Karnataka High Court

Krishnaprasad vs Shekar on 10 September, 2024

                                                -1-
                                                              NC: 2024:KHC:36920
                                                         MFA No. 5480 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                      MISCELLANEOUS FIRST APPEAL NO.5480 OF 2021(MV-I)
                      BETWEEN:

                      KRISHNAPRASAD,
                      S/O LATE THIMMEGOWDA,
                      AGED ABOUT 35 YEARS
                      R/AT UDDURU VILLAGE,
                      KASABA HOBLI, HASSAN TALUK,
                      HASSAN DISTRICT- 573 201
                                                                    ...APPELLANT
                      (BY SRI. GIRISH B BALADARE, ADVOCATE)

                      AND:
                      1.    SHEKAR S/O GIRIYAPPA GOWDA,
                            NO.28, 1, MAIN ROAD, K.H.B.
                            COLONY, CHIKKAMAGALORE-577 101.

Digitally signed by   2.    THE MANAGER, UNITED INSURANCE COMPANY LTD.,
AASEEFA PARVEEN
Location: HIGH
                            BRANCH OFFICE, VENKATESHVARA BUILDING,
COURT OF                    GANDHI CIRCLE, HASSAN-573 201.
KARNATAKA
                                                               ...RESPONDENTS
                      (BY SRI. B.S. KRISHNA, ADVOCATE FOR R2;
                          R1 - SERVED, UNREPRESENTED)

                           THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
                      JUDGMENT AND AWARD DATED 18.11.2019 PASSED IN MVC
                      NO. 1676/2018 ON THE FILE OF THE 5TH ADDITIONAL
                      DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT,
                      HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
                      COMPENSATION      AND    SEEKING     ENHANCEMENT     OF
                      COMPENSATION AND ETC.
                                 -2-
                                               NC: 2024:KHC:36920
                                            MFA No. 5480 of 2021




    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA


                        ORAL JUDGMENT

Heard Sri. Girish.B.Baladare, learned counsel for the

appellant as well as Sri. B.S.Krishna, learned counsel for

respondent No.2-Insurance Company.

2. Challenge in this appeal is the order that is

rendered by the Additional Motor Accidents Claims Tribunal,

Hassan in MVC No.1676/2018 dated 18.11.2019.

3. On hearing learned counsel Sri. Girish.B.Baladare

and learned counsel Sri. B.S.Krishna for respondent No.2, the

two points that are required to be discussed and decided are as

under:

1. Whether the appellant contributed for the accident to occur as observed by the Tribunal?

2. Whether the compensation awarded by the Tribunal is just and reasonable and if not, to what amount the appellant is entitled to?

NC: 2024:KHC:36920

4. The appellant moved an application seeking

compensation of Rs.10,00,000/- in total. The Tribunal through

the impugned order held that the compensation which the

appellant is entitled to is Rs.3,67,000/-. However, giving a

finding that the contributory negligence on the part of the

appellant is 20%, directed the respondents to pay a sum of

Rs.2,94,000/-.

5. The manner of happening of the accident as

projected by the appellant before the Tribunal is that on

18.4.2018 at about 2.30 p.m., while the appellant was

proceeding on his motorcycle on Hassan-Belur road and when

he reached Manachanahalli, he attempted to turn right by

showing indicator and while he was turning his bike, a Car

bearing Registration No.KA 18 P 3111, which came from Belur

side, dashed against his bike and the Car was driven by its

driver in a rash and negligent manner, due to which the

accident occurred.

6. Arguing the matter, learned counsel

Sri. Girish.B.Baladare submits that though the Tribunal dealing

with issue No.1 with regard to rash and negligent driving of the

NC: 2024:KHC:36920

driver of the Car, gave a finding in affirmative and held that the

accident occurred due to rash and negligent driving of the

driver of the Car, however, after discussing about the quantum

which the appellant is entitled to receive as compensation,

again gave a finding that the contributory negligence on the

part of the appellant is 20%, which is improper. Learned

counsel Sri. Girish.B.Baladare submits that without there being

any evidence on record to show that the appellant was

negligent, the Tribunal attributed contributory negligence which

is unjustifiable.

7. Contradicting the submission thus made,

Sri. B.S.Krishna, learned counsel for respondent No.2 contends

that the appellant was not holding driving licence to drive the

bike and indeed, the accident occurred due to his negligence.

Having perceived the said fact and the manner of happening of

the accident, the Tribunal rightly fastened the liability against

the appellant also and therefore, the observations made by the

Tribunal with regard to contributory negligence needs no

interference.

