Karnataka High Court

Sri.Jagadeesh Ram Prajapath vs Nayaz Ahmed on 3 June, 2025

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                                                                        NC: 2025:KHC:19060
                                                                     MFA No. 6706 of 2014


                                 HC-KAR




                                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                            DATED THIS THE 3RD DAY OF JUNE, 2025

                                                          BEFORE

                                           THE HON'BLE MR JUSTICE UMESH M ADIGA

                                      MISCELLANEOUS FIRST APPEAL NO.6706 OF 2014(MV-I)

                                 BETWEEN:

                                       SRI.JAGADEESH RAM PRAJAPATH
                                       S/O SRI GANESH RAM,
                                       AGED ABOUT 37 YEARS
                                       R/A 2ND CROSS,
                                       CHRISTIAN STREET
                                       SUNANDAMMA W/O GOVINDAIAH
                                       TUMKUR.
                                                                              ...APPELLANT
                                 (BY SRI.SUNIL K.N., ADVOCATE FOR
                                     SRI. RAMESH K.R., ADVOCATE)

                                 AND:

                                 1.    NAYAZ AHMED
                                       @ M R NAYAZ AHMED
                                       SINCE DECEASED BY HIS LRS
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
KARNATAKA                              1(A) M S NOORJAN,
                                            W/O M R NAYAZ AHMED
                                            @ M R NAYAZ AHMED,
                                            AGED ABOUT 25 YEARS,

                                       1(B) REHAN
                                            S/O M R NAYAZ AHMED
                                            @ M R NAYAZ AHMED
                                            AGED ABOUT 4 YEARS, MINOR,
                                            REPRESENTED BY HIS NATURAL
                                            GUARDIAN MOTHER M S NOORJAN,
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                                     MFA No. 6706 of 2014


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     1(C) M M RIYAZ
          S/O ABDUL MALIK,
          AGED ABOUT 60 YEARS

     1(D) MUNEERA
          W/O M M RIYAZ,
          AGED ABOUT 52 YEARS

     ALL ARE RESIDING AT
     VINOBA NAGAR, TUMKUR-572 101.

2.   THE MANAGER
     THE ORIENTAL INSURANCE CO., LTD.,
     BRANCH OFFICE
     TGMA BUILDING,
     J C ROAD,
     TUMKUR- 572 101.
                                            ...RESPONDENTS

(BY SRI.H.C.VRUSHABHENDRAIAH, ADVOCATE FOR R-2,
    R1(A), R1(C), R1(D) - SERVICE OF NOTICE IS
    HELD SUFFICIENT, VIDE ORDER DATED 31.10.2019,
    R1(B) MINOR, REPRESENTED BY R1(A) )

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:14.07.2014        PASSED IN MVC
NO.772/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MACT, TUMKUR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


      THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                               NC: 2025:KHC:19060
                                            MFA No. 6706 of 2014


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CORAM:      HON'BLE MR JUSTICE UMESH M ADIGA
                      ORAL JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 14th July 2014, passed by the

II Addl.District and Sessions Judge and MACT, Tumakuru,

(for short `Tribunal'), in MVC No.772/2012, seeking

enhancement of compensation.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Tribunal.

3. Brief facts of the case are that, on 01.10.2011,

around 11.30 p.m., the claimant was going on the

motorcycle bearing registration No.KA-06-V-2207

alongwith pillion rider Jayaprakash. When he reached

Bhavikatte petrol bunk on National Highway No.4, the said

vehicle met with an accident due to rash and negligent

riding of the motorcycle bearing registration No.KA-06-EC-

4236. As a result of the impact, claimant sustained

injuries. Immediately, he was shifted to NIMHANS

Hospital, Bengaluru and thereafter, to M.S.Ramaiah

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Hospital, wherein he took treatment as inpatient. For the

said reasons, claimant prayed for awarding of

compensation.

