Karnataka High Court
The Branch Manager, Shriram vs Mohd.Jakeer And Ors on 18 March, 2025
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NC: 2025:KHC-K:1682
MFA No. 201253 of 2018
C/W MFA No. 201080 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.201253 OF 2018 (MV-I)
C/W
MISCL. FIRST APPEAL NO.201080 OF 2018 (MV-I)
IN MFA NO.201253/2018:
BETWEEN:
THE BRANCH MANAGER,
SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP, RIICO, INDUSTRIAL AREA,
SITAPUR, JAIPUR RAJASTHAN,
THROUGH IT'S BRANCH MANAGER,
(THROUGH AUTHORISED SIGNATORY).
...APPELLANT
Digitally signed
by SHIVALEELA (BY SRI. SUBHASH MALLAPUR, ADVOCATE)
DATTATRAYA
UDAGI
Location: HIGH AND:
COURT OF
KARNATAKA
1. MOHD. JAKEER
S/O MOHD. AFSAR MIYA,
AGE: 35 YEARS, OCC: DRIVER,
R/O H.NO.12-6-400,
NEAR WATER TANK,
LBS NAGAR, RAICHUR-584 101.
2. IMAAM SAB @ IMAAM HUSSAIN
S/O PEERSAB,
AGE: 53 YEARS, OCC: DRIVER,
R/O M.D. COUNCILLOR AREA,
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MFA No. 201253 of 2018
C/W MFA No. 201080 of 2018
LBS NAGAR, RAICHUR-584 101.
3. RAHEEM PASHA S/O JANGLI SAB,
AGE: 48 YEARS OCC: OWNER OF LORRY
NO. KA-22/A-5596, R/O H.NO.1-11-50/84,
NEAR LION CLUB SCHOOL,
VIVEKANANDA COLONY,
RAICHUR-584 101.
...RESPONDENTS
(BY SRI. BABU H. METAGUDDA, ADV. FOR R1;
R2-SERVED;
V/O DTD. 07.01.2025, NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE
APPEAL AND CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD DATED 03.04.2018 PASSED THE II
ADDL. DIST. AND SESSIONS JUDGE AND ADDL. MACT
RAICHUR, IN MVC NO.308/15.
IN MFA NO.201080/2018:
BETWEEN:
MOHAMMED JAKEER S/O MOHAMMED AFSAR MIYA,
AGE: 35 YEARS, OCC: DRIVER,
R/O HOUSE NO. 12-6-400, NEAR WATER TANK,
LBS NAGAR, RAICHUR-585 401.
...APPELLANT
(BY SRI. BABU H. METAGUDDA, ADVOCATE)
AND:
1. IMMAM SAB @ IMAM HUSSAIN
S/O PEER SAB,
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NC: 2025:KHC-K:1682
MFA No. 201253 of 2018
C/W MFA No. 201080 of 2018
AGE: 53 YEARS, OCC: DRIVER,
R/O M.D. COUNCILLER AREA,
LBS NAGAR, RAICHUR-585 401.
2. RAHEEM PASHA S/O JANGLI SAB,
AGE: 48 YEARS, OCC: OWNER OF LORRY
NO. KA-22/A-5596, R/O H.NO.1-11-50/84,
NEAR LION CLUB SCHOOL,
VIVEKANADA COLONY,
RAICHUR-585 401.
3. THE BRANCH MANAGER,
SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, RIICO INDUSTRIAL AREA, SITAPUR,
JAIPUR, (RAJASTHAN STATE).
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADV. FOR R3;
V/O DTD. 22.08.2022, NOTICE TO R1 AND R2 ARE DISPENSED
WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
MODIFY THE JUDGMENT AND AWARD DATED 03.04.2018
PASSED IN MVC NO.308/2015 BY THE II ADDL. DIST. AND
SESSIONS JUDGE AND ADDL. MACT AT RAICHUR AND
ENHANCING THE COMPENSATION FROM RS.2,07,100/- WITH
6% INTEREST TO RS.3,00,000/- WITH 12% INTEREST.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
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MFA No. 201253 of 2018
C/W MFA No. 201080 of 2018
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Though these matters are slated for Admission, by
consent, they are taken up for Final Hearing and heard the
learned counsel for appellant in both the appeals.
