Partly allowed

Nishanth N R v. Jagadish B R

Karnataka HC11 Jan 2021MFA/6694/2019

Case brief

AI extract

What is this about?

In this motor accident compensation appeal, the High Court enhanced the total compensation awarded by the Tribunal from Rs.6,22,556 to Rs.9,08,956. The Court recalculated loss of earning based on notional income, increased pain and suffering and future amenities, adjusted medical and conveyance charges, and deducted 20% for the appellant's contributory negligence.

What did the court decide?

The total compensation award was modified and enhanced to Rs.9,08,956/-, with interest at 6% per annum payable by the insurance company within 90 days.

Nishanth N R Vs Jagadish B R — 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 11^TH DAY OF JANUARY, 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 M.I.ARUN

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MFA NO.6694 OF 2019 (MV)

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BETWEEN :

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NISHANTH N. R. S/O RATHISH K. S. AGED ABOUT 23 YEARS R/AT 89, NANJARAYAPATANA VILLAGE AND POST SOMWARPET TALUK KODAGU DISTRICT – 571 236 ... APPELLANT

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(BY SRI. CHANDRAMOULI H. S., ADVOCATE)

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AND :

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JAGADISH B. R. S/O RUKMAIAH B. AGED ABOUT 26 YEARS R/AT HERAVANADU VILLAGE MADIKERI TALUK

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KODAGU DISTRICT – 571 201

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MAHESH M. S/O MAHALINGAPPA AGED ABOUT 41 YEARS R/AT NO.139/140 ASHRAYA LAYOUT ALLANAHALLI, KASABA HOBLI MYSURU – 570 026

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THE MANAGER

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CHOLAMANDALA GENERAL

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INSURANCE COMPANY DARE HOUSE, 2^ND FLOOR NO.2, NSC BOSE ROAD CHENNAI – 600 001

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RATISH K. S. MAJOR IN AGE R/AT 89, NANJARAYAPATANA VILLAGE AND POST SOMWARPET TALUK KODAGU DISTRICT – 571 324

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THE MANAGER NEW INDIA ASSURANCE COMPANY MADIKERI, KODAGU DISTRICT PIN-571 201 ... RESPONDENTS

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(BY SRI. MURALIDHAR NEGAVAR, ADV. FOR R3; SRI. RAVISHANKAR A., ADV. FOR R5; R1, R2 AND R4 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2019 PASSED IN MVC NO.38/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT, KODAGU, MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY, M.I.ARUN J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award passed in MVC

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No.38/2018 by the I Additional District Judge and MACT, Kodagu at Madikeri, dated 01.04.2019, the petitioner therein has preferred this appeal.

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For the sake of convenience, parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that on 03.01.2018

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the petitioner and his friends were proceeding to Mangalore and the petitioner was riding the Motor Bike bearing No.KA12-Q-0401 on Mangalore road. A Mahindra Pickup Jeep bearing Reg.No.KA-09-C-4882 driven by the respondent No.1 in a rash and negligent manner dashed against the motor bike of the petitioner because of which, petitioner sustained grievous injury.

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Respondent No.1 is the driver of the offending

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vehicle, respondent No.2 is the owner of the offending vehicle, respondent No.3 is the insurer of the offending vehicle, respondent No.4 is the owner of the Motor Bike being driven by the petitioner and respondent No.5 is the insurance company with which the motor bike is duly insured.

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After service of notice, respondent Nos.1 to 3 and

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5 appeared through their respective counsel. Respondent

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Nos.3 and 5 have filed separate objections and no objections have been filed on behalf of respondent Nos.1 and 2. Respondent No.4 was placed exparte. Respondent Nos.3 and 5 have denied their liability and sought for dismissal of the petition.

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The petitioner examined himself as PW-1 and got marked Exs.P.1 to P.22. The respondents have not examined any witness but got marked Ex.R.1. Through Court Commissioner CW-1 was examined and Exs.C.1 to C.3 were got marked.

