Partly allowed

Ashok Narayan Polyekar, v. Channamallikarjun Swamy

Karnataka HC1 Dec 2022MFA/24037/2011

Case brief

AI extract

What is this about?

The single judge allowed three miscellaneous first appeals under Section 173(1) of the MV Act. The Court found composite negligence, rejected the insurer's reliance on a charge-sheet, enhanced compensation for two claimants by Rs.40,000 each, and quantified new compensation for one claimant, directing insurers to pay half.

What did the court decide?

Compensation enhanced by Rs.40,000 for two claimants and quantified for the third (50% recoverable from insurer). Insurers directed to deposit amounts with interest at 6% p.a.

Ashok Narayan Polyekar, Vs Channamallikarjun Swamy — Karnataka HC (2022) — LawSathi Research

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ

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MISCELLANEOUS FIRST APPEAL NO. 24038 OF 2011 (MV-) C/W

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MISCELLANEOUS FIRST APPEAL NO. 24036 OF 2011 MISCELLANEOUS FIRST APPEAL NO. 24037 OF 2011

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IN MISCELLANEOUS FIRST APPEAL NO. 24038 OF 2011

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BETWEEN:

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NARAYAN LAVU KADAM, S/O. LAVU KADAM, AGED: 28 YEARS, R/O: C/O: SUNIL GAVAS,

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OPP: HARI MANDIR,BELGAUM.

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(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)

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AND:

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CHANNAMALLIKARJUN SWAMY, AGE: MAJOR, OCC: OWNER OF TATA SUMO BEARING REG.NO.KA-23/M-3887, R/O: PLOT NO.2366, J.N.METGUD BUILDING, SECTOR NO. 11, MAHANTESH NAGAR, BELGAUM.

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THE MANAGER, THE NEW INDIA ASSURANCE CO., LTD., CLUB ROAD, BELGAUM.

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SHRI VAIBHAV EVANDE AGE: MAJOR, R/O: VAIBHAV GARAGE, NEAR DODA MAHAL,DODA MAHAL ROAD,

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…APPELLANT

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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SHINDHUDURG, MAHARASTRA STATE.

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…RESPONDENTS

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(NOTICE TO R1 HELD SUFFICIENT, BY SRI.RAVINDRA MANE, ADV. FOR R2, R3 SERVED)

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THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:23-06-2011 PASSED IN MVC.NO.2104/2006 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MISCELLANEOUS FIRST APPEAL NO. 24036 OF 2011 (MV-)

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BETWEEN:

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SAMEER BABURAO POLYEKAR, S/O. BABURAO POLYEKAR, AGED: 28 YEARS, R/O: MORGAO, TQ: DODDAMARG,DIST: SHINDHUDUG, STATE: MAHARASHTRA.

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(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)

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AND:

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CHANNAMALLIKARJUN SWAMY, AGE: MAJOR, OCC: OWNER OF TATA SUMO NO.KA-23/M-3887, R/O: PLOT NO. 2366, J.N.METGUD BUILDING, SECTOR NO.11, MAHANTESH NAGAR, BELGAUM.

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THE MANAGER, THE NEW INDIA ASSURANCE CO., LTD., CLUB ROAD, BELGAUM.

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…APPELLANT

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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SRI VAIBHAV EVANDE, AGE: MAJOR, R/O: VAIBHAV GARAGE, NEAR DODA MAHAL, DODA MAHAL ROAD, SHINDHUDURG, STATE: MAHARASHTRA.

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…RESPONDENTS

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(R1 SERVED, BY SRI. RAVINDRA R.MANE, ADV. FOR R2, R3-NOTICE DISPENSED WITH)

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THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:23-06-2011 PASSED IN MVC.NO.2105/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM, DISMISSING THE PETITION FILED U/SEC.166 OF MV ACT.

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IN MISCELLANEOUS FIRST APPEAL NO. 24037 OF 2011 (MV-)

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BETWEEN:

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ASHOK NARAYAN POLYEKAR, S/O. NARAYAN POLYEKAR AGE: 29 YEARS,R/O: C/O: SUNIL GAVAS, OPP: HARI MANDIR,BELGAUM.

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(BY SRI. Y LAKSHMIKANT REDDY, ADVOCATE)

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AND:

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CHANNAMALLIKARJUN SWAMY, AGE: MAJOR, OCC: OWNER OF TATA SUMO NOKA-23/M-3887, R/O: PLOT NO. 2366,J.N.METGUD BUILDING, SECTOR NO. 11, MAHANTESH NAGAR, BELGAUM.

