Karnataka High Court
Shri.Basavaraj S/O Basalingappa vs Shri.Shiddappa S/O Ramappa @ Ramana on 28 October, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
-1-
NC: 2024:KHC-D:15772-DB
MFA No. 102903 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102903 OF 2019 (MV-I)
BETWEEN:
SHRI. BASAVARAJ
S/O. BASALINGAPPA SOUNDATTI,
AGE 35 YEARS,
OCC: ELECTRIC CONTRACTOR,
(NOW NIL), R/O. BILAKUNDI,
TQ: GOKAK, DIST: BELAGAVI,
PIN CODE-591307.
...APPELLANT
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
Digitally signed
by JAGADISH T
R
Location: High
AND:
Court of
Karnataka,
Dharwad Bench
1. SHRI. SHIDDAPPA
S/O. RAMAPPA @ RAMANA,
LAKKAPPANAVAR @ YANKANEPPAGOL,
AGE 40 YEARS,
OCC: AGRICULTURE,
R/O. KOUJALAGI,
TAL. GOKAK,
DIST: BELAGAVI,
PIN CODE: 591307.
-2-
NC: 2024:KHC-D:15772-DB
MFA No. 102903 of 2019
2. BRANCH MANAGER,
THE NATIONAL INSURANCE COMPANY LTD,
1ST FLOOR, 3200/A/22E,
OPPOSITE RANGE OFFICE,
BUS-STAND ROAD, GOKAK,
DIST: BELAGAVI,
PIN CODE: 591307.
...RESPONDENTS
(BY SRI. S. V. YAJI, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO THE JUDGMENT AND AWARD DATED 18.03.2019
IN MVC NO.228/2018 PASSED BY THE LEARNED PRL. SENIOR CIVIL
JUDGE AND MACT, GOKAK, IN HOLDING THE CONTRIBUTED
NEGLIGENCE TO THE EXTENT OF 50% IN CAUSING THE ACCIDENT
AND DENYING THE SAME TO THE APPELLANT HEREIN BE KINDLY BE
SET ASIDE AND THEREBY HOLDING THE SAID NEGLIGENCE OF ITS
ENTIRETY UPON THE RESPONDENTS NOS.1 & 2 HEREIN AND
FURTHER MODIFYING THE JUDGMENT AND AWARD AND ENHANCING
THE AWARD OF CLAIM COMPENSATION FROM RS. 5,07,200/- TO RS.
21,00,000/ WITH INTEREST AT 12% PER ANNUM FROM THE DATE OF
PETITION, TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENTS
NO.1 & 2 JOINTLY AND SEVERALLY LIABLE TO PAY THE
COMPENSATION, BY ALLOWING THIS APPEAL WITH COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, 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
-3-
NC: 2024:KHC-D:15772-DB
MFA No. 102903 of 2019
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
This appeal is filed by the claimant aggrieved by the
judgment and award dated 18.03.2019 passed in M.V.C.
No.228/2018 on the file of the learned Principal Senior Civil
Judge and MACT, Gokak, whereby the Tribunal awarded a sum
of Rs.2,53,600/- (50% out of total compensation of
Rs.5,07,200/-) as compensation.
2. For the sake of convenience, the parties are
referred to as they are referred to in the claim petition before
the Tribunal.
3. The claim petition was filed seeking compensation
on account of injuries sustained by the claimant in a road traffic
accident that took place on 25.11.2014 at about 07:00 p.m.,
when the claimant with his neighbor were returning from Gokak
to Bilakundi on his motorcycle bearing registration No.KA-49-J-
6384 on extreme left side of the road, when he reached the
land of the Guggagol, the rider of another motorcycle bearing
registration No.KA-49/J-4964 came from opposite side in a
rash and negligent manner and dashed to the motorcycle of the
NC: 2024:KHC-D:15772-DB
claimant. Due to the said impact, the claimant sustained
grievous injuries and hence, he was shifted to Dr. B.A. Matte's
Hospital, Gokak for treatment. Hence, he lodged the
complaint, this led to registration of FIR and investigation.
Thus, the claimant filed claim petition under Section 166 of MV
Act.
4. After service of notice before the Tribunal, the
respondent/Insurer resisted the claim petition by filing written
statement.