2. Being aggrieved by the judgment and award in MVC
No.308/2015 dated 03-04-2018 passed by the learned II
Additional District and Sessions Judge, Raichur, the petitioner
is in appeal before this Court in MFA No. 201080/2018 and the
respondent No.3/Insurance Company is in appeal before this
Court in MFA No.201253/2018.
3. For the sake of convenience, the parties would be
referred to as per their rankings before the Tribunal.
4. The factual matrix of the case which are relevant for
the purpose of these appeals are as below:
On 17.10.2014 at about 3.40 PM near Autonagar Cross,
Goshala Road, Raichur, respondent No.1 drove his Lorry
bearing No.KA.22/A.5596 in a rash and negligent manner and
was going towards Gunj Circle. He did not even blew the horn
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but dashed against the motorcycle bearing No.KA.36/Q.4236
and the petitioner being the rider sustained injuries in the
accident. He was shifted to M.K. Bhandari Hospital, Raichur and
was treated till 24.10.2014. Contending that the petitioner was
working as a driver and earning Rs.10,000/- per month has
filed the claim petition. Respondent No.1 is the driver,
respondent No.2 is the owner and respondent No.3 is the
insurer of the lorry.
5. On issuance of notice, respondent Nos. 1 and 2 did
not appear and as such, they were placed exparte. Respondent
No.3-Insurance Company appeared and filed the written
statement contending that the compensation claimed by the
petitioner is highly exorbitant and imaginary. It disputed the
fact that there was any negligence on the part of the driver of
the lorry. But alleges that it was due to the negligence of the
petitioner who failed to take precaution and dashed to the rear
wheel of the lorry. It was contended that there is contributory
negligence on the part of the petitioner and charge sheet was
also filed against both the offenders. It was contended that the
petitioner was not having a valid driving licence and therefore,
on this ground also, the negligence on the part of the
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petitioner is on the higher side and as such, the Insurance
Company be absolved from paying any compensation to the
petitioner.
6. On the basis of the above contentions, appropriate
issues were framed by the Tribunal and the petitioner was
examined as PW1, one witness was examined as PW2 and
Exhibits P1 to 11 were marked in evidence. The Officer of the
Insurance Company and the official of the RTO were examined
as RWs.1 and 2 and Exhibits R1 to R6 were marked in
evidence.
7. After hearing both sides, the Tribunal held that the
petitioner had contributed negligence to the extent of 25% and
calculated the compensation under different heads as below;
Transportation Rs. 5,000/-
Food, attendant and nourishment Rs. 10,000/-
charges
Medical expenses Rs. 44,781/-
Pain and suffering Rs. 50,000/-
Loss of future earnings Rs.1,61,280/-
Loss of amenities Rs. 5,000/-
Total Rs.2,76,061/-
8. Being aggrieved by the same, the petitioner as well
as the respondent No.3- Insurance Company are before this
Court in these appeals.
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9. Learned counsel appearing for the petitioner would
submit that PW-2 had stated that the petitioner had sustained
fracture of both the bones of the right leg and opines that there
is a disability of 40% and therefore, the disability assessed by
the Tribunal at 14% is on the lower side. He submits that the
income of the petitioner is also taken on the lower side and the
compensation needs to be reassessed by this Court. He submits
that he is not challenging the contributory negligence of 25%
attributed to the petitioner in the said accident.
10. Per Contra, the learned counsel appearing for the
respondent No.3-Insurance Company would submit that the
petitioner was not having a valid driving licence to drive the
two wheeler and in fact, he should have taken precaution and
since he was in speed, he could not control the two Wheeler
and as such, dashed to the rear wheel of the lorry. It is
submitted that the lorry was entering the Main Road from the
Cross Road and it had almost crossed the lane in which the
petitioner was coming and there was a clear negligence on the
part of the petitioner. Therefore, the learned counsel for the
Insurance Company would submit that the contributory
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negligence by the petitioner should have been held atleast at
50%.
11. A perusal of the spot sketch, Ex.P4 would show that
Lorry was entering the four lane Main Road with divider. The
lorry driver had to take a right turn in the said 'T' intersection.
Thus, it is evident that the lorry driver who was entering the
four lane Main Road with a divider should have waited at the
junction and observe both the sides as to whether any other
vehicles were moving on the road and then, he should have
entered the other lane on the Main Road. It is evident that the
two wheeler was coming from the right side of the lorry and
obviously, the two wheeler was being driven on the Main Road.
