Partly allowed

Sri. K.Nagendar @ Dinna v. Sri. K.Girish

Karnataka HC14 Oct 2022MFA/2145/2020

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Vehicles Claims Tribunal's award. The Court modified the finding on negligence, rejecting the claimant's lack of license as sole grounds for contributory negligence. It enhanced the total compensation from Rs.441,600 to Rs.609,400 based on better estimated income and disability factors.

What did the court decide?

The appeal is allowed in part. Total compensation enhanced to Rs.609,400. Insurance company directed to deposit entire amount with interest within six weeks.

Sri. K.Nagendar @ Dinna Vs Sri. K.Girish — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.2145 OF 2020(MV)

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BETWEEN

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SRI. K.NAGENDAR @ DINNA S/O KENCHAPPA AGED ABOUT 46 YEARS R/AT NO.789, JALAMANGALA ROAD MANJUNATHA NAGAR RAMANAGARA TOWN RAMANAGARA DISTRICT-562128.

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...APPELLANT

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(BY SRI.RAJU S., ADV.)

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AND

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1 . SRI. K.GIRISH S/O KYATHAIAH

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R/AT HOMBAIAHNADODDI VILLAGE BILAGUMBA POST KASABA HOBLI RAMANAGARA TALUK AND DISTRICT-562128.

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2 . IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD., NO.41, 2ND FLOOR BESIDES MANDAVI MOTORS KRISHTHU COMPLEX LAVELI ROAD BANGALORE-560001. REP BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI.D.VIJAY KUMAR, ADV. FOR R2: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 14.10.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED.02.11.2019 PASSED IN MVC NO.466/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MACT, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 2.11.2019 passed by Addl. MACT and III Addl. District and Sessions Judge, Ramanagara in MVC 466/2015.

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Facts giving rise to the filing of the appeal briefly stated are that on 5.8.2015 when the claimant was riding motorcycle bearing registration No.KA-05HA-2222 and proceeding from Manjunathanagara so as to reach Ramanagara Town for the purpose of purchasing the household articles, in front of M/s.R.R.Bike Service, Jalamangala Road, at that time, another motorcycle bearing registration No.KA-42-R7248 being ridden by its rider at a high speed and in a

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rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident,

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the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.

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On service of notice, the respondents appeared through their respective counsel and filed written statements in which the averments made in the petition were denied.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Dr.Murali Mohan C.R. as PW-2 and

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Dr.Ranga Naik as PW-3 and got exhibited documents namely Ex.P1 to Ex.P99. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence on the part of the claimant and rider of offending vehicle to the extent of 50% each. The Tribunal further held that the claimant is entitled to a compensation of Rs.441,600/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit 50% of the said total compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has

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filed a memo along with copy of the driving licence of the claimant to show that as on the date of accident,

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the claimant was having valid driving licence. The same is taken on record.

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The learned counsel for the claimant has raised the following contentions:

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Regarding liability and negligence: He contended

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that as on the date of the accident, the claimant was having valid driving licence to ride the motorcycle. Even though the Tribunal has rightly held that the accident occurred due to rash and negligent riding of the offending vehicle by its rider, but it has erred in holding that claimant has contributed 50% to the accident only on the ground that he was not having valid driving licence as on the date of accident. The said finding of the Tribunal is contrary to the materials available on record.

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Regarding quantum of compensation:

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Firstly, even though the claimant claims that he

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was earning Rs.30,000/- per month by working as an

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Auto driver, but the Tribunal has taken the notional income as merely as Rs.6,000/- per month.

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Secondly, the claimant has examined the doctor as PWs-2 and 3. PW-2 has deposed that the claimant has sustained 10% disablement of the vision of the left eye and PW-3 has deposed that the claimant has sustained 30-40% disablement of the vision of the left eye. But the Tribunal has taken the whole body disability at 20%, which is on the lower side.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 10 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and

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other incidental expenses are on the lower side. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Regarding liability and negligence: As on the date of the accident, the claimant was not having valid driving licence to ride the motorcycle and he has contributed to the accident and therefore, the Tribunal has rightly held that the claimant has contributed to the accident to the extent of 50% and directed the Insurance Company to pay only 50% of the total compensation amount.