5. The Tribunal considering the evidence on record at
Exs.P1 to P22, oral evidence of PW1, PW2, RW1 & RW2 and
Exs.R1 to R12, granted total compensation of Rs.2,53,600/-
with interest at 9% per annum from the date of petition till its
realization.
6. Learned counsel for the appellant/claimant submits
that the Tribunal has wrongly observed that the claimant also
attributed contributory negligence to an extent of 50% on the
part of the rider of motorcycle bearing registration No.KA-49/J-
6384, wherein the claimant was proceeding as one of the pillion
rider. Merely because, three persons were proceeding on the
NC: 2024:KHC-D:15772-DB
motorcycle, the rider of the motorcycle cannot be held
responsible for 50% negligence. The observation of the Tribunal
that, as per Ex.P3-Spot Panchanama, rider of the motorcycle,
in which, the claimant was proceeding, has deviated from his
side while riding the motorcycle and caused the accident, has
no basis. Hence, finding of the Tribunal is prima facie error and
illegal on the factual aspects of the case. It is contended that
the complaint, FIR and charge sheet is against respondent
No.1, who in turn pleaded guilty to the said aspect and same
was admitted in the evidence of RW1, thus, there was no
reason for the Tribunal to hold that the rider of the motorcycle
bearing registration No.KA-49/J-6384 has contributed
negligence. It is contended that the claimant is a 3rd party to
the accident and thereby entitled to recover compensation of its
entirety from respondents.
7. The counsel further contended that the Tribunal
committed an error in considering permanent physical disability
and loss of earning capacity at 10% to the whole body, even
though PW2-Doctor, who treated the appellant has assessed
the permanent physical disability to an extent of 50% to the
right lower limb as per Ex.P13, in view of the claimant
NC: 2024:KHC-D:15772-DB
sustained fracture of compound comminuted of upper 1/3rd
right tibia and fibula with implants and right leg deformity as
per Ex.P5-Wound Certificate. He further contended that the
compensation awarded by the Tribunal under each heads was
not just and reasonable. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the
respondent/insurer supports the impugned judgment and
award of the Tribunal and submits that considering the oral and
documentary evidence on record, the Tribunal awarded just
and reasonable compensation under each heads, which does
not call for interference at the hands of this Court. Thus, he
prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the following points that
would arise for our consideration in this appeal:
1) Whether the Tribunal is justified in saddling liability
to an extent of 50% each on riders of both
motorcycles, as the riders of both motorcycles
contributed negligence?
NC: 2024:KHC-D:15772-DB
2) Whether the quantum of compensation awarded by
the Tribunal is just and reasonable or does it call
for enhancement?
Contributory Negligence:
10. It is not in dispute that, as on the date of the
accident, the claimant was riding the motorcycle bearing
registration KA-49/J-6384 and there was head on collusion of
two motorcycles. As per the contention of the claimant, the
rider of another motorcycle bearing registration No.KA-49/J-
4964 came from opposite direction in a rash and negligent
manner and dashed to the motorcycle of the claimant. To
substantiate his contention, the claimant relied upon Ex.P1-
complaint, Ex.P2-FIR, Ex.P3-Spot Panchanama & Ex.P4-IMV
Report. These documents clearly establish that on 25.11.2014,
at 7 p.m., the claimant with his labourers was returning from
Gokak to Bilakundi, at that time, he was proceeding with two
persons, the claimant was sitting in the middle, hence, it clearly
establishes that three persons were travelling in motorcycle
bearing registration No.KA-49/J-6384, wherein the claimant
was travelling as pillion rider and this aspect is admitted in the
cross-examination of PW1. Further, one Sanju Kaparatti had
NC: 2024:KHC-D:15772-DB
no DL and charge sheet was filed against him, who in turn,
pleaded guilty to the charge and accordingly, deposited fine
before the Court. Further, as per the admission made by the
claimant, at the time of the accident, there was little dark and
he was not in a position to see the registration number of
opposite vehicle. He further admitted that the rider of the
motorcycle did not possess valid and effective DL as on the
date of the accident. Further, as per Ex.P3-Spot Panchanama, it
reveals that Koujalagi to Gokak road runs from East to West
towards southern side, 5ft from edge of tar road, scene offence
is shown from mahazar and width of road is 15ft. As per
complaint and charge sheet, the motorcycle of the claimant was
moving from Gokak to Koujalagi, therefore, motorcycle of the
claimant was expected to be on northern side of the road and
opposite motorcycle rider moved towards Gokak from Koujalagi
was expected to be on southern side. It shows that the rider of
claimant's motorcycle was on wrong side of the road and he
was not on his left side of the road. Thus, rider of the
motorcycle of the claimant was negligent in occurrence of the
accident. Therefore, the Tribunal has rightly saddled liability of
50% on the rider of the motorcycle of the claimant and 50% on
NC: 2024:KHC-D:15772-DB
the rider of the motorcycle bearing registration No. KA-49/J-
4964.
