Karnataka High Court
Sri. Sriramappa vs Sri. Ramanna on 9 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 4887 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4887 OF 2019 (MV)
BETWEEN:
SRI. SRIRAMAPPA
S/O LATE KONDAPPA
NOW AGED ABOUT 53 YEARS
ANEPURA VILLAGE
NIDARAMANGALA POST
MALUR TALUK, KOLAR DISTRICT.
...APPELLANT
(BY SRI. GOPAL KRISHNA N.,ADVOCATE)
AND:
1. SRI. RAMANNA
S/O NARAYANAPPA
MAJOR IN AGE
RESIDING AT KARANJIKATTE
KHADRIPURA MAIN ROAD
KOLAR TOWN - 563 101.
Digitally signed by 2. BHARATHI AXA GENERAL
HEMALATHA A INSURANCE COMPANY LTD.,
Location: HIGH 1ST FLOOR, FERMS ICON
COURT OF
KARNATAKA SURVEY NO.28, DODDA NEKKUNDI
K.R.PURAM HOBLI
BENGALURU - 560 037
REP. BY ITS MANAGER.
...RESPONDENTS
(BY SRI. B PRADEEP., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 30.05.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.04.2018
PASSED IN MVC NO.5828/2016 ON THE FILE OF THE VII
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MFA No. 4887 of 2019
ADDITIONAL SCJ & XXXII ACMM, MEMBER, MACT-3,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, 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
20.04.2018 passed by MACT, Bengaluru in MVC
No.5828/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 14.03.2016 when the claimant was
proceeding on TVS Heavy Duty Moped bearing registration
No.KA-53-K-5477 to his village Anepura, Malur Taluk from
Honnenahalli, Kolar, at that time, goods tempo bearing
registration No.KA-08-2232 being driven by its driver at a
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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.2
appeared through counsel and filed written statement
denying the averments made in the claim petition. The
respondent No.1, despite service of notice, did not appear
before the Tribunal and was placed ex-parte.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter, recorded
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the evidence. The Tribunal, by impugned judgment and
award has partly allowed the claim petition and held that
the claimant is entitled to a compensation of Rs.803,200/-
along with interest at the rate of 8% p.a. and directed the
Insurance Company to deposit 90% 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:
NEGLIGENCE:
The Tribunal has erred in answering issue No.1 in the
affirmative and holding that the claimant has contributed
to the accident to the extent of 10%. The driver of the
offending vehicle alone is negligent in causing the
accident. The Tribunal has attributed negligence on the
claimant only on the ground that he was not holding valid
driving licence as on the date of accident. The said finding
of the Tribunal is contrary to the materials available on
record.
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QUANTUM OF COMPENSATION
a) Firstly, the claimant asserts that he was earning
Rs.20,000/- per month by working as agricultural coolie.
However, the Tribunal has erred in taking the income as
merely as Rs.7,500/- per month.
b) Secondly, the claimant has examined the doctor as
PW-2. As per the evidence of the doctor, the claimant
suffered disability of 50% to left lower limb, 10% to right
upper limb and 30% to whole body. Due to the accident,
the claimant has sustained grievous injuries. He was
treated as inpatient for a period of 46 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:
NEGLIGENCE:
At the time of the accident, the claimant/rider of the
motorcycle was not holding valid driving licence.
Therefore, the Tribunal has rightly held that claimant has
contributed to the accident to the extent of 10%.
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
income, the Tribunal has assessed the income of the
claimant notionally.
b) Secondly, 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
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other incidental expenses are just and reasonable and it
does not warrant interference.
c) 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 8% p.a. on the
compensation amount appears excessive.
With the above contentions, the learned counsel
sought to dismiss the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
NEGLIGENCE:
9. The specific case of the claimant is that on
14.03.2016 when the claimant was proceeding on TVS
Heavy Duty bearing registration No.KA-53-K-5477 to his
village Anepura, Malur Taluk from Honnenahalli, Kolar, at
that time, goods tempo bearing registration No.KA-08-
2232 being driven by its driver at a high speed and in a
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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, the claimant has filed
the claim petition seeking compensation.
10. On the basis of the pleadings of the parties, the
Tribunal has framed issues. Issue No.1 reads thus:
"1. Whether petitioner proves that he has
sustained injuries in the accident occurred on
14.03.2016 at about 1.30 p.m. Sai Hanuman
Choultry, on Bengaluru-Chennai NH-75, Kolar Bye
pass road, Kolar due to rash and negligent driving of
the driver of Goods Tempo (LGV) bearing Reg.No.KA-
08-2232 as alleged in the petition?"
