Allowed

Sri. Shivashankara @ Shankara v. Sri. Shanavaskeloth

Karnataka HC23 Nov 2022MFA/5973/2016

Case brief

AI extract

What is this about?

Appeal filed against the Motor Accident Claims Tribunal awarding Rs. 95,920 compensation. The High Court upheld 20% contributory negligence but enhanced compensation by Rs. 1,11,360 due to higher notional income and lack of structured calculation for future loss of income, with interest directed.

What did the court decide?

Enhanced compensation of Rs. 1,11,360 awarded with interest at 6% p.a.; impugned award modified.

Sri. Shivashankara @ Shankara Vs Sri. Shanavaskeloth — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 5973 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 5973 OF 2016 (MV-I)

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BETWEEN:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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SRI SHIVASHANKARA @ SHANKARA,

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S/O CHIKKAIAH,

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AGED ABOUT 41 YEARS,

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R/AT:RAGHAVAPURA VILLAGE, BEGUR HOBLI, GUNDLUPET TALUK, CHAMARAJANAGAR DISTRICT. CHAMARAJANAGAR - 571 109.

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…APPELLANT

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(BY SRI. H V BHANU PRAKASH, ADVOCATE)

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AND:

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SRI.SHANAVASKELOTH, S/O.SEETHI KELOTH, AGED ABOUT 40 YEARS, R/AT:KELOTH HOUSE, PURAKKAD POST, MELADI VIA, CALICUT, KERALA STATE - 673 522 OWNER OF MARUTHI SWIFT CAR BEARING REGISTRATION NO.KL-56-G-6363.

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MFA No. 5973 of 2016

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THE DIVISIONAL MANAGER M/S. NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE 3RD FLOOR, RAMASWAMY CIRCLE MYSORE - 570 024.

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...RESPONDENTS

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(BY SRI SHIVARAJ PATIL, ADVOCATE FOR R-2; NOTICE TO R1 IS DISPENSED WITH V/O DATED 05.08.2021)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.05.2016 PASSED IN MVC NO.153/2015 ON THE FILE OF PRL. DISTRICT JUDGE & MACT, CHAMARAJANAGAR PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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By consent of the learned counsel for both the parties, the matter is taken up for final disposal though it is listed for admission.

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Aggrieved by the judgment and award dated 03 . 05.2016 passed in MVC No.153/2015 by the learned Principal District Judge and MACT, Chamarajanagar, partly allowing the petition awarding compensation of Rs.95,920/-, after deducting 20% towards

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MFA No. 5973 of 2016

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contributory negligence, petitioner/appellant has approached this Court in appeal by urging various grounds.

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The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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The brief facts are as below:

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That on 27.01.2015, at about 7.00 pm, near Raghavapura village, on Ooty-Mysore road, when petitioner was coming on his motorcycle bearing registration No.KA-10J-9457 from Raghavapura towards Begur, a Maruthi Swift Car bearing registration No.KL-56-G-6363 came from backside in rash and negligent manner and dashed against the motorcycle of the petitioner and as a result, petitioner fell down and sustained grievous injuries. He was immediately taken to Government Hospital, Gundlupet for treatment and thereafter he was shifted to K.R.Hospital Mysore for further treatment. Petitioner took treatment as inpatient from 28.01.2015 to 12.02.2015 and he had undergone surgery with ORIF (Open Reduction Internal Fixation) with rod and screws. The petitioner has spent Rs.1,00,000/-

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MFA No. 5973 of 2016

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towards medical expenses, RS.50,000/- towards food and extra nourishment, etc.

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Further it is case of the petitioner that prior to the accident, he was hale and healthy and he was doing mason work and also doing milk vending business and earning Rs.10,000/- per month. Due to accidental injuries, petitioner has sustained permanent disability. The accident occurred solely due to rash and negligent driving on the part of the Maruthi Swift Car bearing registration No.KL-56-G6363. Therefore, petitioner sought for compensation of Rs.20,95,000/- with interest @ 12% from the respondents .

