Partly allowed

Kum Lakshmi v. Sri Raju C a

Karnataka HC11 Dec 2020MFA/2854/2013

Case brief

AI extract

What is this about?

The High Court allowed the first appeal filed by a minor claimant against a Motor Accident Claims Tribunal award. The Court enhanced the compensation from Rs. 2,10,000 to Rs. 1,87,500 while maintaining the 50% reduction for contributory negligence, citing the Master Mallikarjun judgment.

What did the court decide?

Compensation enhanced to Rs. 1,87,500 with interest at 6% per annum from the date of claim petition till realization.

Kum Lakshmi Vs Sri Raju C a — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MISCELLANEOUS FIRST APPEAL NO.2854 OF 2013 (MV)

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BETWEEN:

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KUM. LAKSHMI D/O LATE PARASHURAM AGED ABOUT 18 YEARS R/AT NO.14, MALAGALA BANGALORE NORTH TALUK BANGALORE-560091.

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... APPELLANT

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[BY SRI.RAMACHANDRA.R.NAIK, ADVOCATE (THROUGH VC)]

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AND:

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SRI.RAJU. C.A S/O LATE ARI AYANNNA R/AT NO.14, 15^TH CROSS PIPELINE, CHOLURPALYA BANGALORE-560023.

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THE NEW INDIA ASSURANCE CO. LTD. CDU VI RESIDENCE ROAD CROSS NO.45/7, GROUND FLOOR, VINAYAK BANGALORE-560001. REP BY ITS DIV. MANAGER

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… RESPONDENTS

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[BY SRI. B.C.SEETHARAMA RAO,

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ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH (THROUGH VC)]

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 08.01.2013 PASSED IN MVC. NO.8926/2010 ON THE FILE OF THE CHIEF JUDGE, MEMBER, PRINCIPAL MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING EHHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this appeal is listed for admission, since the records of the trial Court are received, the appeal is taken up for final disposal with the consent of learned counsel for the parties

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This is an appeal filed by the claimant seeking enhancement of the compensation awarded by the Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes, Bangalore (henceforth referred to as the ‘Tribunal) in MVC No. 8296/2010..

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For the sake of brevity and convenience, the

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parties shall henceforth be referred to as they were arrayed before the Tribunal.

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The claim petition discloses that on

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03.09.2010, the claimant and her relatives had gone to Attilakkamma temple at Savandurga in a Maruthi van bearing registration No. MGJ-21. On 04.09.2010, they were returning to their home in the early morning. When they reached Gangappanhalli cross, at 5:00 a.m, the driver of the Maruthi Van noticed a lorry bearing registration No. KA-02/AB-7299 (henceforth referred as offending vehicle) which was parked in the centre of the road without any indication and without switching on the hazard lights and he tried to avoid the lorry but the hind portion of the lorry came in contact with the Maruti van. As a result, the claimant and other passengers in the Maruti van suffered injuries and were shifted to Ashraya Medinova Pvt. Ltd., where they were administered first

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aid and then the claimant was shifted to Sumathi

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Hospital, where she was treated as an in patient. The claimant contended that her parents had spent a sum of Rs. 50,000/- towards her treatment, for food, conveyance and nourishment charges. Hence a claim petition under Section 166 of Motor Vehicles Act was filed claiming compensation of a sum of Rs. 3,50,000/- from the owner and insurer of the offending vehicle.

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The owner of the offending vehicle did not contest the petition. The insurer of the offending vehicle contested the claim petition by denying the averments of the claim petition. It contended that the driver of the offending vehicle was not responsible for the accident and that the accident occurred due to the rash and negligent driving of the Maruti van by its driver. It also contended that the driver of the Maruti van had lost control over his vehicle and dashed against the lorry which was parked by the side of the road and therefore contended that the

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driver of the Maruti van had contributed negligence to an extent of 50%. It is therefore contended that the owner and insurer of the Maruti van ought to have been arrayed as parties in the claim petition.

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Based on these contentions, the parties went for trial before the Tribunal. The claimant’s father was examined as PW-1 and the Doctor who treated the claimant was examined as PW-2 and documents as marked as Ex.P1 to P13. The insurer did not adduce any evidence and did not mark any documents.