4. Before the Tribunal, respondent No.1 filed written

statement denying the averments made in the claim

petition. It is contended that the claimant himself was

responsible for causing the accident in question and

prayed to dismiss the claim petition.

5. The respondent No.2/insurer of the offending

motorcycle denied the contents of the claim petition. It is

stated that riders of both the motorcycles were not holding

effective and valid driving licence. Therefore, respondent

No.2 is not liable to pay the compensation. With these

reasons, prayed to dismiss the claim petition.

6. From the rival contentions of the parties, the

Tribunal framed necessary issues.

7. Claimant to prove his case himself examined as

PW-1 and examined the doctor as PW-2 and marked 15

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documents from Exs.P-1 to P-15. On behalf of the

respondents, one witness was examined as RW-1 and no

documents were marked.

8. After hearing both parties, the Tribunal awarded

following amounts of compensation:

    Pain and agony                              Rs.40,000/-

    Conveyance                                  Rs.5,000/-

    Attendant charges and nourishing food       Rs.5,000/-

    Medical expenses                            Rs.1,10,860/-

    Loss of income                              Rs.13,500/-

    Discomfort and loss of amenities of life    Rs.20,000/-

    Future medical expenses                     Rs.60,000/-

                  Total                         Rs.2,54,360/-

9. Heard the arguments of the learned counsel

appearing for the claimant as well as the insurer.

10. Learned counsel for the appellant submits that

the Tribunal has erroneously held that riders of both

motorbikes caused accident and apportioned the

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negligence between riders of the motorcycles. The

respondents have not examined eye witnesses to show

that major negligence was of the claimant. The claimant

came to the other side of the road, since the other part of

the highway was under repair. That was noted in the

impugned judgment. The Investigating Officer in the

charge sheet has clearly stated that accident has taken

place due to negligence of riders of both the motorcycles.

Under such circumstances, the Tribunal ought to have

apportioned the negligence equally instead of putting more

negligence on the claimant. It needs to be reconsidered

by this Court.

11. Learned counsel for the claimant further stated

that claimant had examined the treating doctor as PW-2.

He has clearly stated that claimant had suffered

permanent disability of 25% to the whole body, that was

not considered by the Tribunal without any justifiable

reasons. He further contended that claimant was selling

the plastic articles. The Tribunal did not believe the same.

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At least, it could have taken into consideration of the same

while awarding the compensation. He further stated that

the Tribunal has awarded meagre amount of compensation

on all the heads, except the medical expenses. Thus, he

prayed for enhancement of the compensation.

12. Learned counsel for respondent No.2-insurer

vehemently contended that the entire negligence was on

the part of the claimant. He went to a wrong side of the

road and he was not holding effective and valid driving

licence. Therefore, the question of negligence of the rider

of the other vehicle did not arise. However, the Tribunal

has taken the negligence contributed by the claimant as

70%. Since the insurance company has not filed any

appeal, it does not mean that it cannot challenge the

same, at the most, it can be kept as it is. He further

contended that amount of compensation awarded under

other heads is just and proper and they do not call for any

interference by this Court.

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13. He further contended that the claimant has not

led any reliable evidence to prove that he sustained loss of

future earning capacity due to permanent disability.

PW-2 doctor, in his evidence has not clearly mentioned

regarding functional disability. Hence, the Tribunal has

rightly rejected the claim of the claimant with respect to

loss of future income due to permanent disability. Hence,

prayed to dismiss the appeal with costs.

14. Following questions arises for consideration :

(i) Whether the Tribunal is justified in holding that the contributory negligence on rider of both the vehicles is in the ratio of 70:30 without any justifiable reasons:

(ii) Whether the claimant is entitled for enhancement of compensation?

(ii) What order?

