Partly allowed

Sri Manjunatha Shetty v. Sri Santhosh Karvi

Karnataka HC28 Jun 2021MFA/2164/2016

Case brief

AI extract

What is this about?

This appeal concerned an accidental injury and compensation claim. The High Court re-assessed the quantum of compensation granted by the Motor Accident Claims Tribunal. It modified the award from Rs.1,58,680 to Rs.2,43,680 by adding compensation for loss of future earning capacity and reducing the loss of earning during the laid-up period. The court held that the Criminal Court's acquittal of the

What did the court decide?

Compensation enhanced to Rs.2,43,680 with interest at 6% p.a. from claim date until realization.

Sri Manjunatha Shetty Vs Sri Santhosh Karvi — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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MISCELLANEOUS FIRST APPEAL NO.2164 OF 2016 (MV) C/w

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MISCELLANEOUS FIRST APPEAL NO.755 OF 2016

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In MFA No.2164/2016

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BETWEEN

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Sri Manjunatha Shetty Aged about 58 years S/o Kuppayya Shetty R/at Koni Village Kundapura Taluk Udupi District-576 217.

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...Appellant

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(By Shri Nagaraja Hegde, Advocate)

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AND

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Sri Santhosh Karvi Aged about 26 years S/o Narayana Karvi R/at Udupana Mane Uppunda Village Kundapura Taluk Udupi District-576 232.

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The United India Insurance Co., Ltd.,

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Branch:Kundapura Kanchan Towers NH-17, Kundapura-576 201. Rep. by its Branch Manager.

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...Respondents

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(By Shri O Mahesh, Advocate for R2; vide order dated 01.06.2021 notice to R1 is dispensed with)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 03.11.2015 passed in MVC No.304 of 2013 on the file of the Senior Civil Judge & Member, Additional MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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In MFA No.755/2016

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BETWEEN

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The Branch Manager United India Insurance Co. Ltd. Branch: Kundapura, Kanchan Towers NH-7 Kundapura. By Divisional Manager United India Insurance Co. Ltd., Jewel Plaza, I Floor Maruthi Veethika Udupi-576 101.

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…..Appellant

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(By Shri O Mahesh, Advocate)

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AND

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Manjunatha Shetty Aged about 58 years S/o Kuppayya Shetty R/o Kutkumble House Maravanthe Village Kundapura Taluk

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Udupi District-576 101.

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Santhosh Karvi Aged about 26 years S/o Narayana Karvi R/at Udupana Mane Uppunda Village Kundapura Taluk-576 201.

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...Respondents

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(By Shri Nagaraj Hegde, Advocate for R1; R2 served)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 03.11.2015 passed in MVC No.304 of 2013 on the file of the Senior Civil Judge & Member, Additional MACT, Kundapura, awarding compensation of Rs.1,11,076/- with interest at 6% per annum from the date of petition till the date of deposit.

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These Miscellaneous First appeals coming on for Admission, this day, INDIRESH J., delivered the following:

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J U D G M E N T

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These appeals are filed, challenging the judgment and award dated 03^rd November, 2015 passed in MVC No.304 of 2013 by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura (for short, hereinafter referred to as 'the Tribunal’). MFA No.2164 of 2015 is filed by the claimant and MFA 755 of 2016 is filed by the Insurance Company.

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For the sake of convenience, the parties in this appeal are referred to with their status and rank before the Tribunal.

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It is the case of the claimant that on 26^th May, 2012 at about 8.15 am, the claimant was riding his motorcycle bearing registration No.KA-20/Q-9419 from Uppunda towards Kundapra on NH-6 near Keshava Tailor Shop, Maski, Navunda village, another motorcycle bearing registration No.KA-20/EA-4872 coming from Uppunda side in a high speed and being driven in a rash and negligent manner, dashed to the motorcycle of the claimant and due to the said impact, the claimant fell down and sustained grievous injuries. Immediately, the injured was shifted to Chinmaya Hospital, Kundapura and later was shifted to Adarsha Hospital, Udupi for further treatment. CT scan reveals that the claimant sustained head injury and was treated conservatively. It is also stated that the claimant had taken treatment as an inpatient from 26^th May 2012 to 02^nd June, 2012. It is further stated that even at the time of discharge, the claimant had not gained consciousness and the Doctors have

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advised to take follow-up treatment. It is averred in the claim petition that the claimant was earning Rs.15,000/- per month as a coolie and because of the accident, he has suffered monetarily as also future prospects and hence, filed claim petition before the Tribunal seeking compensation.