Naturally, the vehicles which are plying on the Main Road are
bound to be in speed and therefore, any vehicle, which is
entering the Main Road from cross Road has to take precaution.
Moreover, the Regulations under the Motor Vehicles Act,
require that a driver has to give priority to the vehicles which
are coming from his right. Without seeing as to whether any
vehicle is coming from his right side, no driver is required to
enter the junction. So far as the petitioner is concerned,
obviously, the lorry was coming from his left side. The
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Regulations do not require that the drivers who are entering
the junction should observe the vehicles coming from the right
side. Therefore, there is absolutely no justification in the
argument of the learned counsel for the Insurance Company in
seeking greater contributory negligence on the part of the
petitioner. In the result, the appeal filed by the Insurance
Company deserves to be dismissed. No interference is required
in the finding of the Tribunal that petitioner contributed 25% of
the negligence.
12. Coming to the quantum of the compensation
amount, the PW2 has stated that there was a fracture of both
the bones of the right leg and the Wound Certificate at Ex.P6
would show that except the fracture, the other injuries were
simple in nature. The testimony of PW2 would indicate that he
is the treated Doctor of the petitioner and he opines that there
are restrictions of the movement and as such, he opines the
disability of the petitioner at 40%.
13. It is worth to note that the testimony of PW2 and
the Disability Certificate at Ex. P9 do not mention the disability
of the limb, but it only mentions the whole body disability. On
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examination of the testimony of PW2 and the Disability
Certificate, this Court is of the opinion that the functional
disability of the petitioner has to be assessed at 15%.
14. It is worth to note that though the petitioner had
stated that he was working as a Driver in the petition, he has
not produced the driving licence. But admitted that he was not
a driver. Therefore, the functional disability as a driver cannot
be considered by this Court. In the result, the functional
disability of the petitioner is considered at 15%.
15. The Tribunal, in the absence of any material to
show the income of the petitioner has adopted the notional
income. The guidelines issued by the Karnataka State Legal
Services Authority in respect of the settlement of disputes
before the Lok Adalat prescribe that the notional income for the
year 2014 is Rs.7,500/- per month. This Court in umpteen
number of cases has held that the said guidelines issued by the
KSLSA for settlement of disputes in Lok adalat is in conformity
with the minimum wages fixed under the Minimum Wages Act.
Therefore, the notional income of the deceased has to be
considered at Rs.7,500/- per month. Therefore, the loss of
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future income due to disability is calculated as: 7,500/- x 12
x16 x 15%= 2,16,000/-. Consequently, the petitioner is also
entitled for compensation of Rs.22,500/- towards loss of
income during laid up period. The Tribunal has awarded a sum
of Rs.5,000/- under the head of loss of amenities in life. The
same needs to be enhanced to Rs.30,000/-. The testimony of
PW2 would show that implants are inserted and therefore, a
sum of Rs.20,000/- is awarded to the petitioner towards future
medical expenses. The compensation awarded under the other
heads do not require any modification. Therefore, the petitioner
is entitled to a total compensation of Rs.3,98,281/- under the
following heads:
Transportation Rs. 5,000/-
Food, attendant and nourishment Rs. 10,000/-
charges
Medical expenses Rs. 44,781/-
Pain and suffering Rs. 50,000/-
Loss of future earnings Rs.2,16,000/-
Loss of amenities Rs. 30,000/-
Towards loss of income during laid up Rs. 22,500/-
period
Future medical expenses Rs. 20,000/-
Total Rs.3,98,281/-
16. Out of the above, 75% of Rs.3,98,281/- comes to
Rs.2,98,710/-. Thus, the petitioner is entitled to a sum of
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Rs.2,98,710/- instead of 75% of Rs.2,76,061/- awarded by the
Tribunal. Hence, the following:
ORDER
(i) The appeal filed by the Insurance Company is
dismissed.
(ii) The appeal filed by the petitioner is allowed in part.
(iii) The impugned judgment and award passed by the
Tribunal is modified.
(iv) The petitioner is entitled to a total compensation of
Rs.2,98,710/- together with interest at 6% p.a. from the
date of petition till realization.
(v) Respondent No.3/Insurance Company is directed to
deposit the compensation amount within six weeks from
the date of receipt of the copy of this order.
(vi) The amount in deposit, if any, to be transmitted to
the concerned Tribunal forthwith.
Sd/-
(C M JOSHI)
JUDGE
tsn*
CT: AK