11. On appreciation of the evidence of the parties and
materials available on record, the Tribunal has answered
the said issue in affirmative holding that the driver of the
goods tempo alone was negligent in causing the accident.
But, however, it has erred in holding that claimant has
contributed to the accident to the extent of 10% on the
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ground that the claimant was not holding valid driving
licence as on the date of accident. Without there being any
finding by the Tribunal that the claimant has contributed
to the accident, the Tribunal ought not to have attributed
any negligence on the part of the claimant.
12. Further, the Apex Court in the case of Dinesh Kumar
J. @ Dinesh J, Vs. National Insurance Co. Ltd. Reported in
(2018) 1 SCC 750 in paragraphs 7 and 8 has held as
follows:
"7. Insofar as the judgment of the High Court is
concerned, the Division Bench has placed a
considerable degree of importance on the fact that
there was no visible damage to the lorry but that it
was the motor cycle which had suffered damage and
that there was no eye-witness. We are in agreement
with the submission which has been urged on behalf
of the appellant that plea of contributory negligence
was accepted purely on the basis of conjecture and
without any evidence. Once the finding that there
was contributory negligence on 1 (2008) 12 SCC
436 the part of the appellant is held to be without
any basis, the second aspect which weighed both
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with the tribunal and the High Court, that the
appellant had not produced the driving licence, would
be of no relevance. This aspect has been considered
in a judgment of this Court in Sudhir Kumar (2008)
12 SCC 436 where it was held as follows :
"9.If a person drives a vehicle without a licence,
he commits an offence. The same, by itself, in
our opinion, may not lead to a finding of
negligence as regards the accident. It has been
held by the courts below that it was the driver
of the mini truck who was driving rashly and
negligently. It is one thing to say that the
appellant was not possessing any licence but no
finding of fact has been arrived at that he was
driving the two-wheeler rashly and negligently.
If he was not driving rashly and negligently
which contributed to the accident, we fail to see
as to how, only because he was not having a
licence, he would be held to be guilty of
contributory negligence.
10. The matter might have been different if by
reason of his rash and negligent driving, the
accident had taken place."
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8. In view of the above position, we are of the
view that the deduction of forty per cent which was
made on the ground of contributory negligence is
without any basis. Accordingly, we direct that the
appellant shall be entitled to an additional amount of
Rs.4.60 lakhs which was wrongly disallowed."
13. In view of the above judgment of the Apex Court, it
is very clear that unless the claimant has contributed to
the accident, it cannot be held that the claimant has
contributed to the accident only on the ground that
claimant was not holding valid driving licence as on the
date of accident.
14. Therefore, the finding of the Tribunal on negligence
that the claimant has contributed to the accident to the
extent of 10% on the ground that the claimant was not
having valid driving licence as on the date of accident, is
contrary to the provisions of MV Act and materials
available on record. Hence, the said finding of the Tribunal
is set aside. It is held that the driver of the goods tempo
alone is negligent in causing the accident and the insurer
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of the goods tempo is liable to pay the entire
compensation to the claimant.
QUANTUM OF COMPENSATION:
15. 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
2016, notional income shall be taken at Rs.9,500/- p.m.
16. As per wound certificate, the claimant has sustained
wound on anterior aspect of proximal 1/3rd of left leg,
swelling and tenderness of distal 1/3rd of right forearm.
Taking into consideration the deposition of the doctor and
injuries mentioned in the wound certificate, the Tribunal
has rightly taken the whole body disability at 30%. The
claimant is aged about 53 years at the time of the
accident and multiplier applicable to his age group is '11'.
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Thus, the claimant is entitled for compensation of
Rs.376,200/- (Rs.9,500*12*11*30%) on account of 'loss
of future income'.
17. 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.57,000/- (Rs.9,500*6 months) under
the head 'loss of income during laid up period'.
18. The claimant was hospitalized as an inpatient for
more than 46 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 'loss of amenities' from
Rs.45,000/- to Rs.65,000/-.
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19. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
20. 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 70,000
Medical expenses 346,200 346,200
Loss of amenities, food, 45,000 65,000
nourishment,
conveyance and
attendant charges
Loss of income during 45,000 57,000
laid up period
Loss of future income 297,000 376,200
Total 803,200 914,400
21. In the result, the following order is passed:
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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.914,400/-.
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 the
entire 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.
f) In view of the order dated 09.09.2024 passed by this
Court, the claimant is not entitled to interest on the
enhanced compensation for the delayed period of
318 days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
