Partly allowed

Sri. Gundu Mango Chougale, v. Sri. Vinayak B. Kulkarni

Karnataka HC18 Aug 2020MFA/20547/2011

Case brief

AI extract

What is this about?

This was an appeal against the quantum of compensation and attribution of contributory negligence in a motor accident case. The High Court set aside the deduction for contributory negligence under Section 163-A and awarded an additional Rs. 1,000 for non-grievous injuries.

What did the court decide?

Contribution deduction set aside; Rs. 1,000 awarded for non-grievous injuries; total compensation fixed at Rs. 81,000.

Sri. Gundu Mango Chougale, Vs Sri. Vinayak B. Kulkarni — Medical Negligence | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^{T H} DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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M.F.A.NO.20547/2011 (MV)

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BETWEEN :

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SRI GUNDU MANGO CHOUGALE, AGE 47 YEARS, OCC: MASON, NOW NIL, R/O BASTAWAD VILLAGE, TALUK DIST: BELGAUM.

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... APPELLANT

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(BY SRI HARISH S.MAIGUR, ADVOCATE)

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AND :

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SRI VINAYAK B.KULKARNI, AGE MAJOR, OCC: BUSINESS, R/O 189, SUKRAWARPETH, TILAKWADI, BELGAUM.

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TATA AIG GENERAL INSURANCE CO. LTD., POB NO.9407, CHAKALA MIDC POST OFFICE, MUMBAI-400093.

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... RESPONDENTS

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(BY SRI SUBHASH J.BADDI, ADVOCATE FOR R.2) (NOTICE TO RESPONDENT NO.2 : SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAISNT THE JUDGMENT AND AWARD PASSED DATED 01.12.2010 PASSED BY THE FAST TRACK COURT-I & MEMBER, ADDITIONAL M.A.C.T. BELGAUM AT BELGAUM IN MVC.NO.100/2009.

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

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JUDGMENT

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This appeal, though listed for admission, is

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taken up for final disposal with the consent of the learned counsel appearing for the parties.

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimant being aggrieved by the judgment and award dated 01.12.2010 passed by the Fast Track Court-I & the Member, Motor Accident Claims Tribunal, Belgaum (hereinafter referred to as the Tribunal for short), in M.V.C. No.100/2009.

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Parties will be referred to as per their ranking before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that on 07.02.2008 at about 8.15 p.m., the claimant was proceeding on his motor vehicle bearing registration

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No.KA.22/R.8308 towards Bastawad village and when he came near Khimajibhai Petrol Bunk another motorcycle bearing registration No.KA.22/Y-8195 came from opposite direction in a rash and negligent manner and dashed against the motorcycle of the clamant. Due to the impact of the accident, the claimant suffered grievous injuries.

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The claimants filed a claim petition under Section 163-A of the Act before the Tribunal in MVC.No.100/2009 on the ground that he became disabled due to the impact of the accident and had to spend huge sums of money for the treatment and claimed compensation of Rs.7,00,000/- along with interest.

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On issuance of notice, the 1^st respondent appeared and filed his objections denying the petition averments, the age and the manner in which the accident took place were all denied. The 2^nd respondent-Insurance Company filed its

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statement of objections contending that the claimant himself was responsible for causing the accident and he was guilty of contributory negligence for the cause of accident.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.

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The claimant, in order to prove his case, examined himself as PWs.1 and two doctors as PW.2 and PW.3 and got exhibited 13 documents namely Exs.P1 to Ex.P.13. On the other hand, respondent-Insurance Company neither examined any witness nor marked any documents on its behalf.

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The Claims Tribunal, by the impugned judgment, inter alia, held that the claimant is entitled to a compensation of Rs.80,000/- and 25% of contributory negligence was attributed to the claimant as he did not have driving licence on

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the date of accident and by reducing 25% of the amount, it was ordered that the claimant was entitled to Rs.60,000/- as compensation for the injuries sustained by him in the accident.

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The claimant has preferred the instant appeal challenging the quantum of compensation awarded by the Tribunal to be on the lower side even in the claim under Section 163-A of the Motor Vehicles Act, 1988 and the deduction of 25% of the compensation on contributory negligence.

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Learned counsel for the appellant would contend that the compensation amount that the Tribunal determines as loss of future income will have to be enhanced as the Tribunal takes monthly income of the claimant at Rs.3,000/- as against Rs.3,200/- notionally fixed in terms of the Guidelines/Chart prepared by the Karnataka High Court Legal Services Committee in the cases where there is no proof of income produced

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before the Tribunal. The compensation awarded by the Tribunal on other heads is contrary to law.

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On the other hand, learned counsel for the respondent-Insurance Company would contend that the compensation awarded under Section 163-A of the Act is already on the higher side and does not require any enhancement.

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Since it is proceeding under Section 163-A of the Act, the claimant is not required to prove negligence on a bare reading of SubSection 2 of Section 163-A of the Act. Hence, the order of the Tribunal deducting 25% of the amount of compensation determined towards contributory negligence on the part of the claimant is contrary to the aforementioned provision of law. Hence, 25% contributory negligence that is determined by the Tribunal and consequent deduction of Rs.20,000/- towards that contributory negligence is set aside.

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The Tribunal has not awarded any

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compensation for sustaining non grievous injuries

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in the case on hand, which is contrary to the schedule appended to Section 163-A. Hence, I deem it appropriate to award compensation at Rs.1,000/towards non grievous injuries sustained by the claimant. Hence, the following:

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: ORDER :

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a) The appeal is allowed in part.

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b) The order directing deduction of 25% of the total compensation on account of contributory negligence is set aside.

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c) The compensation of Rs.1,000/- is added towards non grievous injuries. Hence, the claimant is entitled to a compensation of Rs.81,000/- to be paid in full by the respondentInsurance Company to the claimant.

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Sd/JUDGE

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EM/-

Sri. Gundu Mango Chougale, v. Sri. Vinayak B. Kulkarni

Case brief

What is this about?

What did the court decide?

Sri. Gundu Mango Chougale, v. Sri. Vinayak B. Kulkarni

Case brief

What is this about?

What did the court decide?

What the court decided

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