Partly allowed

Kumara v. Mahesh B R

Karnataka HC17 Oct 2022MFA/4096/2019

Case brief

AI extract

What is this about?

High Court of Karnataka modified a Claims Tribunal judgment in three motor accident cases set aside, finding of contributory negligence on the motorcycle rider, enhanced compensation amounts, and directed the insurance company to deposit the full enhanced compensation with adjusted interest rates.

What did the court decide?

Trials judgment modified; Compensation enhanced to Rs.3,90,400 and Rs.3,66,900 in two cases and Rs.100,000 in one case; Driver alone held negligent; Insurance directed to deposit full amounts.

Kumara Vs Mahesh B R — 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 17^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. 4096 OF 2019(MV) C/W

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MFA Nos.4059 OF 2019(MV) & 4068 OF 2019(MV)

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IN MFA 4096/2019 BETWEEN

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KUMARA

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S/O. LATE. DASACHARI AGED ABOUT 32 YEARS R/AT NO. 52

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DUDDAGERE VILLAGE AND POST VARUNA HOBLI, MYSORE 570001.

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...APPELLANT

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(BY SRI. SHANTHARAJ K., ADV.)

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AND

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1 . MAHESH B R S/O. RANGASWAMY

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AGED ABOUT 41 YEARS R/AT NO. 161 K.R PETE (V) AND (P), CHIKKAMAGALURU (D) 577 133.

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2 . UNITED INDIA INSURANCE COMPANY LIMITED

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BY ITS MANAGER MOTOR TP HUB NO. 1134, PRINCE OF VALES ROAD BALLAL CIRCLE CHAMARAJA PURAM MYSURU-570005.

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…RESPONDENTS

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(BY SRI.C.SHANKAR REDDY, ADV. FOR R2: NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.02.06.2018, PASSED IN MVC NO.229/2017, ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 4059/2019 BETWEEN

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SHREENIVASA MURTHY S/O.CHELUVARAJU AGED ABOUT 36 YEARS R/AT NO. 4068/1 1^ST CROSS, SIDDAPPAJI TEMPLE ROAD GANDHI NAGARA MYSORE 570001.

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...APPELLANT

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(BY SRI. SHANTHARAJ K., ADV.)

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AND

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1 . MAHESH B R S/O. RANGASWAMY

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AGED ABOUT 41 YEARS R/AT NO. 161 K.R PETE (V) AND (P), CHIKKAMAGALURU (D) 577 133.

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2 . UNITED INDIA INSURANCE COMPANY LIMITED BY ITS MANAGER MOTOR TP HUB NO. 1134, PRINCE OF VALES ROAD BALLAL CIRCLE, CHAMARAJA PURAM MYSURU-570005.

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…RESPONDENTS

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(BY SRI.C.SHANKAR REDDY, ADV. FOR R2: NOTICE TO R1 IS DISPENSED WITH: V/O DATED: 08.07.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.02.06.2018, PASSED IN MVC NO.230/2017, ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 4068/2019 BETWEEN

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LOKESH S/O NINGAIAH AGED ABOUT 30 YEARS R/AT NO. 96, 1^ST CROSS, DUDDAGERE VILLAGE AND POST VARUNA HOBLI, MYSORE 570001.

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...APPELLANT (BY SRI. SHANTHARAJ K., ADV.)

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AND

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1 . MAHESH B R S/O. RANGASWAMY AGED ABOUT 41 YEARS R/AT NO. 161 K R PETE (V) AND (P), CHIKKAMAGALURU (D) 577 133.

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2 . UNITED INDIA INSURANCE COMPANY LIMITED BY ITS MANAGER MOTOR TP HUB NO. 1134, PRINCE OF VALES ROAD BALLAL CIRCLE CHAMARAJA PURAM MYSURU-570005.

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…RESPONDENTS

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(BY SRI.C.SHANKAR REDDY, ADV. FOR R2: NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.02.06.2018, PASSED IN MVC NO.228/2017, ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) have been filed by the claimants being aggrieved by the judgment dated 2.6.2018 passed by MACT, Mysuru in MVC Nos.228/2017, 229/2017 and

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230/2017.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 4.12.2016, near TN Pura road, at Vajamangala Gate, when the claimants were proceeding on motorcycle bearing registration No.KA55-C-6759 ridden by Lokesh, claimant in MVC 228/2017 towards Varuna Village, at that time, car bearing registration No.KA-18-P-3459 being driven by

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its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimants. As a result of the aforesaid accident, the claimants sustained grievous injuries and were hospitalized.

