Allowed

Ratnabai W/O.Karaveer Magsdum v. Vithal Adiveppa Parasannavar

Karnataka HC6 Oct 2017MFA/23807/2010

Case brief

AI extract

What is this about?

The High Court allowed this appeal in part, enhancing compensation awarded by the Motor Accident Claims Tribunal for bodily injuries, disability, and future earnings. The court also adjusted the apportionment of contributory negligence from 50% to 40% in favor of the claimant.

What did the court decide?

The appeal allowed in part; the impugned award modified to enhance total compensation to Rs. 60,360 payable by the respondent insurer.

Ratnabai W/O.Karaveer Magsdum Vs Vithal… — Contract and Commercial Disputes | Karnataka HC (2017)

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M.F.A.No.23807/2010

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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MFA No.23807/2010(MV)

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BETWEEN:

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SMT.RATNABAI W/O KARAVEER MAGADUM, AGED ABOUT 33 YEARS, , R/O KITTUR, NOW STAYING AT HATTARKI, HUKKERI TALUK, BELGAUM DISTRICT.

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... APPELLANT

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(BY SRI.Y.LAKSHMIKANT REDDY, ADV.)

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AND:

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SRI.VITHAL ADIVEPPA PARASANNAVAR,

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AGED MAJOR, OWNER OF TRAX NO.

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KA-29/K-0833, R/O KARIBADI,

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KAVALI, BAILHONGAL, BELGAUM DISTRICT.

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THE DIVISIONAL MANAGER, M/S NEW INDIA ASSURANCE CO.LTD.,

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CLUB ROAD, BELGAUM.

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... RESPONDENTS

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(BY SRI.LAXMAN B.MANNODDAR, ADV. FOR R2,

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R1 NOTICE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 01.02.2010, PASSED IN 485/2007, ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN.) & MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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M.F.A.No.23807/2010

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant herein was the claimant before the I Additional Civil Judge (Sr.Dn.) and Motor Accident Claims Tribunal, Belgaum (henceforth referred to as the ‘Tribunal’ for brevity) in MVC No.485/2007, whose claim petition under Section 166 of the Motor Vehicles Act, 1988 was allowed in part by the impugned judgment and award dated 01.02.2010. Seeking enhancement of the compensation awarded by the Tribunal, the appellant has preferred this appeal.

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In his memorandum of appeal, the appellant has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.

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M.F.A.No.23807/2010

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Heard the arguments from both sides and

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perused the materials placed before this Court.

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Learned counsel for the appellant in his argument

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reiterated the contention taken up by the appellant in his memorandum of appeal.

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This is claimant’s appeal seeking enhancement of the compensation as well as questioning the

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apportionment of the alleged negligence to the extent of 50% on the part of the claimant also. However, the respondents have not disputed the date, time and place of occurrence of the accident and also their limited liability to pay compensation towards the alleged injuries sustained by the claimant.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:

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M.F.A.No.23807/2010

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	Amount(`)
Painand suffering	15,000
Medicalexpenses	2,000
Conveyance, attendant charges,	2,000
nutrition and other incidentalcharges
Loss ofearning during treatment	6,000
Loss of future earning due to disability	40,320
Total	65,320

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According to the claimant as P.W.1, in the accident, she has sustained fracture of lower end of radius right hand, grievous injury to right leg, forehead and left hand. The wound certificate at Ex.P5 mentions about two simple injuries and two grievous injuries in the form of abrasion and suspected fracture. However, the said document is incomplete with regard to the revelation made in x-ray report, but the evidence of P.W.1 fills the said gap that the said suspected fracture in reality was a fracture of lower end of radius right hand. The said wound certificate and the evidence of P.W.1 regarding the nature of injuries sustained in the accident has not been specifically denied in the cross-examination of the claimant. As such, it goes

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M.F.A.No.23807/2010

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to establish that, in the accident apart from two simple injuries, the claimant also sustained a grievous injury in the nature of fracture of lower end of radius right hand. Considering the nature of injuries and the organ of the body to which the injury has been caused, I am of the view that the compensation awarded under the head of ‘pain and suffering’ requires an enhancement by a sum of `15,000/- to bring it to a reasonable compensation.

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No doubt, the claimant has not produced any medical bills or receipts to show the medical expenses incurred by her. However, considering the nature of injury, which was a fracture to an important upper limb of a body, I am of the view that she must have incurred medical expenses not less than 5,000/-. As such, the compensation awarded under the said head deserves an enhancement by a sum of 3,000/-.

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Since the compensation awarded towards

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conveyance, attendant charges, nutrition and other

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M.F.A.No.23807/2010

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incidental charges being reasonable, I do not want to modify the said figure.

