Partly allowed

Sri Jagadish v. the Manager

Karnataka HC18 Jan 2022MFA/2454/2012

Case brief

AI extract

What is this about?

This High Court modified an award in a motor accident compensation case, enhancing the quantum awarded by the Tribunal based on the appellant's disability and injuries, while applying the 50% reduction for contributory negligence.

What did the court decide?

Compensation enhanced to Rs. 2,82,540/- gross, reduced to Rs. 1,41,270/- net for the appellant with 6% interest, payable by the insurer within eight weeks.

Sri Jagadish Vs the Manager — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 18^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S. KAMAL

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MFA NO. 2454 OF 2012(MV)

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BETWEEN :

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SRI. JAGADISH S/O SRI. B. SHIVANNA AGED ABOUT 38 YEARS R/AT IYAPPA BAKERY ROAD BABASABARAPALYA(CHECKPOST) KENGERI,

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BANGALORE - 560 060.

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...APPELLANT

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(BY SRI. M.B. CHANDRA CHOODA, ADVOCATE (THROUGH VIDECO CONFERENCE)

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AND:

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THE MANAGER

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BANGALORE METROPOLITAN TRANSPORT CORPORATION K.H. ROAD

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SHANTHI NAGAR

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BANGALORE - 560 027.

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THE MANAGER UNITED INDIA INSURANCE CO. LTD.,

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REGIONAL OFFICE

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SHANKAR NARAYAN BUILDING

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M.G. ROAD BANGALORE - 560 001.

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….RESPONDENTS

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(BY SRI. K. KISHORE KUMAR REDDY, ADVOCATE FOR R2) R-1 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.10.2011 PASSED IN MVC NO.1081/2008 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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The appeal in MFA.2454/2012 is filed by the appellant/claimant under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M.V. Act') against the judgment and award dated 01.10.2011 passed in MVC No.1081/2008 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (SCCH-15) (for short 'the Tribunal').

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The facts leading up to filing of the present appeal briefly stated are that, on 03.02.2008, at about 4.30 p.m., the appellant/claimant was driving the

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Autorikshaw bearing Reg.No.KA-05/B-9967 along with the passengers towards Kengeri on Bengaluru-Mysuru road. At that time, a BMTC Bus bearing Reg.No.KA-01/F-1831 driven by its driver in a rash and negligent manner came from opposite direction dashed against the said Autorikshaw. Due to the impact, the appellant/claimant along with other passengers sustained grievous injuries. The appellant/claimant was taken to BGS Hospital for first aid treatment and thereafter he was shifted to Victoria Hospital. The appellant/claimant spent about Rs.50,000/towards medical expenses.

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Thereupon, the appellant/claimant filed a claim petition under Section 166 of the M.V.Act seeking compensation of `5,00,000/- on the premise that he was aged about 34 years, was a driver by profession and was earning an income. That the accident was caused on account of rash and negligent driving of the offending Bus by its driver. That due to the accident he sustained injury in the nature of fracture of distal shaft of right leg. he is not able to perform his driving work.

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4. Despite service of notice, respondent No.1 did

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not appear and was placed exparte. Respondent No.2/insurance company appeared through its counsel and filed its statement of objections, admitting the issuance of policy in respect of the offending Bus. It was contended that the liability is subject to terms and conditions of the policy. The mode and manner of accident, the age, avocation and income of the appellant/claimant as stated in the claim petition was denied. It was contended that the accident was not on account of rash and negligent driving of the offending Bus by its driver, but on the other hand, the accident was due to negligence on the part of the driver of the Autorikshaw. Hence, sought for dismissal of the claim petition.

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Along with the above claim petition there were two more claim petitions filed by the inmates of the Autorikshaw in MVC.Nos.1082/2008 and 1083/2008 and the Tribunal had taken up the aforesaid cases for common disposal.

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The Tribunal based on the pleadings of the parties, framed issues and recorded evidence. The claimant examined himself as PW.1 and two other additional witnesses have been examined as PWs.2 and 3 and one Dr.Ramesh Krishna has been examined as PW.4 and 37 common documents were marked as Exs.P1 to P37. One J.L.Manjunath, the driver of the BMTC has been examined RW.1 on behalf of respondent No.2 and exhibited 2 documents as Exs.R1 and 2.

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The Tribunal after appreciating the evidence held that the accident in question had occurred on account of contributory negligence on the part of driver of the BMTC as well as the driver of the Autorikshaw and attributed negligence at the ratio of 50% each on them and consequently held that the appellant/claimant is entitled for compensation of Rs.1,97,120/- under the following heads:

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Pain and suffering	`50,000/-
Medical expenses	`49,000/-
Loss of earning during laid up period	`9,000/-
Loss of future earning	`69,120/-
Loss of amenities	`20,000/-
Total	`1,97,120/-

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Aggrieved by the same, the appellant/claimant is before this Court seeking enhancement of the compensation.