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On issuance of notice by the Tribunal, 1st respondent did not appear inspite of service of notice and therefore he was placed ex-parte. The 2nd respondent-Insurance Company appeared through its counsel and filed objections denying all the contents of the petition. It denies that the said Swift car was insured with it. It further submits that respondent No.1 was not having driving licence to drive the Maruthi Swift Car and that the accident occurred in between two vehicles and rider, owner and insurer of the motorcycle have not been made as parties to the petition. It

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MFA No. 5973 of 2016

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also submits that there is a delay of 1 day in lodging the complaint

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and it has not been explained. It denies the rash and negligent driving on the part of driver of Swift car. It also submits that respondent No.1 has not complied with the mandatory provisions of Motor Vehicle Act i.e., Section 158(6) and he has not intimated the fact of incident within 30 days. On these grounds, 2nd respondent sought to dismiss the petition.

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On the basis of the above pleadings and contentions of both the parties, the Tribunal has framed necessary issues.

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Before the Tribunal, petitioner got examined himself as PW1 and got marked Exs.P1 to P12 and examined Dr. P. Puttaswamy through court commissioner and marked Ex.C1 to 4. 2nd Respondent did not adduce or produce any oral or documentary evidence.

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On hearing both the sides and considering the oral and documentary evidence available, the Tribunal answered the issue Nos.1 and 2 in the affirmative, Issue No.3 in the negative and allowed the petition in part and awarded a sum of Rs.95,920/-

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MFA No. 5973 of 2016

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under different heads as under after deducting 20% towards

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contributory negligence:

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Towards injury Pain and sufferings	Rs. 30,000/-
TowardsMedical Expenses	Rs. 14,900/-
Towards food, extra nourishment and medicalattendant	Rs. 5,000/-
Towards conveyance	Rs. 2,000/-
Towardsloss of income during treatment	Rs. 28,000/-
Towards disability andloss of future earning	Rs. 40,000/-
Total	Rs.1,19,900/-
Deduct 20% negligence	Rs. 23,980/-
Net amount	Rs. 95,920/-

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Aggrieved by the said judgment and award, the petitioner is before this Court seeking enhancement.

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Respondent No.2- insurance company has appeared in pursuant to the notice issued by this Court and notice to respondent No.1 is dispensed with.

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Tribunal records have been secured and we have heard learned counsel Sri. H.V. Bhanuprakash, appearing for the appellant and the learned counsel Sri Shivaraj Patil, appearing for the Insurance Company-respondent No.2.

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The learned counsel appearing for the appellant/petitioner urged before this Court that attribution of

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MFA No. 5973 of 2016

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20% of the negligence to the petitioner and the quantum of the compensation awarded by the Tribunal are erroneous. Therefore, we have perused the records in the light of the submissions made by learned counsel for the appellant.

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The records reveal that as per the spot mahazar the road was about 25 feet wide and with a mud margin of 5 feet on either side and the accident happened at a distance of 4 feet from zeebra crossing near he bus stop of Raghavapura II stage. The IMV report at Ex.P4 also show that there is front right indicator and front right side rubbing mark were seen on the motor cycle. Similarly, there were damages to the front left side of the offending vehicle that is swift car bearing No.KA.56.C. 6363. The Tribunal considering the fact that the petitioner was unable to produce the driving licence to drive a two wheeler attributed 20% of the negligence to him in pursuance to a decision of the Jharkhand High Court in the case of Ramzan Ansari and another Vs. Smt Kavitha Singh and others¹ . It is evident from the records that the accident occurred near the zeebra crossing and the petitioner contends that the car came from behind and dashed to him. It is evident that the right side of the

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1 2009(3) TAC 65 (JHR)

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MFA No. 5973 of 2016

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motor cycle was damaged and left front of the car was damaged in

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the accident. This suggests that in zeebra crossing the petitioner abruptly stopped the vehicle forcing the car driver to apply the brakes and in such maneuvering, the car brushed the motor cycle. Therefore, this evidence coupled with the non production of the driving licence by the petitioner definitely goes to show that there was negligence on the part of the petitioner also. Therefore, we are unable to accept the contention that there was no such contributory negligence on the part of the petitioner. The Tribunal has rightly considered this aspect and held that petitioner had contributed 20% of negligence towards the accident.

