Partly allowed

Subhas @ Subhaschandra S/O Shivappa @ Shivappagoud v. Divisional Controller

Karnataka HC18 Feb 2019MFA.CROB/100056/2014

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the High Court Motor Tribunal's enhancement claim partially. While upholding the Tribunal's contributory negligence apportionment, the Court modified the weekly emoluments used for calculating future loss of earnings, leading to a revised compensation amount.

What did the court decide?

The claimant is entitled to a loss of future earnings of Rs.6,000/- p.m. The award is modified to Rs.1,08,000/- under the head of loss of future earnings with interest.

Subhas @ Subhaschandra S/O Shivappa @ Shivappagoud… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF FEBRUARY 2019

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BEFORE

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THE HON’BLE MR.JUSTICE P.B.BAJANTHRI

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M.F.A. NO.24467/2013 (MV) C/W MFA CROB.100056/2014

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IN MFA NO.24467/2013

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BETWEEN

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DIVISIONAL CONTROLLER,

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NEKRTC, RAICHUR DIVISION, RAICHUR.

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MANAGING DIRECTOR,

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SELF INSURANCE FUND, NEKRTC, GULBARGA.

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APPELLANTS

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(BY SRI.RAVI V.HOSAMANI, ADV.)

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AND

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SUBHAS @ SUBHASCHANDRA S/O SHIVAPPA @ SHIVAPPAGOUD BIRADAR, AGE: 39 YEARS, OCC: DRIVER. R/O GULAGONJIKOPPA, AT DHARWAD.

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RESPONDENT (BY SRI.GANGADHAR S.HOSAKERI & SRI.D.M.ALLI, ADVS.)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V.ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 23.05.2013 PASSED IN MVC NO.49/2012 ON THE FILE OF THE I-ADDL. SENIOR CIVIL JUDGE AND CJM AND MEMBER, ADDL. MACT, DHARWAD, AWARDING THE COMPENSATION OF RS.1,78,080/- WITH INTEREST AT THE RATE OF 8% P.A. ON AMOUNT OF RS.1,58,080/(EXCLUDING FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA CROB.100056/2014

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BETWEEN

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SUBHASH @ SUBHASCHANDRA S/O SHIVAPPA @ SHIVAPPAGOUD BIRADAR, AGE: 40 YEARS, OCC: DRIVER, R/O GULAGONJIKOPPA, DHARWAD.

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CROSS OBJECTOR

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(BY SRI.GANGADHAR S.HOSAKERI, ADV.)

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AND

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DIVISIONAL CONTROLLER,

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NEKRTC, RAICHUR DIVISION, RAICHUR.

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THE MANAGING DIRECTOR,

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SELF INSURANCE FUND, NEKRTC, GULBURGA.

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RESPONDENTS

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(BY SRI.RAVI V.HOSAMANI, ADV.)

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THIS MFA CROB. IN MFA NO.24467/2013 FILED U/O 41 RULE 22 OF CPC AGIANST THE JUDGMENT AND AWARD DATED 23.05.2012 PASSED IN MVC NO.49/2012 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM AND ADDITIONAL MACT, DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal and cross objections are by the NEKRTC

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and claimant against the judgment and award dated

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23.05.2013 passed in MVC No.49/2012 passed by the I

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Additional Senior Civil Judge and CJM and Additional MACT, Dharwad (for short ‘ the MACT’).

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The facts of the case are, on 26.05.2011 at about 5.00 p.m., the claimant was driving the TATA Ace vehicle bearing Reg.No.KA-25/C-4624 on Mantralaya Raichur road near Mitti Malkapur cross coming under Yaragatti Police Station, at that time, the NEKRTC bus bearing Reg.No.KA-36/F-753 coming from opposite direction dashed against the TATA Ace vehicle, resulting in toppled down. Due to the said impact, the claimant fell down and sustained injuries. Hence, the claimant filed claim petition before the MACT seeking compensation. The MACT proceeded to award compensation of Rs.1,78,080/- while fastening contributory negligence to the extent of 20% on the driver of the TATA Ace vehicle and 80% on the NEKRTC.