NC: 2024:KHC:36920

8. It is not in dispute that the material available before

the Tribunal to decide the aspect of the negligence is the

evidence of PW.1 and Exs.P1 to P7 alone. The evidence of

PW.1 and Exs.P1 to P7 goes to show that the accident occurred

due to rash and negligent driving of driver of the Car.

The owner of the Car for the reasons best known did not

contest the case. No attempt was made by respondent No.2-

Insurance Company either to produce the evidence of driver of

the Car or any other witness who can depose about manner of

happening of the accident.

9. The fact that the police after investigation filed

charge sheet against the driver of the Car is not in dispute.

There was no material on record before the Tribunal to infer

that the appellant contributed the accident to occur. Also, as

rightly contended by Sri. Girish.B.Baladare, the Tribunal at

Para-14 of the impugned order, gave a clear finding that the

evidence before the Court and the investigation clearly shows

that the driver of the Car drove the Car in a rash and negligent

manner. Such being the situation, this Court is of the view that

only because the appellant did not produce his driving licence,

he cannot be held to be negligent. Therefore, this Court holds

NC: 2024:KHC:36920

that the observation made by the Tribunal with regard to

contributory negligence on the part of the appellant is required

to be set aside.

10. Coming to the quantum of amount that is awarded

as compensation, the version of the appellant is that as

Plumber and Agriculturist he was earning Rs.30,000/- per

month. However no substantive proof was produced by the

appellant in proof of his occupation and earnings by the date of

accident. The submission that is made by learned counsel

Sri. Girish.B.Baladare is that the accident occurred in the year

2018 and for the relevant period even Karnataka State Legal

Authorities is taking the notional income as Rs.12,500/- per

month and the same figure is required to be taken. The said

request and statement is not denied by Sri. B.S.Krishna,

learned counsel for respondent No.2. Also the said request

appears to be justifiable.

11. The age of the appellant admittedly was 36 years

by the date of accident. This Court does not find any ground to

interfere with the observation made by the Tribunal that the

disability in respect of whole body is 11%. Having considered

NC: 2024:KHC:36920

the age of the appellant as 36 years by the date of accident,

40% of the actual earnings are required to be added towards

future prospects as per the decision of the Hon'ble Apex Court

in the case of National Insurance Company Limited vs. Pranay

Sethi and others reported in (2017) 16 SCC 680.

Also appropriate multiplier to be applied is '15' as per the

decision of Hon'ble Apex Court in the case of Sarla Verma and

others v. Delhi Transport Corporation and another reported in

2009 SAR (civ) 592. Thus, loss of future earnings due to

permanent physical disability is as under:

Amount Description In Rs.

              Notional monthly income                           12,500-00
              Annual Income (12,500X12)                       1,50,000-00
              Add    40%       towards     future             2,10,000-00
              prospects (1,50,000+40%)
              Apply appropriate multiplier '15'    31,50,000-00
              Loss     of    future    earnings,    3,46,500-00
              permanent     physical    disability
              being 11%


        12.     Thus,   the    appellant     is    entitled    to   a   sum   of

Rs.3,46,500/- towards loss of future earnings on account of

permanent physical disability. The appellant admittedly

sustained comminuted fracture of left femur, which is grievous

in nature and also sustained a simple injury. It is clearly

NC: 2024:KHC:36920

brought on record that the appellant was admitted to NDRK

Hospital for treatment and he took treatment as inpatient for

about seven days. It is not in dispute that the appellant

underwent a surgery during the course of treatment. Having

considered the nature of injury sustained and the treatment

taken, this Court is of the view that the appellant would not

have attended his normal pursuits atleast for a period of three

months. Thus, loss of earnings during laid up period comes to

Rs.37,500/- (12,500X3). So far as award of Rs.30,000/- under

the head pain and sufferings; Rs.1,09,000/- is under the head

medical expenses; Rs.30,000/- towards future medical

expenses is concerned, the grant is justifiable. However, the

amount granted under other heads requires slight

enhancement. Also, this Court is of the view that the appellant

is entitled to a sum of Rs.5,000/- towards transportation

charges. Thus, the total compensation which the appellant is

entitled under the different heads is under:

Amount Sl No. Compensation in Rs.

1 Pain and suffering 30,000-00 2 Medical expenses 1,09,000-00 3 Attendant charges 10,000-00

NC: 2024:KHC:36920

4 Food and nourishment 10,000-00 Loss of earning during laid 5 37,500-00 up period 6 Loss of future earnings 3,46,500-00 7 Future medical expenses 30,000-00 8 Transportation charges 5,000-00 Total 5,78,000-00