.   THE BRANCH MANAGER,
     IFFCO-TOKIO GENERAL
     INSURANCE CO. LTD.,
     SHASHI KIRAN BUILDING,
     1ST FLOOR, SHANKAMUTTA ROAD,
     SHIMOGA-577 201.
                                          ...RESPONDENTS
(BY SRI K V SATEESH CHANDRA, ADVOCATE FOR R-1;
    SRI E I SANMATHI, ADVOCATE FOR R-2 & R-4
    NOTICE TO R-3 IS HELD SUFFICIENT V/O DATED
    11.12.2023)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 21.06.2017 PASSED IN MVC
NO.327/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, MACT AT HOSADURGA, 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 MR JUSTICE C M JOSHI
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                                         NC: 2024:KHC:42139
                                      MFA No. 8325 of 2017




                     ORAL JUDGMENT

Heard the learned counsel for the appellant. None

appears for the respondents. It is seen that despite ample

opportunity, respondents have not come forward to submit

their arguments.

2. Learned counsel appearing for appellant has

submitted that, basically, the appellant is aggrieved by the

quantum of the compensation amount awarded by the

Tribunal in MVC No. 327/2014 dated 21.06.2017 and also

that the liability has been fastened upon respondent No.1

though it is a case of composite negligence.

3. The appellant herein is the petitioner who laid a

claim petition under Section 166 of M.V. Act, in MVC

No.327/2014 claiming compensation on account of the

injuries sustained by him in the road traffic accident dated

20.01.2014. It is the case of the appellant that he was a

pillion rider of the motor cycle No.KA.16.Y.8526 at about

4.15 p.m., when he was near Gadi Ahamadnagara, the

NC: 2024:KHC:42139

Maruthi Swift car bearing No.KA.18.N.2941 moving infront

of the motor cycle, stopped abruptly in order to take a

turn at cross road resulting in the rider of the motor cycle

hitting the Maruthi Swift car from behind. The petitioner

fell down and sustained fracture of the shaft of the right

femur, fracture of right trochantic bone at right junction,

crush injury to right foot and both knee joints. He was

shifted to Government Hospital, Hosadurga, then to

Government Hospital, Chitradurga and later to Ortho

Care Center Chitradurga, where he underwent surgery. It

is the case of the petitioner that he was aged about 50

years and due to accidental injuries he had suffered

permanent disability affecting his daily work as an

agriculturist. He claims that he was earning a sum of

Rs.2,50,000/- per annum from agriculture and therefore,

he may be awarded adequate compensation.

4. On issuance of notice, respondent Nos. 1 and 3

appeared and filed their written statement and respondent

Nos. 2 and 4, IFCO TOKIO General Insurance Company is

NC: 2024:KHC:42139

common for both the vehicles. Respondents have denied

the alleged accident, including the age, occupation and

income claimed by the petitioner and contended that there

is no negligence on the part of the rider and driver of the

vehicles. However, it was admitted that respondent No.1 is

the owner of the Maruthi Swift Car and respondent No.3 is

the owner of the motor cycle.

5. On the basis of the above pleadings, the

Tribunal framed the appropriate issues and petitioner was

examined as PW1 and Exhibits P1 to 46 were marked on

his behalf. The official of the Insurance Company was

examined as RW1 and copy of the policy was marked as

Ex.R1. The owner of Maruthi Swift Car i.e., respondent

No.1 was examined as RW2.

6. After hearing both the sides, the Tribunal

assessed the compensation payable to the petitioner at

Rs.2,69,000/- under the following heads:

NC: 2024:KHC:42139

1 Medical expenses and hospital Rs.1,07,000 charges 2 Pain and suffering Rs.45,000 3 Loss amenities and happiness Rs.35,000 and frustration of life 4 Loss of earning during laid up Rs.12,000 period 5 Loss of future earnings Rs.60,000 6 Conveyance, attendant, food, Rs.10,000 nourishment charges Total Compensation (Two lakhs Rs.2,69,000 Sixty Nine thousand only)

7. The Tribunal fastened the liability on

respondent No.1 since his vehicle did not have valid

insurance as on the date of the accident.

8. Being aggrieved by the said judgment, the

petitioner is before this Court in appeal.

9. Learned counsel appearing for the petitioner

would argue that fastening of the liability exclusively on

respondent No.1 is not sustainable in law in view of the

judgment of the Apex Court in the case of Khenyei Vs.