Quantum of compensation:
11. As per Ex.P5-Wound Certificate, the claimant has
sustained fracture of compound comminuted of upper 1/3rd
right tibia and fibula with implants. The claimant was treated
at Dr. B.A. Matte's Hospital, Gokak for a period of 15 days. The
injuries sustained by the claimant and treatment taken by him
are supported by oral and documentary evidence on record.
PW2-Dr.Bashir Amed assessed the disability of the claimant at
50%, however, the Tribunal assessed the disability at 10%,
which in our view is on the lower side. Taking note of nature of
injuries sustained by the claimant and also duration of
treatment taken by him in the hospital, it is just and
appropriate to re-assess the disability of the injured at 17% to
the whole body.
12. The Tribunal assessed the notional income of the
injured at Rs.20,000/- per month, taking note of his avocation,
as he was working in KEB on contract basis. There is no dispute
with regard to age of the injured as 35 years and also
- 10 -
NC: 2024:KHC-D:15772-DB
appropriate multiplier applicable to his age group is '16'. Thus,
loss of future income of the claimant is reckoned as under:
Rs.20,000 x 12 x 16 x 17/100 = Rs.6,52,800/-
13. In this case, admittedly, the claimant has sustained
fracture of tibia and fibula and was an inpatient in the hospital
for a period of 15 days. The Tribunal awarded a meager
amount of Rs.25,000/- under the head of pain and suffering.
Therefore, taking note of injuries and the fracture suffered by
the claimant, it would be just and appropriate to award a sum
of Rs.50,000/- under the head of pain and suffering as
against Rs.25,000/- awarded by the Tribunal.
14. The Tribunal awarded a sum of Rs.73,200/-
towards medical expenses, as per medical bills produced by
the claimant, which is just and reasonable and the same is
undisturbed.
15. No compensation has been awarded by the Tribunal
under the head of loss of amenities. Hence, under the said
head, a sum of Rs.25,000/- is awarded.
- 11 -
NC: 2024:KHC-D:15772-DB
16. The Tribunal awarded a sum of Rs.10,000/-
towards loss of income during laid-up period, which
appears to be very meager. The claimant was an inpatient in
the hospital for a period of 15 days. Hence, under the said
head, we award a sum of Rs.30,000/- as against Rs.10,000/-
awarded by the Tribunal.
17. The Tribunal awarded a sum of Rs.10,000/-
towards food & nourishment and Rs.5,000/- towards
travelling & incidental expenses, which are just and
reasonable. Thus, in all, the claimant is entitled to modified
compensation as under:
Pain and suffering Rs. 50,000/-
Loss of future income Rs.6,52,800/-
Loss of amenities Rs. 25,000/-
Medical expenses Rs. 73,200/-
Loss of income during laid-up period Rs. 30,000/-
Food & nourishment Rs. 10,000/-
Travelling & incidental expenses Rs. 5,000/-
------------------
Total Rs.8,46,000/-
------------------
18. Thus, the claimant is entitled to total compensation
of Rs.8,46,000/- as against Rs.5,07,200/- awarded by the
Tribunal. The claimant is entitled to compensation of
Rs.4,23,000/- (50% of total compensation of Rs.8,46,000/-).
19. In the result, we pass the following:
- 12 -
NC: 2024:KHC-D:15772-DB
ORDER
a) The appeal filed by the claimant is allowed
in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant is entitled to total compensation of
Rs.4,23,000/- as against Rs.2,53,600/-
awarded by the Tribunal.
c) The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till realization.
d) Respondent No.2/Insurer shall deposit the
enhanced compensation with accrued interest
before the Tribunal within six weeks from the
date of receipt of copy of this judgment.
e) Draw modified award accordingly.
f) Registry is directed to send a copy of this
judgment to the Tribunal forthwith.
g) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
JTR/ct-an