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…APPELLANT

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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THE MANAGER, THE NEW INDIA ASSURANCE CO., LTD., CLUB ROAD, BELGAUM.

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SHRI VAIBHAV EVANDE, AGE: MAJOR,R/O: VAIBHAV GARAGE, NEAR DODA MAHAL,DODA MAHAL ROAD, SHINDHUDURG,STATE: MAHARASTRA.

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…RESPONDENTS

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(R1 SERVED,

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BY SRI. RAVINDRA R.MANE, ADV. FOR R2, R3-NOTICE DISPENSED WITH)

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MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGEMENT AND AWARD DTD:23-06-2011 PASSED IN MVC.NO.2106/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I AND MEMBER, ADDL. MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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All the claimants in these appeals are the injured victims who have challenged the rejection of their claim petition in M.V.C.No.2105/2006 as well as the award of meagre compensation in M.V.C.Nos.2104/2006 and 2106/2006 by the Fast Track Court-I and Member, Addl. MACT, Belagavi.

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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The claim petition discloses that all the three

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claimants were riding a motorcycle bearing registration No. MH-07/K-6747 from Savantwadi to Morgaon. When they reached near the Maruthi temple, a Tata Sumo vehicle bearing registration No.KA-23/M-3887 (offending vehicle) driven from the opposite direction in a rash and negligent manner dashed against the motorcycle. As a result, the claimants suffered injuries and were treated at Goa Medical College, Panaji. The claimant in M.V.C.No.2104/2006 claimed that he was a skilled worker doing centering work and was earning Rs.5,000/- p.m. The claimant in M.V.C.No.2105/2006 claimed that he was employed in a private company and was earning a sum of Rs.5,000/- p.m. while the claimant in M.V.C.No.2106/2006 claimed that he was also doing centering work and was earning Rs.5,000/- p.m. All of them filed claim petitions claiming compensation from the owner and insurer of the offending vehicle.

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The owner of the offending vehicle contested the

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claim petitions contending that the accident was due to the negligent riding of the motorcycle by the claimants. He

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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contended that the vehicle was duly insured and the driver possessed a valid licence and therefore, it was the insurer who was bound to indemnify him.

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The insurer, on the other hand, claimed that there were three persons riding on the motorcycle and therefore, the claimants were negligent. It also claimed that the accident occurred due to negligence on the part of the rider himself. Based on these contentions, the claim petitions were set down for trial.

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The claimants were examined as PWs-1, 2 and 3 and a doctor was examined as PW-4 and they marked Ex.P.1 to Ex.P.26. The insurer marked the policy of insurance by consent. Based on the oral and documentary evidence, the Tribunal held that the charge-sheet was filed against the rider of the motorcycle. It also held that he was negligent in riding the vehicle and caused the accident and therefore, the claim petition filed by him in M.V.C.No.2105/2006 was rejected.

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In so far as the claim petition in M.V.C.Nos.2104/2006, it held that the claimant had suffered

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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condylar fracture of right femur and was treated between 03.05.2005 and 06.05.2005 and awarded the following compensation:

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Sl.No.	Heads	Amount
1.	Towards pain and suffering	Rs. 20,000/-
2.	Towards medical expenses	Rs. 4,000/-
3.	Towards food, nourishment and attendant charges	Rs. 5,000/-
4.	Towards loss of income during treatment period	Rs. 9,000/-
5.	Towards loss of amenities	Rs. 10,000/-
6.	Towards loss of future income	Rs. 97,200/-
	Total	Rs.1,45,200/-

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In so far as claimant in M.V.C.No.2106/2006 is concerned, the Tribunal noticed that he had suffered fracture of right fibula and tibia and therefore, awarded the following compensation:

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Sl.No.	Heads	Amount
1.	Towards pain and suffering	Rs. 25,000/-
2.	Towards medical expenses	Rs. 3,000/-
3.	Towards food, nourishment and attendant charges	Rs. 3,000/-
4.	Towards loss of income during treatment period	Rs. 9,000/-
5.	Towards loss of amenities	Rs. 15,000/-
6.	Towards loss of future income	Rs. 84,240/-
	Total	Rs.1,39,240/-

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In so far as the liability to pay the compensation is concerned, the Tribunal held that the owner of the motorcycle

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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was liable to pay the compensation along with interest @ 9%

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p.a. from the date of claim petition till the date of realization. Being aggrieved by the same, the present appeals are filed.