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3. The claimants filed petitions under Section

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166 of the Act seeking compensation. It was pleaded that they spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants themselves were examined as PWs-1 to 3 and Dr.Puttaswamy was

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examined as PWs-4 and 5 and got exhibited documents namely Ex.P1 to Ex.P26. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R2. 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 rider of the motorcycle and driver of the car to the extent of 10% and 90% respectively. The Tribunal further held that the claimant in MVC 228/2017 is entitled to a compensation of Rs.314,300/-, claimant in MVC 229/2017 is entitled for compensation of Rs.276,700/and claimant in MVC 230/2017 is entitled to a compensation of Rs.60,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit 90% of the said compensation amount along with interest. Being aggrieved, the present appeals have been filed.

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6. The learned counsel for the claimants has

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raised the following contentions:

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Re: Negligence

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The accident occurred due to rash and negligent driving of the car by its driver. The Tribunal considering the evidence of the parties has rightly held that the driver of the car alone is negligent in causing the accident. Only on the ground that three persons were traveling on the motorcycle, the Tribunal has held that the rider of the motorcycle has also contributed to the accident to the extent of 10%. This finding of the Tribunal is contrary to the materials available on record. In support of his case, he has relied upon decision of 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).

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Re: Quantum of compensation:

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The learned counsel for the claimant in respect

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of quantum of compensation has contended as follows:

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IN MFA 4068/2019 (MVC 228/2017) (Claimant-Mr.Lokesh)

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Firstly, even though the claimant claims that he was doing coolie work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.9,000/- per month.

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Secondly, the claimant has examined the doctor as PW-4. The doctor in his evidence has stated that the claimant has suffered functional disability of 23.71%. But the Tribunal has taken the whole body disability at 10%, 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 15 days. Even after discharge from the hospital, he was not in a position to

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discharge his regular work. He has suffered lot of pain

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during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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IN MFA 4096/2019 (MVC 229/2017) (Claimant-Mr.Kumara)

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The learned counsel for the claimant in respect

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of quantum of compensation has contended as follows:

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Firstly, even though the claimant claims that he was doing coolie work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.9,000/- per month.

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Secondly, the claimant has examined the doctor as PW-5. The doctor in his evidence has stated that the claimant has suffered functional disability of 22%.

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But the Tribunal has taken the whole body disability at 9%, 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 13 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 other incidental expenses are on the lower side.

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IN MFA 4059/2019 (MVC 230/2017) (Claimant-Shreenivasa Murthy)

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The learned counsel for the claimant in respect of quantum of compensation has contended that the claimant has sustained grievous injuries. He was treated as inpatient for a period of 12 days. He has produced discharge summary, CT-Scan report and

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medical bills at Ex.P-17 to 20. 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 overall compensation granted by the Tribunal is on the lower side.

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

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Re: Negligence

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The accident occurred due to negligence of the rider of the motorcycle. Since he was riding the motorcycle along two pillion riders, he lost control over the motorcycle and caused accident. Hence, he has contributed to the accident. Therefore, the Tribunal has rightly held that the accident occurred due to contributory negligence on the part of the rider

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of the motorcycle and driver of the car to the extent of 10% and 90% respectively.

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Re: Quantum of compensation:

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The learned counsel for the Insurance Company in respect of quantum of compensation has contended as follows:

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IN MFA 4068/2019 (MVC 228/2017) (Claimant-Mr.Lokesh)

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Firstly, even though the claimant claims that he was earning Rs.15,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, the doctor in his evidence has stated that the claimant has suffered permanent disability of 23.71%. The Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 10%.

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Thirdly, 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.

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Fourthly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount is on the higher side.

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IN MFA 4096/2019 (MVC 229/2017) (Claimant-Mr.Kumara)

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Firstly, even though the claimant claims that he

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was earning Rs.15,000/- 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, the doctor in his evidence has stated that the claimant has suffered permanent disability of 22%. The Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 9%.

Tribunal at 9% p.a. on the compensation amount is on the higher side.

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IN MFA 4059/2019 (MVC 230/2017) (Claimant-Shreenivasa Murthy)

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The learned counsel for the Insurance Company has contended that the claimant has sustained simple injuries and he has not examined the doctor regarding disability and injuries suffered by him. Considering the same, the Tribunal has granted just and reasonable compensation and it does not call for interference.

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Heard the learned counsel for the parties

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and perused the judgment and award of the Tribunal.

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RE: NEGLIGENCE

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The case of the claimants is that on 4.12.2016 when the claimants were proceeding on motorcycle bearing registration No.KA-55-C-6759 ridden by Lokesh, claimant in MVC 228/2017 towards

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Varuna Village near Vajamangala Gate on T.N.PuraMysuru Main Road, at that time, car bearing registration No.KA-18-P-3459 being driven by its driver at a high speed and in a rash and negligent manner came in opposite direction, dashed to the vehicle of the claimants. As a result of the aforesaid accident, the claimants sustained grievous injuries and were hospitalized. After recovering from the injuries, the claimants have filed claim petitions.