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The claimant has stated that, prior to the

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accident she was earning `3,000/- p.m. by doing agricultural work and that due to the accident, she could not able to do her work. She has also got examined one Dr.A.B.Patil, who has stated that, he has examined the injured towards her alleged disability and opined that the injured had got permanent physical disability to an extent of 30% to right upper limb. The Tribunal has calculated the said percentage of disability at 7%, as applicable to the whole body. However, considering the facts of the case and

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the evidence, I am of the view that the percentage of disability which was 30% to right upper limb, if applied to the whole body in the instant case, comes to 10%. If that were to be the case, towards ‘loss of future earning’, the claimant is entitled to the compensation of a sum of 57,600/- (3,000/- x 12 x 16 x 10/100). After deducting

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a sum of `40,320/- awarded by the Tribunal, the claimant

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is entitled to an enhanced compensation of a sum of

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`17,280/-.

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Barring the above, the claimant/appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads.

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Thus, in total the claimant/appellant is entitled for a total enhancement of a sum of `35,280/(Rupees Thirty Five Thousand Two Hundred and Eighty Only), which is in addition to the compensation awarded by the Tribunal.

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The Tribunal has made an observation that

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there is contributory negligence to an extent of 50% on the part of the claimant, who was a pedestrian at the time of the accident and contributed to the accident. The learned

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counsel for the appellant in his argument vehemently submitted that, admittedly the claimant was pedestrian, as such, a motorist was expected to exhibit more care and

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M.F.A.No.23807/2010

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caution while driving his vehicle. In such an event, the contributory negligence cannot be apportioned at 50% upon the claimant. On the other hand, the learned counsel for the respondent-Insurance Company in his argument submitted that the claimant in her crossexamination has categorically admitted that she was crossing the road without observing the movement of the vehicles on the road. As such, the Tribunal was justified in apportioning the liability in equal proportion between the claimant and the vehicle.

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14. A perusal of the cross-examination of P.W.1 go

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to show that, in her cross-examination, she has stated as

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below:

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“C¥ÀWÁvÀªÀ£ÀÄß vÀqÉAiÀÄ®Ä ZÁ®PÀ vÀ¦à¸À®Ä ¸ÁPÀµÀÄÖ ¥ÀÛAiÀÄwß¹zÁÝ£É. £Á£ÀÄ gÀ¸ÉÛAiÀÄ MAzÀÄ §¢¬ÄAzÀ E£ÉÆßAzÀÄ §¢UÉ zÁlÄwÛzÉÝ J£ÀÄßªÀÅzÀÄ ¸Àj. gÀ¸ÉÛAiÀÄ£ÀÄß zÁlÄªÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ gÀ¸ÉÛAiÀÄ°è ªÁºÀ£ÀªÀ£ÀÄß UÀªÀÄ¤¹®è J£ÀÄßªÀÅzÀÄ ¸Àj. C¥ÀWÁvÀªÀÅ £ÀªÀÄä vÀ¦à¤AzÀ DVzÉ J£ÀÄßªÀÅzÀÄ ¸Àj.”

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M.F.A.No.23807/2010

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The above said clear admission on the part of

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the claimant/injured herself in her evidence go to show that there is contribution from her side also in the occurrence of the accident. At the same time, it also cannot be ignored of the fact that the alleged offending vehicle was Tempo Trax, a light passenger vehicle, as such, the driver of the said vehicle was expected to be more cautious and careful while driving his vehicle on a public road. The suggestion made to P.W.1 in her crossexamination to the effect that, after the accident, the offending motor vehicle turning turtle itself go to show that the offending vehicle was also in a very high speed, otherwise the vehicle would not have turned turtle by the normal application of the brake. Thus, it is evident that there is contribution from both side in the instant case. However, the percentage of contribution attributed at 50% upon the claimant is on the higher side. In the circumstances of the case, as observed above, the offending vehicle since appears to be in a very high speed,

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M.F.A.No.23807/2010

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which could not able to control and turned turtle, it is just

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and reasonable to apportion the said contribution of negligence on the part of the claimant as to the vehicle at the rate of 40:60. It is in this regard also the finding of the

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Tribunal deserves to be varied.

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Thus, in total the claimant is entitled for compensation of a sum of 1,00,600/-, the 60% of which is 60,360/-, which amount the respondent-Insurance Company is liable to pay to the claimant.

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17. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The judgment and award passed by the I Additional Civil Judge (Sr.Dn.) and Motor Accident Claims Tribunal, Belgaum, in MVC No.485/2007 dated 01.02.2010 is modified to the extent that the compensation awarded at 32,660/- is enhanced to a sum of 60,360/-.

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M.F.A.No.23807/2010

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The rest of the order of the Tribunal with respect to fixing the liability upon the respondent and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded and awarding Advocate’s fee, shall remain unaltered.

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Draw modified award accordingly.

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Sd/-

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JUDGE

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MBS/-

Ratnabai W/O.Karaveer Magsdum v. Vithal Adiveppa Parasannavar

Case brief

What is this about?

What did the court decide?

Ratnabai W/O.Karaveer Magsdum v. Vithal Adiveppa Parasannavar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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