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Learned counsel for the claimant in

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M.V.C.No.2105/2006 contended that the accident occurred in the middle of the road and therefore, notwithstanding the charge-sheet filed against the rider of the vehicle, the Tribunal ought to have held that there was composite negligence on the part of the driver of the offending vehicle as well as the claimant and therefore, the Tribunal ought to have recorded a finding regarding the composite negligence of both on the driver of the offending vehicle as well as the claimant. He contended that the Tribunal committed an error in not determining the compensation to which the claimant was entitled to. In so far as other claim petitions are concerned, he contended that the compensation awarded by the Tribunal was liable to be enhanced taking into account the nature of the injuries sustained by the claimants.

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Per contra, learned counsel for the insurer contended that the rider and two pillion riders were riding the

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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motorcycle which itself was a violation and could possibly be a

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reason for the cause of the accident. He submitted that the charge-sheet was filed against the rider of the motorcycle thereby indicating that it was he who was responsible for the accident. At any rate, he contended that the rider of the motorcycle had strayed onto the middle of the road though he was expected to be on the left side of the road and therefore, it was he who was negligent and responsible for the accident. The learned counsel relied upon the judgment of a co-ordinate bench of this Court in M.F.A.No.25390/2011 disposed off on 07.04.2017 and contended that the claimants were negligent. In so far as the quantum of compensation is concerned, the learned counsel submitted that the Tribunal had rightly assessed the compensation to which the claimants were entitled to.

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Per contra, learned counsel for the claimants contended that there was no negligence on the part of the rider of the motorcycle. He contended that merely because two pillion riders were riding the motorcycle that in itself cannot be considered as negligence unless there was evidence to indicate

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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that three people riding on the motorcycle was the cause of the accident. In this regard, he relied upon the judgment of the Hon’ble Apex Court in SYED SADIQ AND OTHERS VS. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO., LTD., (2014 (2) SCC 735) . He also contended that the sketch placed on record would indicate that the accident occurred in the middle of the road and therefore, the Tribunal ought to have considered that both the vehicles were responsible for the accident.

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I have considered the submissions made by the learned counsel for the appellants/claimants and the learned counsel for the respondent/insurer.

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It is evident from the material on record that the accident occurred in the middle of the road. The driver of the offending vehicle had strayed on to the right side of the road and likewise the claimant who was riding the motorcycle had also strayed on to the right side of the road There is no evidence indicating as to why the motorcycle strayed on to the right side. It could possibly be that the rider of the motorcycle was attempting to overtake another vehicle. The fact that both

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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the vehicles were moving on the right side of the road gives an

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indication that the accident occurred in the middle of the road and therefore, both of them were equally negligent and responsible for the accident. The Tribunal committed an error in relying upon the charge-sheet to hold that the rider of the motorcycle was negligent unmindful of the fact that the proceedings in the criminal case had nothing to do with the proceedings in a case under Section 166 of the Motor Vehicles Act. The Tribunal ought to have decided the case based on probabilities of the evidence placed before it and therefore, the order rejecting the petition filed by the claimant in M.V.C.No.2105/2006 deserves to be set aside.

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In so far as the contention that three riders were riding a motorcycle and therefore, they were negligent and were responsible for the accident, there is no evidence on record to establish where the three riders began their journey. If there is no evidence to indicate that the riders and the pillion riders had just began their journey and that three of them riding the motorcycle was the cause for the accident, it cannot be concluded that the accident was due to the negligence on

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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the part of the rider as well as the pillion riders. The Hon’ble Apex Court as rightly contended by the learned counsel for the claimants has held that unless there was evidence to establish that the extra pillion rider on the motorcycle resulted in the accident, that will not exonerate the liability of the insurer.

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Having so held, the next question that arises for consideration is the amount of compensation to which the claimants are entitled to.

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The claimant in M.V.C.No.2105/2006 had suffered fracture of right femur shaft lower 1/3^rd , fracture of the upper 1/3^rd of shaft of right tibia and fibula, crush injury of the tip of the right ring finger with amputation of the distal phalanx the right ring finger, closed fracture of 5^th metacarpal bone. The claimant underwent surgery for fixation of two distal and one proximal bolt, external fixator done after debridement and suturing of the wounds. PW-4 deposed that the fractures were malunited. He deposed that the claimant has suffered permanent disability to the extent of 16% to the right upper limb and 50% to the right lower limb.

