Karnataka High Court
Jagadish S/O Prabhakar vs Neelkanth S/O Halappa And Ors on 5 September, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
-1-
NC: 2024:KHC-K:6696
MFA No. 201160 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO. 201160 OF 2017 (MV-I)
BETWEEN:
JAGADISH S/O PRABHAKAR
AGE:27 YEARS, OCC:HELPER, NOW NIL,
R/O. H.NO.4/104, RATKAL VILLAGE,
TQ.CHINCHOLI, DIST.KALABURAGI-585101.
...APPELLANT
(BY SMT. SRIDEVI J. TUPPAD, ADVOCATE)
AND:
1. NEELKANTH S/O HALAPPA
Digitally signed AGE:MAJOR, OCC:BUSINESS & OWNER OF HERO
by SUMITRA HONDA M/C.BEARING NO.KA/32/R/5362
SHERIGAR R/O. H.NO.E/7/56/1, RATKAL VILLAGE
Location: HIGH TQ.CHINCHOLI, DIST.KALABURAGI-585102.
COURT OF
KARNATAKA
2. THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LTD,
DIVISIONAL OFFICE N.G.COMPLEX, 1ST FLOOR,
OPP:MINI VIDHANA SOUDHA,
GULBARGA - 585102.
3. LIYAQUAT ALI S/O AMEER SAB
AGE:NOT KNOWN, OCC:OWNER OF BAJAJ
DISCOVERY MOTORCYCLE BEARING
REG.NO.KA.32/EC/6179
R/O. H.NO.58/1 NAGUR VILLAGE,
-2-
NC: 2024:KHC-K:6696
MFA No. 201160 of 2017
TQ.& DIST.KALABURAGI-585101.
4. BHARATO AXA GENERAL INSURANCE CO. LTD.
1STFLOOR, FERNS ICON SURVEY NO.28,
DODENEKUNDI OF OUTER RING ROAD,
BANGALORE, KARNATAKA - 560037
REPRESENTED BY ITS AUTHORIZED OFFICER.
...RESPONDENTS
(BY SRI SANJEEVKUMAR C. PATIL, ADV. FOR R1;
SRI SUDHARSHAN M. ADV. FOR R2;
SRI MANJUNATH MALLAYYA SHETTY, ADV. FOR R4;
NOTICE TO R3-SERVED)
THIS MFA FILED U/S. 173(1) OF MV ACT, PRAYING TO
THE JUDGMENT AND AWARD DATED-25.05.2017 PASSED BY II
ADDL.SENIOR CIVIL JUDGE AND MACT AT GULBARGA IN
MVC.NO.892/2013 AND THE TOP NOTED APPEAL MAY KINDLY
BE ALLOWED AND AWARD THE COMPENSATION AS PRAYED IN
THE CLAIM PETITION
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. The claimant is in appeal challenging the exoneration
of liability of the insurer of the motorcycle in which he was
riding pillion and is also seeking enhancement.
2. The occurrence of the accident is not in dispute.
NC: 2024:KHC-K:6696
3. The finding recorded by the Tribunal is that, the
claimant was riding pillion in a motorcycle which was
admittedly insured only with the statutory policy and this
had collided with another motorcycle which was covered
under a comprehensive policy. The Tribunal has come to
the conclusion that both the riders of the motorcycle were
responsible for the accident as the charge sheet was filed
against both of them. It has accordingly held that the
insurer of the motorcycle which was covered with a
comprehensive policy to indemnify the award to the extent
of 50% and since the motorcycle in which the claimant
was traveling was insured only with the statutory policy
and the risk of the pillion raider was not covered, it has
made the owner liable.