New India Assurance Company Limited1. Secondly, he

(2015) 9 SCC 273

NC: 2024:KHC:42139

submits that the notional income assessed by the Tribunal

is on the lower side and that there is a need for

enhancement of the compensation. He submits that the

future medical expenses was not considered by the

Tribunal.

10. The records reveal that the petitioner was the

pillion rider. Admittedly, the two wheeler ridden by the

rider dashed against the car while the car was taking a

turn. Therefore, so far as the petitioner is concerned, it is

the case of composite negligence, but not otherwise. In

case of composite negligence, the law is well settled in

view of the two Full bench decision of this court in the case

of Ganesh Vs. Sayed Munned Ahmed2 and in the case

of K.S.R.T.C. Vs. Arun @ Arvind and others3. Later the

view of this Court was upheld by the Apex Court in the

case of Khenyei Vs. New India Assurance Company

Limited and others referred supra. Therefore, in case of

composite negligence, the petitioner is entitled for

ILR.1999.Kar.403

AIR.2004.Kar.26

NC: 2024:KHC:42139

compensation from any of the tortfeaser and in the case

on hand, respondent Nos. 3 and 4 are also the tortfeasers.

The Investigating Officer has filed the charge sheet against

both the vehicles and thereby, it clearly establish that the

negligence was by both the vehicles. In that view of the

matter, the Tribunal, definitely, erred in fastening the

liability only on respondent No.1. It may be true that

respondent No.1 did not have a insurance policy issued by

respondent No.2 was in force as on the date of accident.

But however, respondent Nos.3 and 4 are also jointly and

severally liable to pay the compensation to the petitioner

as it is a case of composite negligence. Hence, respondent

Nos.1, 3 and 4 are to be held liable to pay the

compensation to the petitioner and since respondent No.3

is the insured by respondent No.4, respondent No.4 is

liable to pay the compensation.

11. Coming to the quantum of compensation

amount, after considering the nature of the injuries

suffered by the petitioner, the period of inpatient

NC: 2024:KHC:42139

treatment as noted by the Tribunal in para 17 and 18 of

the judgment, there is no necessity either for

enhancement or for reduction in respect of the pain and

suffering, loss of amenities and happiness, conveyance,

attendant, food, nourishment charges and the medical

expenses incurred by the petitioner. However, the Tribunal

has not awarded any compensation in respect of 'future

medical expenses' which has been spoken by the Medical

Officer, who was examined before it as PW2. Therefore,

removal of plates and screws involve expenses and as

such, a sum of Rs.15,000/- has to be awarded under this

head.

12. The Tribunal has taken the notional income of

the petitioner at Rs.6,000/- per month. The guidelines

issued by the Karnataka State Legal Services Authority for

settlement of the disputes before the Lok Adalat prescribe

the notional income of Rs.8,500/- for the year 2014. In

umpteen number of decisions, this Court has held that the

guidelines issued by KSLSA are acceptable on the ground

that they are in general conformity with the minimum

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NC: 2024:KHC:42139

wages fixed under the Minimum Wages Act. Therefore,

the notional income of the petitioner is accepted as

Rs.8,500/- per month and as such, taking the disability at

12% and multiplier of 7, the loss of future earnings is

calculated as: Rs.8,500/- x 12 x 12 x 7% = Rs.85,680/-.

Consequently, the loss of earnings during laid up period

has to be re-worked out and in the considered opinion of

this Court, the petitioner could not have resumed his

normal activity atleast for a period of 4 months. Therefore,

the petitioner is entitled for a sum of Rs.8,500/-x4 =

34,000/-. Hence, the petitioner is entitled for a total

compensation of Rs.3,31,680/- instead of Rs.2,69,000/- as

awarded by the Tribunal as below:

1 Medical expenses and hospital 1,07,000 charges 2 Pain and suffering 45,000 3 Loss amenities and happiness and 35,000 frustration of life 4 Loss of earning during laid up period 34,000 5 Loss of future earnings 85,680 6 Conveyance, attendant, food, 10,000 nourishment charges

7. Future Medical expenses 15,000 Total 3,31,680 Less: awarded by Tribunal 2,69,000 Enhancement 62,680

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NC: 2024:KHC:42139

Therefore, the appeal deserves to be allowed in part.

Hence, the following:

ORDER

The appeal is allowed in part.

The petitioner is entitled for a total compensation of

Rs.3,31,680/- instead of Rs.2,69,000/- along with interest

at 6% p.a., and respondent No.1, 3 and 4 are jointly and

severally liable to pay the same.

Respondent No.4 is directed to deposit the

compensation to the petitioner along with interest before

the Tribunal within six weeks from today, if not already

deposited.