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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The claimant claimed that he was employed in a private company and was drawing salary of Rs.5,000/- p.m. Though the claimant claimed that he was employed in a private company, he did not place on record his salary slip. Therefore, the notional income as prescribed by the High Court Legal Services Authority deserves to be applied in this case. Since the accident occurred in the year 2005, it is appropriate to consider the notional income of the claimant at a sum of Rs.3,500/-. Having regard to the nature of the injuries sustained, the claimant in M.V.C.No.2105/2006 is entitled to the following compensation:

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Sl.No.	Heads	Amount
1.	Towards pain and suffering Rs.	40,000/-
2.	Towards medical expenses Rs.	4,000/-
3.	Towards food, nourishment and attendant charges Rs.	15,000/-
4.	Towards loss of income during treatment period Rs.	7,000/-
5.	Towards loss of amenities Rs.	25,000/-
6.	Towards loss of future income due to disability (Rs.3,500X12X16X20%) Rs.1	,34,400/-
	Total Rs.	2,25,400/-

¶108

In view of the above, the compensation in M.V.C.No.2105/2006 is determined at a sum of Rs.2,25,400/-.

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

¶111

In so far as the other claimants are concerned, the claimant in M.V.C.No.2104/2005 has suffered condylar fracture of the right femur and the disability was considered at 15%. However, the compensation towards pain and suffering and loss of amenities was meagre and therefore, the compensation in M.V.C.No.2104/2005 deserves to be globally enhanced by a sum of Rs.40,000/-.

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Likewise, in M.V.C.No.2106/2006, the claimant had suffered fracture of right tibia and fibula and the Tribunal had assessed the disability at 13% by considering his income at a sum of Rs.3,000/- p.m. However, the compensation ought to have been considered by working out the notional income at a sum of Rs.3,500/- p.m. The compensation awarded by the Tribunal towards loss of amenities deserves to be marginally enhanced. Hence, the claimant in M.V.C.No.2106/2006 is entitled to global enhanced compensation of a sum of Rs.40,000/-.

¶113

In so far as the liability to pay the compensation is concerned, it is evident from the findings recorded above that

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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the owner of the motorcycle is liable to pay 50% of the compensation while owner and insurer of the offending vehicle were liable to pay the remaining 50%.

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In that view of the matter, all these appeals are allowed in part and the claimants in M.V.C.Nos.2104/2006 and 2106/2006 are entitled to enhanced compensation of a sum of Rs.40,000/- and Rs.40,000/- respectively which is payable by the owner of the motorcycle bearing registration No.MH-07/K6747 and the insurer of the offending vehicle bearing registration No. KA-23/M-3887 in equal proportion of 50% each along with interest @ 6% p.a. from the date of claim petition till deposit.

¶118

In so far as the claimant in M.V.C.No.2105/2006 is concerned, he is entitled to 50% compensation determined which is recoverable from the insurer of the offending vehicle along with interest at the rate of 6% p.a. from the date of claim petition till the date of deposit. The insurer is directed to deposit the compensation and interest before the Tribunal within a period of one month from the date of receipt of copy of this order.

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MFA No. 24038 of 2011 C/W MFA No. 24036 of 2011, MFA No. 24037 of 2011

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Upon such deposit, 50% of enhanced compensation in M.V.C.No.2105/2006 shall be deposited in the name of the claimant in any nationalized bank for a period of three years.

¶122

The claimants in M.V.C.Nos.2104/2006 and M.V.C.No.2106/2006 are entitled to recover the compensation awarded from either the owner of the motorcycle or the insurer of the offending vehicle in which event the insurer shall be entitled to recover the proportionate compensation and interest from the owner of the motorcycle.

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The amount in deposit is ordered to be transmitted to the Tribunal for further orders.

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The registry is directed to send back the trial Court records forthwith.

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(Sd/-) JUDGE

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List No.: 1 Sl No.: 13

Ashok Narayan Polyekar, v. Channamallikarjun Swamy

Case brief

What is this about?

What did the court decide?

Ashok Narayan Polyekar, v. Channamallikarjun Swamy

Case brief

What is this about?

What did the court decide?

What the court decided

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