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The learned counsel for the Corporation vehemently contended that the driver of the TATA Ace was

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not holding valid driving licence as he was holding only learner’s licence. Therefore, fastening contributory negligence to the extent of 20% on the driver of the TATA Ace and 80% on the Corporation is arbitrary. Hence, fastening liability by the MACT to the extent of 80% is liable to be set aside. He further contended that, claimant is not entitled for future prospects. Therefore, on the quantum also, the MACT award is liable to be set aside.

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The cross objection filed by the claimant seeking enhancement of compensation on the score that, income taken by the MACT is too meager with reference to the date of the accident as against Rs.7,000/- p.m. claimed by him. It was further contended that the doctor has opined 40% disability whereas the MACT has taken 10% disability.

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Per contra, learned counsel for the Corporation submitted that, claimant has not produced documentary evidence with reference to income criteria. Therefore,

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there is no infirmity in the order of the MACT. Similarly, in respect of percentage of disability, he has not appraised this Court with material ingredients in respect of percentage of disability.

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Heard the learned counsel for the parties.

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Question for consideration in the appeal and the

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cross objection is fastening contributory negligence by the MACT is in order or not and claimant is entitled to enhanced compensation or not?

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Fastening liability under the head of

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contributory negligence, no doubt the MACT has not assigned any reasons relating to contributory negligence of 20% on the driver of the TATA Ace and 80% on the corporation. Even though the claimant did not have valid driving licence to drive the TATA Ace vehicle and he had learners licence and one must accompany with him with valid driving licence. To that extent, there is negligence. Therefore, one has to draw inference that there is a

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negligence on the part of the driver in driving the TATA Ace vehicle on his own, when the instructions are that, learners licence holder to drive a vehicle with the person who had valid driving licence.

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Insofar as fastening liability on the corporation at 80% is arbitrary as pointed out by the learned counsel for the corporation, he has not appraised this Court with necessary material to show the negligence on the part of the TATA Ace driver so as to skip contributory negligence on behalf of the corporation.

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Perusal of the MACT award, it is evident that, no documents or witnesses have been examined in support of their case. Therefore, the corporation lost its opportunity of arguing the matter that there is no contributory negligence on the part of the corporation. Hence, no interference is called for in respect of contributory negligence.

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For the purpose of enhancement of

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compensation to the driver of the TATA Ace vehicle, even though the MACT has taken Rs.4,500/- p.m., it is meager income with reference to his profession as driver. One has to take note of the fact that, he did not have valid driving licence in the sense, he had only learner’s licence. Therefore, he cannot claim income at the rate of Rs.7,000/- p.m. Even though no income proof has been produced, the Courts are taking the income with reference to Lok Adalath guidelines. In the present case for the accident year, i.e., 2011, the minimum income is Rs.6,000/-. Therefore, the income taken by the MACT is modified and Rs.6,000/- is taken instead of Rs.5,200/p.m.

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Claimant counsel submitted that MACT has not

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appreciated percentage of disability. In this regard, claimant has not furnished or pointed out any injury which

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has got serious repercussion so as to enhance percentage of disability.

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Accordingly, the loss of income on account of disability is calculated at Rs.1,08,000/- (Rs.6,000/- x 12 x 15 x 10/100). Accordingly, the appeal filed by the Corporation is dismissed and the cross objection filed by the claimant is allowed in part. The judgment and award dated 23.05.2013 passed by the I Additional Senior Civil Judge and CJM and Additional MACT, Dharwad is hereby modified and the claimant is entitled to Rs.1,08,000/instead of Rs.93,600/- under the head ‘loss of future earnings with interest at the rate of 8% p.a. from the date of petition till the date of deposit. The rest of the award passed by the MACT is unaltered.

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The amount in deposit, if any, shall be transmitted to the MACT for the purpose of disbursement in accordance with law.

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Sd/JUDGE

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MBS/-

Subhas @ Subhaschandra S/O Shivappa @ Shivappagoud v. Divisional Controller

Case brief

What is this about?

What did the court decide?

Subhas @ Subhaschandra S/O Shivappa @ Shivappagoud v. Divisional Controller

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

Coram

Case details

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