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Regarding quantum of compensation:

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Firstly, even though the claimant claims that he was earning Rs.30,000/- per month, he has not produced any documents to establish his income.

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Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, PW-2 has deposed that the claimant has sustained 10% disablement of the vision of the left eye and PW-3 has deposed that the claimant has sustained 30-40% disablement of the vision of the left eye. Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable and it does not call for interference. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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RE: LIABILITY AND NEGLIGENCE

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10 It is the specific case of the claimant that on 5.8.2015 at 9:00 a.m. when the claimant was

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riding motorcycle bearing registration No.KA-05-HA2222 and proceeding from Manjunathanagara so as to reach Ramanagara Town for the purpose of purchasing the household articles, in front of M/s.R.R.Bike Service, Jalamangala Road, at that time, another motorcycle bearing registration No.KA-42-R7248 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. After recovering from injuries, he has filed the claim petition.

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The claimant has reiterated the averments made

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in the claim petition. To prove his case, he has examined himself as PW-1, Dr.Murali Mohan as PW-2 and Dr.Ranga Naik as PW-3. The respondent has neither examined any witness nor produced any document. The Tribunal only on the ground that the

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claimant was not having valid driving licence as on the date of accident has held that the claimant has contributed to the accident to the extent of 50%. Infact, now the learned counsel for the claimant has produced a memo along with copy of the driving licence of the claimant. Even assuming that claimant was not having valid driving licence as on the date of accident, unless attribution of negligence on the part of the claimant is proved, it cannot be held that the claimant was negligent and has contributed to the accident. Even the Apex Court in the case of Mohammed Siddique and another –v- National Insurance Company Ltd and others (AIR 2020 SC

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520) has held that unless it is established the act of riding along with two others contributed either to accident or to impact of accident upon victim, it cannot lead to a finding of contributory negligence.

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Therefore, in view of the above, the finding of

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the Tribunal that the claimant has contributed to the accident to the extent of 50% on the ground that he was not having driving licence as on the date of accident, is unsustainable. The said finding of the Tribunal is modified and it is held that the rider of the offending vehicle i.e., motorcycle bearing No.KA-42-R7248 was negligent in causing the accident and Insurance Company is directed to deposit the entire compensation amount.

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RE: QUANTUM OF COMPENSATION:

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The claimant claims that he was earning Rs.30,000/- per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the

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accident taken place in the year 2015, the notional income has to be taken at Rs.9,000/- p.m.

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As per wound certificate, the claimant has sustained fracture of left ZMC with supra orbital RIM, frontal sinus and lateral orbital wall. PW-2 has deposed that the claimant has sustained 10% disablement of the vision of the left eye and PW-3 has deposed that the claimant has sustained 30-40% disablement of the vision of the left eye. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 20%. The claimant is aged about 42 years at the time of the accident and multiplier applicable to his age group is ‘14’. Thus, the claimant is entitled for compensation of Rs.3,02,400/(Rs.9,0001214*20%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.27,000/- (Rs.9,000*3 months) under the head ‘loss of income during laid up period’.

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The claimant was treated as inpatient for more than 10 days in the hospital and thereafter, has received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.10,000/- to Rs.40,000/- and under the head of 'pain and sufferings' from Rs.50,000/- to Rs.60,000/-.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	50,000	60,000
Medical expenses including food, nourishment and attendant charges	170,000	170,000
Conveyance charges	10,000	10,000
Loss of income during laid up period	0	27,000
Loss of amenities	10,000	40,000
Loss of future income	201,600	302,400
Total	441,600	609,400

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation

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of Rs.609,400/-.

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In view of this Court holding that the rider of the offending vehicle i.e., motorcycle bearing No.KA-42-R7248 alone was negligent in causing the accident, the Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the

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date of receipt of copy of this judgment .

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Sd/JUDGE

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Sri. K.Nagendar @ Dinna v. Sri. K.Girish

Case brief

What is this about?

What did the court decide?

Sri. K.Nagendar @ Dinna v. Sri. K.Girish

Case brief

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