Narasimha vs The New India Insurance Company Ltd
2024 Latest Caselaw 22269 Kant

Karnataka High Court

Narasimha vs The New India Insurance Company Ltd on 3 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:35751
                                                           MFA No. 4597 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 4597 OF 2020 (MV)
                      BETWEEN:
                      NARASIMHA
                      S/O BHIMANNA
                      NOW AGED ABOUT 51 YEARS
                      R/AT MADAPATNA
                      HARAGADDE POST
                      ANEKAL TALUK JIGANI
                      BENGALURU-560 105
                                                                   ...APPELLANT

                      (BY SRI. RANGEGOWDA N R.,ADVOCATE)

                      AND:
                      1. THE NEW INDIA INSURANCE COMPANY LTD.,
                         MOTOR THIRD PARTY CLAIMS
                         NO.8/2 MAHALAXMI CHAMBERS
                         M G ROAD BANGALORE-560 001.

Digitally signed by   2.    M/S TRANS SYSTEM LOGISTICS
HEMALATHA A                 INTERNATIONAL PVT LTD
Location: HIGH
COURT OF                    NO.68 BIDADI INDUSTRIAL AREA
KARNATAKA                   SECTOR-2 PHASE-2
                            RAMANAGARAM DISTRICT-562 109
                                                                ...RESPONDENTS


                      (BY SRI.A.R. LASHMI NARAYANA., ADVOCATE FOR R1:
                      NOTICE TO R2 IS DISPENSED WITH V/O DATED: 09.06.2022)


                             THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT

                      AGAINST THE JUDGMENT AND AWARD DATED: 08.11.2019
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                                           NC: 2024:KHC:35751
                                         MFA No. 4597 of 2020




PASSED IN MVC NO.1134/2018           ON THE FILE OF THE 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 ADMISSION, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE H.T. NARENDRA PRASAD


                    ORAL JUDGMENT

1. This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimant challenging by the judgment dated

08.11.2019 passed by MACT, Bengaluru in MVC

No.1134/2018.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 24.01.2018 when the claimant was

proceeding on motorcycle bearing registration No.KA-43-

E-1806 near Chikkathirupathi Village, Malur Taluk, Kolar

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District, at that time, tipper lorry bearing registration

No.KA-42-A-6875 being driven by its driver at a high

speed and in a rash and negligent manner, dashed to the

vehicle of the claimant. As a result of the aforesaid

accident, the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section 166 of the

Act, seeking compensation. It was pleaded that he spent

significant amount towards medical expenses, conveyance

charges and other related costs. It was further pleaded

that the accident occurred solely on account of rash and

negligent driving of the offending vehicle by its driver.

4. Upon service of notice, the respondent No.1

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.2, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

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5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

the evidence. The claimant, in order to prove the case,

examined himself as PW-1, and Dr.Nagaraj.B.N. was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P16. On behalf of the respondents, one

witness was examined as RW-1 and got exhibited

documents namely Ex.R1 to Ex.R3. The Claims Tribunal,

by the impugned judgment, inter alia, held that the

accident took place on account of contributory negligence,

as a result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.14,16,500/- along with interest at the

rate of 7% p.a. and directed the Insurance Company to

deposit 70% of the compensation amount along with

interest. Being aggrieved, the present appeal has been

filed.

6. The learned counsel for the claimant has raised the

following contentions:

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Re: Negligence

Immediately after the accident, complaint has been

lodged and FIR has been registered against the driver of

the lorry. The police after thorough investigation has filed

charge sheet against the driver of the lorry. It is admitted

fact that the lorry was proceeding on the middle of the

road and width of the road is only 20 feet. There was no

space for the motorcycle to pass. The driver of the lorry

came in a rash and negligent manner in opposite direction

and dashed to the motorcycle and same is evident from

the damages caused to the lorry as per IMV report. The

accident occurred due to sole negligence of the driver of

the lorry. But the Tribunal has erred in holding that the

claimant has contributed to the accident to the extent of

30%.

Re: Quantum of compensation

a) Firstly, the claimant asserts that he was earning

Rs.20,000/- per month by working as Mason. However,

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the Tribunal has erred in taking the income as merely as

Rs.8,000/- per month.

b) Secondly, the claimant has examined the doctor as

PW-2. The Tribunal undervalued the claimant's whole-body

disability at 22%, contradicting the evidence of the doctor

that the claimant suffered 94% disability to particular limb

and 31% to whole body.

c) Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 45 days. Even after discharge from the

hospital, he was not in a position to discharge his regular

work. He has suffered lot of pain during treatment.

Considering the same, the compensation awarded by the

Tribunal under the heads of 'loss of amenities', 'pain and

sufferings' and other incidental expenses are on the lower

side.

With the above contentions, the learned counsel

sought to allow the appeal.

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7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

Re: Negligence

The accident occurred due to negligence on the part

of claimant as well as the driver of the lorry. The width of

the road is only 20ft and 5ft foothpath on either sides of

the road. The rider of the motorcycle was proceeding in

the middle of the road. The accident occurred due to head

on collusion. Due to the impact, the rider fell down and

sustained injuries. Hence, the Tribunal has rightly held

that the claimant has also contributed to the accident to

the extent of 30%. There is no error in the said finding of

the Tribunal.

Re: Quantum of compensation:

a) Firstly, the assertion of claimant that he was earning

Rs.20,000/- per month, remains unsubstantiated due to

lack of documentary evidence. In the absence of proof of

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income, the Tribunal has assessed the income of the

claimant notionally.