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The Tribunal considering the evidence of the parties has rightly given a clear finding that the driver of the car was driving the car in zigzag manner and came from opposite direction to the extreme right side in a rash and negligent manner and dashed to the motorcycle. Only on the ground that three persons were traveling on the motorcycle, the Tribunal has held that rider of the motorcycle has also contributed to the accident to the extent of 10%.

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The Apex Court in the case of Mohammed

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Siddique and another –v- National Insurance Company Ltd and others (AIR 2020 SC 520) has

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

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Since the Tribunal after considering the materials available on record and evidence of the parties has given a clear finding that the driver of the car alone was negligent in causing the accident and in view of the judgment of the Apex Court in the case of Mohammed Siddique (supra), I am of the opinion that the finding of the Tribunal that rider of the motorcycle has also contributed to the accident to the extent of 10% is error apparent on the face of the record. To that effect, the finding of the Tribunal is set aside. It is

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held that the driver of the car alone is negligent in causing the accident.

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RE: QUANTUM OF COMPENSATION

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IN MFA 4068/2019 (MVC 228/2017) (Claimant-Mr.Lokesh)

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The claimant claims that he was earning Rs.15,000/- 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 accident taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained fracture of both bones in right leg middle 1/3^rd . The doctor in his evidence has stated that the claimant has suffered permanent disability of 23.71%. Therefore, taking into consideration the

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deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 10%. The claimant is aged about 31 years at the time of the accident and multiplier applicable to his age group is ‘16’. Thus, the claimant is entitled for compensation of Rs.182,400/(Rs.9,5001216*10%) 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 4 months. Therefore, the claimant is entitled for compensation of Rs.38,000/- (Rs.9,500*4 months) under the head ‘loss of income during laid up period’.

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The claimant was treated as inpatient for more than 15 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

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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.30,000/- to Rs.60,000/- and under the head of 'pain and sufferings' from Rs.30,000/- to Rs.60,000/-.

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Considering the nature of injuries, the 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	30,000	60,000
Medical and incidental expenses	50,000	50,000
Loss of income during laid up period	31,500	38,000
Loss of amenities	30,000	60,000
Loss of future income	172,800	182,400
Total	314,300	390,400

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IN MFA 4096/2019 (MVC 229/2017) (Claimant-Mr.Kumara)

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The claimant claims that he was earning

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Rs.15,000/- 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 accident taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained fracture of right shaft femur and fracture of 2^nd , 3^rd and 4^th metatarsal bone. The doctor in his evidence has stated that the claimant has suffered permanent disability of 22%. 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 9%. The claimant is aged about 40 years at the time of the

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accident and multiplier applicable to his age group is ‘15’. Thus, the claimant is entitled for compensation of Rs.153,900/- (Rs.9,5001215*9%) on account of 'loss of future income'.

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The claimant was treated as inpatient for more than 13 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

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amenities' from Rs.30,000/- to Rs.60,000/-, under the head of 'pain and sufferings' from Rs.30,000/- to Rs.60,000/- and under the head of 'future medical expenses' from Rs.15,000/- to Rs.30,000/-

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Considering the nature of injuries, the 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	30,000	60,000
Medical and incidental expenses	25,000	25,000
Loss of income during	30,900	38,000
laid up period
Loss of amenities	30,000	60,000
Loss of future income	145,800	153,900
Future medical expenses	15,000	30,000
Total	276,700	366,900

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IN MFA 4059/2019 (MVC 230/2017) (Claimant-Shreenivasa Murthy)

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As per wound certificate, the claimant has sustained head injury and other injuries. He was treated as inpatient for a period of 12 days. He has produced discharge summary and medical bills at Ex.P-17 to 20. He has produced medical bills worth Rs.3,477/-. He has not examined the doctor regarding disability suffered by him. Therefore, considering the evidence of the claimant and nature of injuries mentioned in the wound certificate, I am inclined to award compensation of Rs.40,000/- in addition to compensation of Rs.60,000/- awarded by the Tribunal. Therefore, the claimant is entitled for total compensation of Rs.100,000/-.

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

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The claimant in MVC 228/2017 is entitled to a

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total compensation of Rs.390,400/- .

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The claimant in MVC 229/2017 is entitled to a

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total compensation of Rs.366,900/- .

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The claimant in MVC 230/2017 is entitled to a

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total compensation of Rs.100,000/- .

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Since this court has modified the finding of the Tribunal regarding negligence and held that the driver of the offending vehicle alone is negligent in causing the accident, the Insurance Company is directed to deposit the entire compensation amount in all the three cases along with interest @ 9% p.a. (enhanced amount shall carry interest at 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 date of receipt of copy of this judgment.

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The claimant in all the three cases are not

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entitled for interest for the delayed period of 185 days

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in filing the appeals.

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Sd/JUDGE

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