4. It is to be stated here at the outset that merely
because a charge sheet is filed by the police against a
particular driver that would not by itself lead to an
inference that only that driver was responsible. The
question of negligence would have to be established
NC: 2024:KHC-K:6696
independently before the Tribunal and in these
proceedings the Tribunal can no doubt look into the police
records to ascertain this particular aspect, but the filing of
the charge sheet or the police records by themselves
would not be conclusive evidence. In cases where
negligence is alleged, it would be necessary for the person
who pleads negligence to adduce the best evidence
available to establish this fact.
5. In an accident of this nature, where two vehicles
were involved and both the riders were available, the
insurer or the owner who pleads negligence would had to
necessarily adduce the evidence of the rider to establish
this fact. However, in the instant case, no such an
attempt has been made and only the evidence of the
claimant of the pillion rider is available.
6. In this case, the claimant has alleged negligence only
against the owner of the rider of the motorcycle which was
covered with a comprehensive policy and this assertion
has not been countered by the evidence adduced of the
NC: 2024:KHC-K:6696
rider of the motorcycle. It is therefore clear that the
assertion of the claimant will have to be accepted.
7. It will also have to be kept in mind that it is open for
the claimant to proceed against the person whom he
presumes to be negligent for the accident and establish it
before the Tribunal, which in this case has been done by
the adducing of evidence of the claimant. The view of the
Tribunal has assessed the disability at 12% to the whole
body, which in the facts of this case is just and proper.
8. In order to arrive at the loss of dependency, the
Tribunal has determined the monthly income, notionally at
Rs.6,000/-. As there is no credible evidence to ascertain
the actual monthly income, it would be appropriate and
prudent to adopt the monthly income determined by
Karnataka State Legal Services Authority, which, for the
accident of the year 2013, would be Rs.7,000/-.
9. As the claimant was aged 23 years, a multiplier of
'18' would have to be applied. Consequently, the claimant
NC: 2024:KHC-K:6696
would be entitled to a sum of Rs.1,81,440/- (Rs.7,000 x
12 x 18 x 12%) towards 'loss of future income'.
10. The sum of Rs.52,265/- awarded as medical
expenses by the Tribunal, being based on documentary
evidence, does not call for modification and hence
confirmed.
11. The Tribunal has awarded a sum of Rs.40,000/-
towards 'pain and suffering' which is just and proper and
have to be confirmed.
12. Having regard to the length of the stay of the
claimant in the hospital, the claimant would also be
entitled to 'attendant charges, conveyance, food and
nourishment' at Rs.25,000/- as against the sum of
Rs.15,000/- awarded by the Tribunal.
13. Having regard to the lasting effects of the injuries on
the claimant, the claimant would be entitled to a sum of
Rs.25,000/- towards loss of amenities, as against the
sum of Rs.10,000/- awarded by the Tribunal.
NC: 2024:KHC-K:6696
14. As a consequence, the amount of Rs.18,000/-
awarded by the Tribunal towards 'loss of income during
the laid up period' would also stand enhanced to
Rs.21,000/- (Rs.7,000X 3months).
15. Consequently the award of the Tribunal is modified
and the claimant would be entitled to the following
compensation:
As awarded As awarded
Sl. by the by this
Nature of Heads Tribunal Court
No.
(In Rs.) (In Rs.)
1. Pain and sufferings 40,000 40,000
2. Loss of future income 1,55,520 1,81,440
3. Medical expenses 52,265 52,265
Loss of income during 18,000 21,000
4.
the laid up period
Conveyance, food, 15,000 25,000
5. nourishment, attendant
charges
6. Loss of amenities in life 10,000 25,000
Total 2,90,785 3,44,705
NC: 2024:KHC-K:6696
16. Thus, the claimant is held entitled to the total
compensation of Rs.3,44,705/- as against Rs.2,90,785/-,
which is payable by the owner of the motor cycle bearing
Registration No.KA32/EC/6179 along with interest at the
rate of six per cent per annum from the date of petition till
its realization.
17. The apportionment, deposit and release of the
enhanced compensation amount shall be made as per the
ratio adopted by the Tribunal.
The appeal is accordingly allowed in part.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
DHA