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Respondent No.1 though served, remained unrepresented and hence placed ex-parte. Respondent No.2Insurance Company appeared and filed written statement and stated that the liability is subject to the terms and conditions of the policy. The respondent has also denied that the accident occurred due to negligence on the part of the offending vehicle and contended that accident occurred due to the negligence of the claimant himself. It was also contended that the claimant himself is a tort feasor, as the police have registered case against him and hence sought for dismissal of the claim petition. Based on the pleadings, the Tribunal framed issues for its consideration. Claimant has examined himself as PW1 and also examined Doctor as PW2 and produced 11 documents as Exhibits P1 to P11. Respondents have got examined RW1 and

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RW2 and marked documents as Exhibits R1 and R2. Based on the evidence placed on record, the Tribunal by its judgment and award dated 3^rd November, 2015 allowed the claim petition in part and awarded compensation of Rs.1,58,680/- with interest at the rate of 6% per annum from the date of petition till realisation. The Tribunal has held that claimant has contributed in the ratio of 30:70 in respect of the alleged accident. Being not satisfied with the compensation and fastening of liability in an extent of 30%, the claimant has filed MFA No.2164 of 2016. MFA No.755 of 2016 is filed by the respondent-Insurance Company on the question of liability besides other grounds.

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We have heard Sri Nagaraj Hegde, learned counsel appearing for the claimant and Sri O. Mahesh, learned counsel appearing for the respondent-Insurance Company.

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Learned counsel appearing for the claimant submits that the Tribunal has committed an error in fastening 30% negligence on the claimant and he further submits that the finding recorded with regard to negligence is based on assumptions and presumptions. He submitted that claimant was

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an inpatient for about seven days and considering the nature of injuries and period of hospitalisation, the Tribunal should have awarded just compensation. He submits that under other heads too the compensation awarded by the Tribunal is on the lower side and hence, sought for enhancement in compensation.

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Per contra, learned appearing for the respondentInsurance Company challenged the judgment and award of the Tribunal on the ground of liability. He further contended that the Tribunal has not properly appreciated the evidence of RW1 and RW2 while fastening liability towards Insurance Company. He also submits that the compensation awarded by the Tribunal is on the higher side and requires interference in this appeal.

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After hearing the learned counsel appearing for the parties, we have gone through the impugned judgment and award and perused the record. Accident is not in dispute and the claimant sustaining injuries in the accident is also not in dispute. The question to be determined in these appeals is that, whether the claimant has contributed towards the alleged accident. Pursuant to the submission made by the learned

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counsel appearing for the Insurance Company that charge sheet has been laid against the claimant, learned counsel appearing for the claimant has filed memo along with the copy of the judgment dated 08^th January, 2016 passed in CC No.2068 of 2012 by the II Additional Civil Judge and JMFC, Kundapura. On careful scrutiny of the aforesaid judgment it is seen that the Criminal Court acquitted the accused for the offences punishable under Section 279, 337 of the Indian Penal Code read with Section 196 of the MV Act. We are also conscious of the fact that the finding recoded by the Criminal Court has no bearing on the issue No.1 framed in the impugned judgment and award. However, in order to discern the truth, we have carefully scrutinised the evidence on record, particularly Exhibit P3 and Exhibit P6. Perusal of the aforementioned documents would substantiate the fact that the claimant has not contributed towards the alleged accident and therefore the finding recorded by the Tribunal on issues No.1 and 2 requires to be modified, holding that the respondents are jointly and severally liable for actionable negligence on the part of the driver of the offending motorcycle.

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Insofar as award of compensation is concerned, we

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have re-assessed the quantum of compensation awarded by the Tribunal. Taking into consideration the injuries sustained by the claimant as per Exhibit P4-wound certificate and on reappreciation of the evidence of the Doctor-PW2, we are of the considered view that the Tribunal erred in not awarding any compensation under loss of future earning capacity and therefore, in the ends of justice, global compensation of Rs.1,00,000/- is awarded towards loss of future earning. Award of Rs.36,000/- under loss of earning during laid-up period is on

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the higher side and the same is reduced to Rs.21,000/-. Accordingly, the re-assessed compensation to be awarded would be as follows:

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Sl.No.	Head of compensation	Amount (in Rs.)
1.	Pain and suffering	45,000
2.	Medical expenses, food, nourishment, attendant and conveyance charges	37,680
3.	Loss of earning during laid-up period	21,000
4.	Loss of future earning capacity	1,00,000
5.	Loss of amenities	40,000
	Total	2,43,680

Hence the following:

O R D E R

i) MFA No.755 of 2016 filed by the Insurance Company is dismissed;

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ii) MFA No.2164 of 2016 filed by the claimant is allowed in part;

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iii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.2,43,680/(Rupees two lakh forty three thousand six hundred and eighty only) as against Rs.1,58,680/- with interest at the rate of 6% per annum from the date of claim petition till its realisation;

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iv) The portion of the order of the Tribunal inasmuch as negligence, liability and disbursement remains intact;

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v) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order;

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vi) The modified compensation amount shall be disbursed in terms of the order of the Tribunal;

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vii) Draw modified award accordingly;

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viii) Registry shall transfer the amount in deposit along with the original records to the jurisdictional tribunal forthwith.

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ix) Pending IAs, if any, stand disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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lnn

Sri Manjunatha Shetty v. Sri Santhosh Karvi

Case brief

What is this about?

What did the court decide?

Sri Manjunatha Shetty v. Sri Santhosh Karvi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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