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7. The Tribunal answered Issue No.1 and held

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that the accident was due to the negligence on the part of the driver of the offending vehicle as well as the driver of the Maruti van and therefore it held that the owner and the insurer of both the vehicles were liable to pay the compensation. In so far as the quantum of compensation is concerned, the Tribunal noticed that the claimant was a 16 years old girl and that she had suffered fracture of

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tibia and fibula and also cut injuries and that she was admitted in Sumathi hospital on 06.09.2010 and discharged on 15.09.2010. The Tribunal also noticed the evidence of PW-2 that the claimant was treated conservatively with POP application. Having regard to the nature of the injuries sustained by the claimant and having regard to the evidence of PW-2, the Tribunal held that the claimant had suffered whole body disability of 17%. The Tribunal considered the notional income of the claimant at a sum of Rs. 3,000/- per month and awarded the following compensation:-

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Heads under which compensation awarded	Amount in Rupees
1. Injury, pain and suffering	50,000-00
2. Medical expenses	37,777-00
3. Attendant charges	9,000-00
4. Conveyance charges	2,000-00
5. Loss of earning capacity/future inconvenience/loss of amenities in life	1,10,160-00
Total	2,08,937-00
Rounded off to	2,10,000-00

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In so far as the liability to pay the

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compensation is concerned, the Tribunal noticed that in view of its finding that both the vehicles had contributed to the cause of accident, the Tribunal directed the owner and insurer of the offending vehicle to pay 50% of the compensation amounting to Rs. 1,05,000/- along with interest @ 6% per annum from the date of claim petition till the date of realization.

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Feeling aggrieved by the aforesaid Judgment

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and Award holding that the driver of the Maruti Van was responsible by 50% for the causation of the accident and consequently for enhancement of the compensation awarded by the Tribunal, the claimant has filed this appeal.

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Learned counsel for the insurer brought to the

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notice of the Court that in respect of a claim by the dependants of a person who died in the same accident in MVC No. 6234/2010, the Tribunal held that the driver of

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the Maruti van was responsible for the accident and therefore had deducted 50% of the compensation towards the contributory negligence. The claimant there had filed an appeal before this Court in MFA No. 4318/2012 and this Court had dismissed the appeal in terms of the order dated 15.06.2012. The learned counsel for the insurer therefore contended that this Court cannot take a different view in so far as the contributory negligence of the driver of the Maruti van as well as the driver of the offending vehicle.

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I have given my anxious consideration to the claim of the parties as well as the contention of the insurer.

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It is not in dispute that the claimant had suffered injuries in the accident and that the fracture of both the bones of the right limb and right hand caused disability to the extent of 25% as stated by PW-2.

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In matters pertaining to grant of

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compensation to minors who are injured in the road traffic accident, the Apex Court in the case of Master Mallikarjun V/s Divisional Manager, National Insurance Company Limited and another reported in ( 2014) 14 Supreme Court Cases 396 had held that in respect of disability above 10% and up to 30% of the whole body, the claimant is entitled to a sum of Rs. 3,00,000/- towards the conventional heads. Learned counsel for the insurer did not dispute the fact that the claimant was a 16 year old girl and that as against the evidence of PW-2 that the claimant had suffered the whole body disability at 55%, the Tribunal accepted the disability at 17%. The learned counsel for the insurer does not dispute that this appeal could also be disposed off on the lines of the law as declared in Master Mallikarjun, referred supra.

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In view of the above, the compensation is

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re-determined and a sum of Rs. 3,75,000/- is ordered as against a sum of Rs. 2,10,000/- awarded by the Tribunal.

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In so far as the liability of the insurer of the

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offending vehicle is concerned, since this Court has already taken a view that the driver of the Maruti van was equally negligent, a different view cannot be taken in this appeal. It is therefore held that the driver of the Maruti van was equally negligent, and responsible for the accident. In that view of the matter, the compensation to which the claimant is entitled to, will have to be proportionately reduced.

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In view of the above, this appeal is allowed

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in part and the impugned Judgment and award of the Tribunal in MVC No.8296/2010 is modified and the compensation is enhanced to a sum of Rs. 1,87,500/- along with interest at the rate of 6% per

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annum from the date of claim petition till the date of realization.

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