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The petitioner contends that he was a mason and milk vendor by profession and was earning Rs.500/- per day from mason work and Rs.10,000/- per month from milk vending. The Tribunal observes that cogent evidence has not been produced by the petitioner regarding milk vending and therefor,e notional income has to be considered to assess his income. As such, it held that the notional income of the petitioner is Rs.7,000/- per month. As per the guidelines issued by the Karnataka State Legal Services Authority in connection with settlement of disputes before the Loka

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MFA No. 5973 of 2016

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Adalaths, which is arrived by broadly considering the wages fixed under the Minimum Wages Act and other parameters, monthly income of Rs.9,000/- is prescribed for the age of 50 years during the year 2015.

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The petitioner had sustained fracture of right tibia and the evidence of PW2, who had treated him, discloses that there is permanent disability to the extent of 30% of the limb to the petitioner. Since PW2 is a treated doctor, there was no reason to disbelieve his evidence. The Tribunal came to the conclusion that there is disability of 10% and accordingly, without applying the multiplier, granted a sum of Rs.40,000/- as a global compensation. When the Tribunal holds that there is a disability of 10%, it was incumbent upon it to apply the same by adopting structured formulae.

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With these aspects in mind, the compensation is reassessed and calculated under different heads as below:

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(a) So far as the loss of future income is concerned, the fracture of right tibia has inflicted a permanent disability of

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10 -

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MFA No. 5973 of 2016

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10% and therefore, the loss of future income is calculated as Rs.9,000/- x 12 x 14 x 10% = 1,51,200/-.

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(b) In view of adoption of the monthly notional income of Rs.9,000/-, the compensation under the head of loss of income during the laid up period for a period of four months comes to Rs.36,000/-.

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(c) The Tribunal has not awarded any compensation under the head of loss of amenities in life. Fracture of right tibia will definitely cause impairment in his day today life and therefore, a sum of Rs.20,000/- has to be awarded under this head.

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We do not find any reason to interfere with the compensation awarded under the heads of pain and suffering, medical expenses, food and nourishment and conveyance expenses by the Tribunal.

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Hence, the petitioner is entitled for a compensation as below:

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MFA No. 5973 of 2016

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Towards injury Pain and sufferings	Rs. 30,000/-
Towards Medical Expenses	Rs. 14,900/-
Towards food, extra nourishment and medical attendant	Rs. 5,000/-
Towards conveyance	Rs. 2,000/-
Towardsloss of income during treatment	Rs.36,000/-
Towards disability and loss of future earning	Rs. 1,51,200/-
Loss of amenities	Rs. 20,000/-
Total	Rs.2,59,100/-
Less: 20% towards negligence	RS. 51,820/- RS.2,07,280/-
Less: Awarded by Tribunal	Rs. 95,920/-
Enhancement	RS.1,11,360/-

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Thus, we propose to award the compensation by a sum of Rs.1,11,360/- in addition to what has been awarded by the Tribunal. Hence, we pass the following:

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ORDER

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(i) Appeal is allowed in part

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(ii) The impugned judgment and award dated

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03.05.2016 passed in MVC No.153/2015 by the Tribunal is modified by enhancing the compensation of Rs.1,11,360/- together with interest at 6% p.a. from the date of petition till realization.

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MFA No. 5973 of 2016

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(iii) Insurance company is directed to deposit the

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compensation amount together with interest within a period of 4 weeks from the date of receipt of the copy of this order.

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(iv) The conditions of apportionment and deposit as

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ordered by the Tribunal remain unaltered.

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Sd/JUDGE

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Sd/JUDGE

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tsn* List No.: 2 Sl No.: 18

Sri. Shivashankara @ Shankara v. Sri. Shanavaskeloth

Case brief

What is this about?

What did the court decide?

Sri. Shivashankara @ Shankara v. Sri. Shanavaskeloth

Case brief

What is this about?

What did the court decide?

What the court decided

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