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 22%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal under

the heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are just and reasonable and it

does not warrant interference.

d) Lastly, in light of the Division Bench decision of this

Court in the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020), the

rate of interest awarded by the Tribunal at 7% p.a. on the

compensation amount appears excessive.

With the above contentions, the learned counsel

sought to dismiss the appeal.

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8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

NEGLIGENCE:

9. It is the specific case of the claimant that on

24.01.2018 when the claimant was proceeding on

motorcycle bearing registration No.KA-43-E-1806 near

Chikkathirupathi Village, Malur Taluk, Kolar District, at that

time, tipper lorry bearing registration No.KA-42-A-6875

being driven by its driver at a high speed and in a rash

and negligent manner, dashed to the vehicle of the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was hospitalized.

After recovering from the injuries, he filed the claim

petition seeking compensation.

To prove the case, the claimant has examined

himself as PW-1 and doctor has been examined as PW-2

produced 16 documents. On behalf of the respondent,

neither any witness was examined nor any document was

produced. In the evidence of PW-1, he has stated that

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immediately after the accident, complaint has been lodged

and FIR has been registered against the driver of the lorry.

The police after thorough investigation has filed charge

sheet against the driver of the lorry. The police have

drawn spot mahazar as per Ex.P-2. As per the spot

mahazar, the road is a tar road of Chikkatirupathi-

Sarjapura road and the accident took place near Balakere

tar road on its left side, measuring 20 feet in width having

5 feet footpath on either sides of the road, on the spot,

the offending container lorry was standing in the middle of

the road and the front side plate number and bumper were

pressed/bent inward and the TVC victor of the claimant fell

on the left side of the road on the west direction and front

shock absorber, front head, light domb, engine kicker,

petrol tank, fork and brakes of TVS motorcycle were

damaged. Therefore, it is clear that the accident has

occurred due to head on collusion of both the vehicles.

Taking into consideration the contents of complaint,

FIR, charge sheet, spot mahazar, IMV report, damages

caused to both the vehicles and gravity of injuries, I am of

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the considered opinion that both claimant as well as the

driver of the lorry have contributed to the accident.

However, it is held that the claimant has contributed to

the accident to the extent of 15% and driver of the lorry

has contributed to the accident to the extent of 85%.

Hence, the finding of the Tribunal regarding negligence is

modified to the said extent.

QUANTUM OF COMPENSATION

10. The claimant claims that he was earning Rs.20,000/-

per month. But he has not produced any documents to

substantiate his claim. Therefore, in the absence of proof

of income, notional income has to be assessed. According

to the guidelines issued by the Karnataka State Legal

Services Authority, for accidents occurred in the year

2018, notional income shall be taken at Rs.12,500/- p.m.

11. As per wound certificate, the claimant has sustained

facial injuries, left tibia fracture compound, degloving

injuries to left leg, left perilunate fracture dislocation and

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radial styloid fracture, left femur neck and shaft fracture,

left humerus fracture and right elbow dislocation. The

doctor in his evidence has stated that the claimant has

suffered disability of 94% to particular limb and 31% to

whole body. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

wound certificate, the whole body disability has to be

taken at 31%. The claimant is aged about 49 years at the

time of the accident and multiplier applicable to his age

group is '13'. Thus, the claimant is entitled for

compensation of Rs.604,500/- (Rs.12,500*12*13*31%)

on account of 'loss of future income'.

12. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 6

months. Consequently, the claimant is entitled for

compensation of Rs.75,000/- (Rs.12,500*6 months)

under the head 'loss of income during laid up period'.

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13. The claimant was hospitalized as an inpatient for

more than 45 days in the hospital and subsequently

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also undergone

surgery. Considering the prolonged pain during treatment

as well as the permanent disability certified by the doctor,

I am inclined to enhance the compensation awarded by

the Tribunal under the head of 'pain and sufferings' from

Rs.70,000/- to Rs.80,000/-.

14. Although the evidence of the doctor suggests that

the claimant requires approximately Rs.300,000/- for

removal of implants, the claimant has not provided any

estimate for future surgery. Considering the nature of the

injuries and the evidence of the doctor, I am inclined to

enhance the compensation awarded by the Tribunal under

the head of 'future medical expenses' from Rs.50,000/- to

Rs.75,000/-.

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15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

16. Thus, the claimant is entitled to the following

compensation:

                              As awarded         As awarded
                                by the             by this
  Compensation under           Tribunal             Court
    different Heads
                                      (Rs.)         (Rs.)

 Pain and sufferings                    70,000         80,000

 Medical expenses                      844,000        844,000

 Food, nourishment,                     30,000         30,000
 conveyance and
 attendant charges

 Loss of income during                  48,000         75,000
 laid up period

 Loss of amenities                     100,000        100,000

 Loss of future income                 274,560        604,500

 Future medical expenses                50,000         75,000

                 Total           14,16,560         18,08,500

17. In the result, the following order is passed:

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                                         NC: 2024:KHC:35751





                          ORDER


a)    The appeal is allowed in part.
b)    The judgment of the Claims Tribunal is modified.
c)    The claimant is entitled to a total compensation of
      Rs.18,08,500/-.
d)    Following the judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE' (supra), the enhanced compensation shall carry interest at 6% p.a.

e) The Insurance Company is directed to deposit 85% of the said total compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment. However, interest shall not be applicable to the compensation awarded under the head of 'future medical expenses'.

Sd/-

(H.T. NARENDRA PRASAD) JUDGE

DM