Point No.1 :

15. PW-1 is the claimant. In his evidence, he has

reiterated the facts of the case. In his cross-examination,

it was not brought out that he was solely responsible for

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causing the accident in question. The Investigating Officer

after investigating the matter, filed the charge sheet. The

Investigating Officer has specifically stated in the charge

sheet that accident had taken place due to negligence on

the part of rider of both the motor vehicles. Looking at

the charge sheet and its enclosures, the finding of the

Investigating Officer that both riders are responsible for

the accident in question, is probable. The Tribunal has not

assigned any reasons as to why it has assessed the

negligence of the claimant at 70% when the Investigating

Officer himself says that both riders are equally

responsible for the accident. Therefore, there are no

justifiable reasons for the Tribunal to hold that claimant

had contributed to an extent of 70% in causing the

accident. Hence, the said findings needs interference by

this Court.

16. Claimant has produced the wound certificate at

Ex.P-6 and medical records. They show that the claimant

has sustained following injuries :

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1. Lacerated wound over right side of forehead (8x6x2) cm.

2. Pain and tenderness and deformity of left wrist joint,

3. Swelling and tenderness over right ankles joint and knee joint.

17. Claimant underwent surgery in M.S.Ramaiah

hospital, Bengaluru. PW-2 who has treated the claimant in

his evidence has mentioned the disability to each part of

the body wherein claimant had sustained fractures and

assessed the total disability as 25% to the whole body.

18. The Tribunal has considered the income of the

claimant as Rs.4,500/- per month, however, the Tribunal

has not assessed the loss of future income due to

disability. When the claimant is said to be a businessman

or even if it is believed that he has not proved that he was

a businessman, at least, the Tribunal could have

considered that he was a coolie and earning his livelihood.

In that event, fracture of scapula would definitely affect

his earning capacity. Therefore, the Tribunal has erred in

not considering this fact.

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19. There are no acceptable materials on record to

prove the income of the claimant, therefore, notional

income of the claimant has to be assessed. As per the

chart prepared by the Karnataka State Legal Services

Authority, the notional income of the victim of an accident

of the year 2011, could be taken as Rs.6,500/- per month.

Same could be applied to the facts of the present case.

20. The medical records shows that claimant was

aged about 35 years at the time of the accident and as per

the judgment of the Hon'ble Apex Court in the case of

Sarla Verma -vs- Delhi Transport Corporation and others,

reported in (2009) 6 SCC 121, the suitable multiplier

applicable in the present case is `16'.

21. Considering the age of the claimant, nature of

the injuries sustained by the claimant and his occupation,

permanent disability affecting the earning capacity of the

claimant is to be taken as 15%. On the basis of the same,

loss of future earning capacity of the claimant has to be

calculated. Even the amount of compensation awarded by

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the Tribunal under other heads are on the lower side, and

the same needs to be enhanced.

22. Accordingly, following compensation is awarded:

                 Particulars                 Amount in Rs.

    Pain and agony                             75,000/-

    Conveyance, attendant charges and          25,000/-
    nourishing food

    Medical expenses                         1,10,860/-

    Loss of income during laid up period       19,500/-
    (Rs.6,500/- x 3)

Loss of future earning capacity due to 1,87,200/- disability (Rs.6,500/- x 12 x 16 x 15%)

Loss of amenities of life and future 30,000/- unhappiness

Future medical expenses 60,000/-

                 Total                       5,07,560/-
                                             Rounded off to
                                             5,08,000/-

    Claimant entitled for 50% of same        2,53,780/-

    Less : amount awarded by the Tribunal     76,308/-
    (30% of Rs.2,54,360/-)

                          Enhancement -      1,77,472/-

                           Rounded off -     1,78,000/-
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23. Thus, the claimant is entitled for enhancement

of compensation of Rs.1,78,000/- with interest at 6% p.a.

on the enhanced amount from the date of petition till its

realization.

24. Undisputedly, the respondent No.1 being the

owner and respondent No.2 being the insurer are liable to

pay the said amount.

Accordingly, both point No.1 and 2 are answered

partly in the affirmative.

25. In the result, I proceed to pass the following: