Partly allowed

Nandisha G M v. the Managing Director

Karnataka HC2 Nov 2022MFA/5284/2014

Case brief

AI extract

What is this about?

The High Court modified a Motor Accident Claims Tribunal award, classifying the incident as composite negligence rather than contributory negligence. The Court enhanced compensation from ₹6.08 lakh to ₹15.20 lakh by assessing functional disability at 35% and awarding future earning capacity losses. It directed the insurer to pay 70% immediately and recover the remaining 30% from the absent owner o

What did the court decide?

Appellant entitled to additional compensation of ₹9.12 lakh and interest; impugned award modified to total ₹15.20 lakh; Respondent No.2 to pay 70% forthwith and recover 30% from absent owner.

Nandisha G M Vs the Managing Director — Constitutional and Fundamental Rights | Karnataka HC (2022)

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MFA No. 5284 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A. NO.5284/2014 (MV-I)

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BETWEEN:

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NANDISHA G M

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S/O MARIGOWDA, AGED 29 YEARS, R/AT GANTAGOWDANAHALLY POST, KERAGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT-571436.

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...APPELLANT

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(BY SRI: PRAMOD R., ADVOCATE)

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AND

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Digitally signed by PAVITHRA B Location: High Court of Karnataka

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THE MANAGING DIRECTOR M/S M.K. AGROTECH PRIVATE LIMITED., BANGALORE MYSORE ROAD, NO.389, CAUVERY LAYOUT, SRIRANGAPATNA TOWN, MANDYA DISTRICT-571426.

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THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD., M.C.ROAD, MANDYA CITY-571436.

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…RESPONDENTS

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(BY SRI. JANARDHAN REDDY, ADVOCATE FOR R2 THROUGH VIDEO CONFERENCE, R1 NOTICE DISPENSED WITH V/O DATED 22-01-2015)

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MFA No. 5284 of 2014

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED15.03.2014 PASSED IN MVC NO.1256/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, & CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant–claimant, calling in question the judgment and award dated 15.03.2014, passed in M.V.C.No.1256/2012, on the file of the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Mandya, (hereinafter referred to as ‘the Tribunal’ for brevity) seeking enhancement of the compensation, as well as the ratio of negligence attributed on the claimant at 30%.

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Brief facts:

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On 08.11.2011, the claimant was traveling in a

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milk tanker bearing registration No.KA.05/AC 2005, for the

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MFA No. 5284 of 2014

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purpose of bringing the milk from Seethal Centre, situated near Byrapatna, Ramanagara taluk. At that time, one Vivek was driving the said milk tanker. At about 7.30 p.m., on B.M. Road near Ijur signgal Circle Ramanagar town, the claimant got down from the milk tanker to check mechanical condition of lorry and again when he was boarding, at that time the driver of One Eicher Canter bearing No.KA.11/7030 came in a rash and negligent manner from Bangalore side and rubbed the left side of the door of the milk lorry and on account of this, the claimant fell down from the milk lorry and sustained injuries to his hands, waist and nose and other parts of the body.

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Hence, a claim petition was filed by the appellantclaimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of

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MFA No. 5284 of 2014

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Rs.4,05,036/-, along with interest at 9% per annum, from

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the date of petition till the date of realisation. The Tribunal held respondent No.2 therein, liable to pay the compensation.

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4. Heard arguments of the learned counsel for the

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appellant-claimant and the learned counsel for respondent No.2 – insurance company and perused the materials on

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record.

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The compensation awarded by the Tribunal is

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as follows:

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Pain and Suffering	:	Rs.	50,000/-
Medical Bills	:	Rs.	2,32,030/-
Disability	:	Rs.	3,06,000/-
Other Expenses	:	Rs.	20,000/-
TOTAL	:	Rs.	6,08,030/-

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MFA No. 5284 of 2014

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It is the case of the claimant that it is

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composite negligence between two vehicles, but not contributory negligence. The Tribunal while considering the case of rash and negligence aspect had held that the claimant had contributed 30% of negligence. That the driver of the milk lorry bearing registration No.KA.05/AC 2005, had suddenly stopped the vehicle on the middle of the road and instructed the claimant to check the battery and when the claimant had got down from the cabin of the tanker, at that moment One Eicher Canter bearing No.KA.11/7030 hit the claimant. Therefore, submitted that it is the case of composite negligence between the drivers

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of two vehicles and not contributory negligence so as to fasten the negligence on the part of the claimant. Hence, prays for modification of the finding in this regard and also prays for enhancement of the compensation.

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The learned counsel for the respondent – insurance company of Eicher Canter bearing

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MFA No. 5284 of 2014

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No.KA.11/7030 has not disputed this fact of composite negligence and not of contributory negligence. Further submitted the quantum of compensation granted is correct.

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While considering the facts and circumstances

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and appreciating the evidence on record in order to ascertain while the present case is composite or contributory negligence case, it is seen from the facts that the claimant is stated to be a cleaner in the milk tanker

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lorry. On 18.11.2011, the claimant was traveling in the milk tanker for bringing milk from Seethal Centre, situated near Byrapatna, Ramanagara Taluk, at that time driver by name Vivek was driving the said milk tanker and at around 7.30 p.m., on BM Road near Ijur signal circle Ramanagar town, the driver Vivek who was driving the milk tanker had stopped milk tanker lorry, since there was a problem occurred to the battery of the milk tanker. Therefore, when the said lorry was parked on the side of the road the

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MFA No. 5284 of 2014

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claimant was constrained to get down from the milk tanker and check the battery and while boarding the milk tanker, Eicher Canter bearing No.KA.11/7030 came from Bangalore side and rubbed the left side of the door of the milk tanker. As a result, the claimant while boarding the milk tanker fell down from the milk tanker and sustained injuries to his hands, waist and nose and other parts of the body.

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It is not disputed fact that the milk tanker was on the middle of the road and if there is any problem to the battery, then the driver of the milk tanker ought to have taken the lorry to the left side of the road, but suddenly stopped the tanker on the middle of the road. Since the driver of the milk tanker had stopped the vehicle on the middle of the road. Therefore, the claimant was constrained to get down from the cabin of the milk tanker in order to check the battery and after checking and

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MFA No. 5284 of 2014

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operating the milk tanker and at that moment the tanker had dashed the claimant.

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Therefore, under these circumstances it cannot

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be said that the claimant had contributed negligence, because of the fact that the driver of the tanker stopped the lorry on the middle of the road and the claimant was constrained to get down from the milk tanker and accident was caused as above discussed. Therefore, the Tribunal is in error in holding that the claimant has contributed negligence. The Tribunal had committed error in not appreciating the material evidence on record correctly. Under these circumstances, the driver of the milk tanker had parked the lorry on the middle of the road this aspect

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is not considered by the Tribunal. If the driver of the milk tanker had not stopped the milk tanker on the middle of the road, the accident could have been avoided. Therefore, in this regard while appreciating the material on record as above discussed the accident was caused because of the

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MFA No. 5284 of 2014

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negligence of two drivers of the vehicles above stated. The claimant simply got down from the milk tanker to check the battery of the tanker. The driver of the milk tanker ought to have parked the milk tanker on the left side of the road, but without doing so under these circumstances the mishap was caused. Therefore, necessarily it is a case of composite negligence but not contributory negligence.

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The Tribunal had fastened the contributory

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negligence at 30% on the claimant which is not correct since the milk tanker was stopped on the middle of the road and the time was evening 7.30 p.m. during the month of November. Therefore, there was dark after sunset, the driver of the Eicher Canter bearing No.KA.11/7030 ought to have driven the lorry in a careful manner upon seeing the lorry parked, he could have avoided the accident if some caution and carefulness was taken. Hence, it can be held that the driver of the Eicher Canter bearing No.KA.11/7030 is found to be 70% rash

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MFA No. 5284 of 2014

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and negligence as held by the Tribunal remaining 30% is to be attributed on the driver of the milk tanker bearing registration No.KA.05/AC 2005. Thus, in this way, it is a case of composite negligence. In this regard, the finding of

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the Tribunal that it is contributory negligence and contributed 30% on the part of the claimant is liable to be set-aside.

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The composite negligence is to be attributed at

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70% on the driver of the Eicher Canter bearing No.KA.11/7030. But the owner and the driver of the milk tanker bearing registration No.KA.05/AC 2005 are not made as parties in the proceedings. However, all these aspect in order to ascertain the ratio of composite negligence between two lorries if the case is to be remanded once again it causes delay in getting compensation to the claimant. Since the bigger portion of negligence is on the insurance company of Eicher Canter bearing No.KA.11/7030, who are insurer and owner and

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MFA No. 5284 of 2014

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parties in the case. Even though the owner and insurer of the milk tanker bearing registration No.KA.05/AC 2005 are not before the Court, but considering over all facts and circumstance and appreciating the evidence on record the

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lesser negligence is attributed on the part of the driver of the milk tanker.

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The Hon’ble Supreme Court in the case of KHENYEI vs. NEW INDIA ASSURANCE COMPANY LIMITED¹ , has held regarding composite negligence at para – 22 as follows:

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“22. What emerges from the aforesaid discussion is as follows:

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22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.

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1 (2015) 9 SCC 273

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MFA No. 5284 of 2014

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22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3. In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.

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22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of

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MFA No. 5284 of 2014

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other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.”

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Even though at para – 22.4, the Hon’ble Apex Court has held that in the absence of impleadment of other joint tortfeasers, the extent of proportion of rash and negligence of the drivers of two vehicles cannot be determined. But in view of the fact that even though only to that aspect of determining the proportion of rash and negligence, the matter is remanded to the Tribunal, then

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the Tribunal will also would have to appreciate the evidence already brought on record. Therefore where bigger rash and negligence aspect is attributed on the Eicher Canter bearing No.KA.11/7030, therefore the small portion of the negligence is attributed on the part of the driver of the milk tanker bearing registration No.KA.05/AC 2005 as above stated. Therefore, the owner and insurer of

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MFA No. 5284 of 2014

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Eicher Canter bearing No.KA.11/7030 are directed to pay the entire compensation to be determined by this Court to

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the claimant and then recover 30% from the owner and insurer of the milk tanker bearing registration No.KA.05/AC 2005, in accordance with law.

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REGARDING QUANTUM:

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Exhibit-P6 is the Wound Certificate and the

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doctor has given evidence as CW-1 and CW-2. It is proved that the claimant had suffered the following injuries:

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“i) Fracture (R) proximal humerus, ii) Fracture sup and inframi B/L, iii) Asis fracture (L),”

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The above said injuries are grievous in nature.

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Therefore, the claimant had suffered fracture of right shoulder, fracture of waist, injuries of face. On account of injuries to waist, the urinary track is blocked and surgery was performed and separate pipe was inserted to pass

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MFA No. 5284 of 2014

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urine. Therefore, the claimant is not able to pass urine as normal person and the claimant is constrained to carry separate urinary pipe along with bag. Wherefore, considering these plight of the claimant, the compensation awarded by the Tribunal under the head ‘Injuries, Pain And Suffering’ at Rs.50,000/- is on lesser side and the same is enhanced to Rs.80,000/-.

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The compensation awarded at Rs.2,32,030/-

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towards ‘ Medical Bills’ is as per actual bills and receipts and the same is kept in tact.

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The Tribunal has determined compensation towards ‘Loss Of Earning Capacity due to Disability’ at Rs.3,06,000/- by considering the income of the claimant as Rs.10,000/- per month, which is on lesser side. As per the salary certificate produced, the claimant was earning a sum of Rs.10,500/- per month. Hence, the same is taken

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MFA No. 5284 of 2014

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monthly income of the claimant. The Tribunal had held that the claimant had suffered 15% disability to the whole body which is found to be on lesser side. CW-1 and CW-2 are Doctors they have stated that the claimant had suffered fracture of right shoulder and fracture of waist and also suffered injuries to face and due to the fracture to the waist the claimant had suffered damage to urinary bladder. Therefore, now the claimant has undergone surgery for inserting the separate pipe to pass urine. Therefore, the claimant is not able to pass urine as normal person. The claimant has to always carry tube along with pipe and urinary bag with him whenever he has to move around and that causes much inconvenience. The claimant is not able to do any other work for his livelihood. Therefore under these circumstances the percentage of disability held by the Tribunal 15% is very minimal. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj

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MFA No. 5284 of 2014

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Kumar Vs. Ajay Kumar and Another² Therefore,

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considering the principles laid down by the Hon’ble Supreme Court stated supra, the claimant being a cleaner, it is just and proper to hold the functional disability at 35% affecting the earning capacity of the claimant and further to an extent of 40% of income is to be added towards ‘ Loss Of Future Prospects In Life’ as per judgment of this Court in the case of New India Assurance

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Company Vs. Abdul S/o Mehaboob Tahasildar³ and percentage of additional income is added as per the judgment of the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi⁴ . The claimant was aged 27 years at the time of the accident, therefore the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport

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2 (2011) 1 SCC 343

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3 MFA.NO.103807/2016 & Connected Matters, DD.27.05.2022

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4 (2017) 16 SCC 680

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MFA No. 5284 of 2014

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Corpn And Another⁵ is ‘17’. Therefore, the compensation

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under the head ‘ Loss Of Future Earning Capacity Due

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To Disability’ is reassessed and quantified:

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Rs.10,500 + 4,200 (40% of 10,500) x 35% (disability) x 17 (multiplier) x 12 =

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Rs.10,49,580/-

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Rounded off to Rs.10,50,000/-

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In view of the accidental injuries, the claimant would have taken rest for atleast for a period of SIX months. Therefore, by taking income at Rs.10,500/- per month and calculating the laid up period for SIX months, the claimant is entitled for a sum of Rs.63,000/(Rs.10,500 x 6 months) , under the head ‘Loss Of Earning During Laid Up Period’ .

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The Tribunal has not awarded compensation

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under the head ‘Loss Of Amenities And Loss Of Marital

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5 AIR 2009 SC 3104

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MFA No. 5284 of 2014

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Prospects’ and therefore awarded compensation of

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Rs.75,000/- under these heads.

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The compensation of Rs.20,000/- awarded

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under the head Other Expenses is kept in tact.

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Therefore, in modification of the award of the

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Tribunal, the appellant-claimant is entitled to the

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following compensation:

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Pain and Suffering : Rs. 80,000/Medical Expenses : Rs. 2,32,030/Loss Of Future Earning Capacity : Rs. 10,50,000/Due To Disability (Rs.10,500 x 40% x 35% (disability) x 17 x 12) Loss Of Earning During Laid Up : Rs. 63,000/Period (Rs.10,500 x 6 months) Loss Of Amenities And Loss Of : Rs. 75,000/Marital Prospects Other Expenses : Rs. 20,000/- TOTAL : Rs. 15,20,030/-

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MFA No. 5284 of 2014

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Therefore, the appellant-claimant is entitled for compensation of Rs.15,20,030/- as against

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Rs.6,08,030/-. The appellant – claimant is entitled for an additional compensation of Rs.9,12,000/-

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(Rs.15,20,030 – Rs.6,08,030/-) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Respondent No.2 - Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.

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As held above, the compensation determined at 70:30 between driver of Eicher Canter bearing No.KA.11/7030 and driver of milk tanker bearing registration No.KA.05/AC 2005, respectively, both the owner and insurer of the respective vehicles shall pay the compensation according to the ratio held above. In case of existing insurance policy for the vehicles, the Respondent

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MFA No. 5284 of 2014

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No.2 - insurer shall pay the compensation to the claimant.

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The owner and insurer of milk tanker bearing registration No.KA.05/AC 2005 are not parties in the present proceedings, therefore the owner and insurer of Eicher Canter bearing No.KA.11/7030 shall pay the entire determined compensation to the claimant and shall thereafter recover 30% of the above determined compensation from the owner and insurer of milk tanker bearing registration No.KA.05/AC 2005 in a separate execution proceedings. Since the claimant was working as employee in a milk tanker bearing registration No.KA.05/AC 2005 he shall produce necessary insurance policy and other documents and particulars to the owner and insurer of Eicher Canter bearing No.KA.11/7030 and the owner and insurer of Eicher Canter bearing No.KA.11/7030 shall pay the compensation to the claimant after receipt of necessary insurance policy and documents pertaining to the milk tanker bearing registration No.KA.05/AC 2005. The owner and insurer of Eicher

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MFA No. 5284 of 2014

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Canter bearing No.KA.11/7030 shall pay 70% of the compensation to the claimant within a period of Eight Weeks from today and remaining 30% of amount shall be released after receipt of the insurance particulars and other relevant documents from the claimants as above stated.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part . ii. The impugned judgment and award 15.03.2014, passed in M.V.C.No.1256/2012, on

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the file of the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Mandya, is modified to the aforesaid extent.

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iii. The appellant – claimant is entitled for an additional compensation of Rs. 9,12,000/(Rs.15,20,030 – Rs.6,08,030/-) along with interest at 6% per annum from the date of

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MFA No. 5284 of 2014

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filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the appellant-claimant is not entitled for interest for the delayed period of 36 days, in filing the appeal.

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iv. Respondent No.2 – insurance company shall pay entire compensation to the appellant/claimant and recover 30% of amount from owner and insurer of Milk Tanker No.KA05-AC-2005.

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v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vi. Draw award accordingly. vii. No order as to costs.

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Sd/JUDGE

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Nandisha G M v. the Managing Director

Case brief

What is this about?

What did the court decide?

Nandisha G M v. the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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