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Based on the pleadings and the evidence let in, the Tribunal concluded that the 80% liability based on negligence is attributable to the driver of the Mahindra Pickup Jeep and 20% is attributable to the petitioner. Further, the Tribunal quantified total compensation of Rs.7,78,195/- and has awarded Rs.6,22,556/- (80% of the compensation amount) to the petitioner payable by respondent Nos.2 and 3 jointly and severally. Not satisfied by the same, petitioner has preferred this appeal. The

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petitioner has preferred this appeal on the ground that the compensation awarded under different heads is on the lower side. He does not dispute the contributory negligence on his part seriously.

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The petitioner at the time of the accident was studying Law at J.S.S. College in Mysuru and was aged about 22 years. It is found that the petitioner has sustained permanent physical disability at 60% to the right lower limb and Tribunal has assessed the permanent disability at 20% to the whole body, which in our opinion is correct. However, the Tribunal has taken into consideration a sum of Rs.60,000/- as annual income to the petitioner, while considering the age, in our opinion is on the lower side. Admittedly, the accident is of the year 2018. As per the chart prepared by the Karnataka State Legal Services Authority in consultation with the Insurance Companies, the notional income in the absence of proof of income to be adopted for the year 2018 is Rs.12,500/- per month. Given the age, multiplier applicable is ‘18’. Thus, towards loss of earning due to permanent disability taking into

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consideration the disability at 20% to the whole body, the petitioner would be entitled to compensation of Rs.5,40,000/- (12,500 x 12 x 18 x 20%) as against Rs.2,16,000/- awarded by the Tribunal. Towards pain and sufferings, the Tribunal has awarded a sum of Rs.40,000/-, we deem it appropriate to enhance the same to Rs.75,000/-. Towards reimbursement of medical expenses, the Tribunal based has awarded a sum of Rs.3,81,195/based on the records available, we deem it appropriate and correct. Towards conveyance charges, the Tribunal has awarded a sum of Rs.41,000/-, we deem it appropriate to reduce the same to Rs.30,000/-. Towards future medical expenses, the Tribunal has awarded a sum of Rs.50,000/-,

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we deem it appropriate and retain it at Rs.50,000/-. Towards loss of happiness and future amenities, a sum of Rs.20,000/- is awarded, we deem it appropriate to enhance the same to Rs.30,000/-. Towards loss of Academic year, a sum of Rs.30,000/- is awarded, we deem it appropriate and correct. Thus, in all, a compensation is quantified to Rs.11,36,195/-. The Tribunal has attributed 20% negligence

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on the part of the petitioner for the cause of the accident.

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It has reasoned that “by considering the road width at the accident spot and PW-1 proceeding on a curve road with downward gradient, the petitioner could have avoided the accident by moving his motorbike to the extreme left side of the road. It appears that the petitioner also could not immediately control his motorbike and negotiate the curve by proceeding on the extreme left side of the road. Thus, the material on record and evidence of PW-1 himself would indicate that there is contributory negligence on the part of the petitioner also in causing the accident. On a consideration of the evidence on record, I hold that the accident occurred due to 80% negligence of the 1^st respondent in driving the Mahindra Bolero Pickup Jeep and 20% negligence of the petitioner himself in riding the Motorbike”. The petitioner does not seriously dispute the said finding of the Tribunal. Hence, in our opinion, the Tribunal was correct in holding that the petitioner is also liable for the cause of the accident and 20% of negligence is attributable to him. As 20% negligence is attributable to

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the petitioner to the cause of the accident, a sum of Rs.2,27,239/- is deducted from the same. The petitioner is entitled to a sum of Rs.9,08,956/-.

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Hence, the following:

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ORDER

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i] Appeal is allowed in part.

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ii] The total compensation awarded by the Tribunal is modified and enhanced to Rs.9,08,956/after deducting 20% of contributory negligence as against Rs.6,22,556/which shall carry interest at the rate of 6% per annum on the enhanced compensation from the date of the claim petition till its realization.

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iii] The insurance company shall deposit the re-assessed total compensation 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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iv] The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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v] The modified compensation shall be disbursed in terms of the order of the Tribunal.

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vi] Draw modified award accordingly.

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vii] Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.

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Sd/- JUDGE

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Sd/JUDGE

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MH/-

Nishanth N R v. Jagadish B R

Case brief

What is this about?

What did the court decide?

Nishanth N R v. Jagadish B R

Case brief

What is this about?

What did the court decide?

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