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Heard the learned counsel for the parties and perused the records.

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Learned counsel for the appellant/claimant reiterating the grounds urged in the appeal memorandum submitted that the Tribunal grossly erred in assessing the disability at 8% even though Doctor who has been examined as PW.4, in his evidence has deposed that the appellant/claimant has suffered disability to the extent of 32% to right lower limb and 11% to the whole body. He further submits that considering the shortening of his right

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lower limb by 1 inch resulting in restriction of joint movements of right knee, the appellant/claimant is subjected to constant pain and suffering. He further submits that the compensation awarded by the Tribunal under the head of pain and suffering and under other heads are on the lower side. Hence, sought for enhancement of compensation by allowing the appeal.

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On the other hand, learned counsel for the respondent No.2/insurance company justifying the order passed by the Tribunal submitted that no material evidence has been produced except examining the DoctorPW.4 with regard to the disability as claimed by the appellant/claimant. He submits that there is no material on record to show that the alleged disability has resulted in reduction of his functional ability and in the absence of material evidence in this regard, the assessment of disability at 8% made by the Tribunal, be maintained as just and proper as it does not warrant any interference. Hence, sought for dismissal of the appeal.

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12. On thoughtful consideration of the submissions

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made by the learned counsel for the parties, the only point that arises for consideration is:

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"Whether the appellant/claimant has made out a case for enhancement of the compensation?"

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The accident in question involving Autorikshaw and the BMTC Bus is not in dispute. The accident is a head-on-collision. Learned counsel for the

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appellant/claimant fairly submits that in the absence of any material evidence, the order of the Tribunal equally attributing the negligence on the part of the driver of the Autorikshaw and the driver of the BMTC Bus is just and proper and same may not require any interference. However, he submits that the award of compensation requires to be enhanced. The Tribunal has taken notional income of the appellant/claimant at Rs.4,500/- per month, the same is maintained. Though the Tribunal has taken note of the evidence of the Doctor, an Orthopedic Surgeon

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of Victoria Hospital who has deposed to the extent of disability suffered by the appellant/claimant to be at 32% to the right lower limb and 11% to the whole body, the Tribunal has however assessed it at 8% to the whole body. Thus, in the absence of any contrary acceptable evidence, it is inappropriate to reduce the disability as assessed by the Doctor-PW-4 from 11% to 8%. Therefore, the disability assessed by the Doctor at 11% to the whole body requires to be taken into consideration in the instant case instead of 8% as determined by the Tribunal.

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The Tribunal has awarded Rs.50,000/- towards pain and sufferings. In view of the accident resulting in injury which eventually has led to shortening of right lower limb of the claimant by 1 inch and reduction of joint movements of right knee as rightly submitted by the counsel for the appellant/claimant said pain and discomfort is bound to stay throughout the life. Therefore, the award of compensation of Rs.50,000/- under the head of pain and suffering requires to be enhanced to Rs.75,000/- by

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adding Rs.25,000/-, under the facts and circumstances of the case. The medical expenses of Rs.49,000/- awarded by the Tribunal is maintained as it is. The Tribunal has awarded Rs.9,000/- towards loss of earning during the laid up period. The said sum is enhanced to Rs.13,500/-. The appellant/claimant was aged about 34 years at the time of accident and multiplier applicable is 16. Considering the nature of injuries and time taken for healing, the loss of future income would be Rs.95,040/- (4,500x12x16x11%).

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The Tribunal has awarded Rs.20,000/- towards loss of amenities, the same is enhanced to Rs.50,000/- by adding Rs.30,000/-.

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Thus, the appellant/claimant is entitled to enhanced compensation of Rs.2,82,540/- as follows:

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Heads	By Tribunal	By this Court
Pain and suffering	`50,000/-	`75,000/-
Medical expenses	`49,000/-	`49,000/-
Loss of earning during laid up period	`9,000/-	`13,500/-
Loss of future earning	`69,120/-	`95,040/-
Loss of amenities	`20,000/-	`50,000/-
Total	`1,34,000/-	`2,82,540/-

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Since the Tribunal has attributed 50% of

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negligence on the appellant/claimant who was driver of the Autorikshaw at the time of accident, the appellant/claimant would be entitled for only 50% of the aforesaid compensation which is Rs.1,41,270/-.

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The above point is answered accordingly and following order is passed:

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ORDER

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a. The MFA.No.2454/2012 filed by the appellant/claimant is allowed-in-part and the judgment and order of the Tribunal in MVC No.1081/2008 is modified.

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b. The appellant/claimant is held entitled for a compensation of `1,41,270/(Being 50% of total compensation of

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Rs.2,82,540/-) together with interest at 6% per annum from the date of petition till its realization.

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c. The respondent No.2 - insurance company is directed to pay the entire compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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Sd/JUDGE

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mkm

Sri Jagadish v. the Manager

Case brief

What is this about?

What did the court decide?

Sri Jagadish v. the Manager

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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