Partly allowed

P Manu v. Mohd Mahamood Ali Khan

Karnataka HC13 Oct 2022MFA/703/2015

Case brief

AI extract

What is this about?

High Court modified an award, increasing contributory negligence from 10% to 20% for a motorcycle rider and enhanced total compensation from Rs.4,00,500/- to Rs.5,90,200/- by recalculating future loss of income while reducing pain and suffering.

What did the court decide?

Compensation enhanced to Rs.5,90,200/- with 20% contributory negligence on the rider; liability apportioned 80% to insurer and 20% to motorcycle owner.

P Manu Vs Mohd Mahamood Ali Khan — Medical Negligence | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.154/2015 (MV-I) C/W M.F.A.NO.703/2015 (MV-I)

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M.F.A.NO.154/2015:

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BETWEEN:

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M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., E/18, EPIP, RIICO, INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTAN-302022. REPTD. BY ITS MANAGER, REPRESENTED BY ITS M/S SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.302, 3^RD FLOOR, S&S CORNER BUILDING, OPP.BOWRING AND CURZON HOSPITAL, SHIVAJINAGAR, BANGALORE-560 001. REPTD. BY ITS ASST. MANAGER.

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...APPELLANT

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(BY SRI B.C. SHIVANNE GOWDA, ADVOCATE)

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AND:

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P. MANU, S/O PUTTASWAMY, NOW AGED ABOUT 27 YEARS, R/O MAREGOWDANADODDI, IGGALUR POST, CHANNAPATNA TALUK, RAMANAGARA. PRESENTLY RESIDENT AT C/O T. PAPANNA, NO.5/91, 14^TH MAIN ROAD,

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MARUTHINAGARA, NEAR BALAJI PETROL BUNK, 1^ST STAGE, NAGARABHAVI, CHANDRA LAYOUT, BANGALORE-72.

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MOHD. MAHAMOOD ALI KHAN, S/O MOHD. SABEER KHAN, MAJOR, R/AT NO.19-4-281/B/76, JAHAUMA, S.G. NAGAR, HYDERABAD, A.P.STATE-516 001.

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C. ANAND, S/O CHINNAPPA, MAJOR, R/AT NO.18, ANNAIAH STREET, NEAR RAILWAY GATE, OLD BYAPPANAHALLI, MS NAGAR, BANGALORE-33.

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...RESPONDENTS

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(BY SRI T.C. SATHISH KUMAR, ADVOCATE FOR R1, SMT. RADHA Y, ADVOCATE FOR R3, R2 IS SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2014 PASSED IN MVC NO.7209/2010 ON THE FILE OF THE 8^TH ADDITIONAL SMALL CAUSES JUDGE, 33^RD ACMM, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.4,00,500/- WITH INTEREST (EXCLUDING ON THE FUTURE MEDICAL EXPENSES OF RS.20,000/@ 8% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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M.F.A.NO.703/2015:

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BETWEEN:

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P. MANU, S/O PUTTASWAMY, AGED ABOUT 27 YEARS, HINDU, R/O MAREGOWDANADODDI,

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IGGALUR POST, CHANNAPATNA TALUK, RAMANAGARA DISTRICT.

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PRESENTLY R/A C/O T. PAPANNA, NO.5/91, 14^TH MAIN ROAD, MARUTHINAGAR, NEAR BALAJI PETROL BUNK, 1^ST STAGE, NAGARABHAVI, CHANDRA LAYOUT, BANGALORE-72. ...APPELLANT

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(BY SRI T.C. SATHISHKUMAR, ADVOCATE)

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AND: 1. MOHD MAHAMOOD ALI KHAN, S/O MOHD SABEER KHAN, MUSLIM, MAJOR, R/A NO.19-4-281/B/76, JAHANUMA, SG NAGAR, HYDERABAD ANDHRA PRADESH STATE-500001. 2. THE BRANCH MANAGER, SRIRAM GENERAL INSURANCE CO. LTD., E/8, EPIP, RICO INDUSTRIAL AREA SITAPURA, JAIPUR, RAJASTHAN-302022. 3. C. ANAND, S/O CHINNAPPA, HINDU, MAJOR, R/A NO.18, ANNAIAH STREET, NEAR RAILWAY GATE, OLD BYAPPANAHALLI, M.S. NAGAR, BANGALORE-33. ...RESPONDENTS (BY SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R2, SMT. RADHA Y, ADVOCATE FOR R3)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2014 PASSED IN MVC NO.7209/2010 ON THE FILE OF THE 8^TH ADDITIONAL SMALL CAUSES JUDGE, 33^RD ACMM, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the parties in both the appeals.

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M.F.A.No.154/2015 and M.F.A.No.703/2015 are filed

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by the Insurance Company and the claimant, respectively challenging the judgment and award dated 31.10.2014, passed in M.V.C.No.7209/2010, on the file of VIII Additional Small Causes Judge, 33^rd ACMM, Member, MACT, Bengaluru (‘the Tribunal’ for short).

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The factual matrix of the case of the claimant before

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the Tribunal is that on 12.09.2010 at about 7.00 a.m., when he was proceeding as a pillion rider on motorcycle bearing registration No.KA-03-EG-8346, at that time, the driver of the lorry unmindfully took ‘U’ turn and dashed against the motorcycle. As a result, the claimant has sustained the injuries

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of fracture of femur and also head injury. Immediately after the accident, he was taken to the hospital and he was an inpatient from 12.09.2010 to 04.10.2010 and spent more than Rs.3,25,000/- towards treatment and he was working as a cashier in Bar and Restaurant and earning Rs.8,000/- per month. In support of his claim, the claimant examined himself as P.W.1, examined one witness as P.W.2 and examined the doctor as P.W.3, who assessed the disability of 45% in respect of particular limb and 14% to the whole body. The Tribunal did not accept the same and did not award any compensation under the head loss of future income.

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The main contention of the appellant/Insurance Company in M.F.A.No.154/2015 is that the Tribunal committed an error in taking only 10% of contributory negligence on the part of the claimant when the driver of the lorry had almost taken the right turn and also he was on the edge of reaching the other end of the road and the rider of the motorcycle had driven the vehicle in a rash and negligent manner and hit the lorry which had already taken ‘U’ turn and proceeding in the right direction and also there was a provision to take ‘U’ turn and to

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proceed to the other side of the road. Hence, the Tribunal ought to have taken more contributory negligence on the part of the claimant. The learned counsel submits that the compensation awarded by the Tribunal is on the higher side and hence it requires interference of this Court.

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The learned counsel for the appellant/claimant in M.F.A.No.703/2015 would vehemently contend that the Tribunal committed an error in taking the contributory negligence of 10% on the part of the claimant. The claimant is a pillion rider and hence the question of taking the contributory negligence does not arise. The learned counsel would contend that no compensation is awarded under the head future loss of income. The compensation awarded is very meager and hence it requires interference of this Court.

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The learned counsel for the appellant Insurance Company brought to the notice of this Court that the claimants of the deceased rider have also filed the claim petition, wherein the Tribunal assessed the contributory negligence to the extent of 50%.

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7. Having heard the respective learned counsel and also

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on perusal of the material available on record, the points that arise for the consideration of this Court are:

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(i) Whether the Tribunal has committed an error in taking 10% of contributory negligence on the part of the claimant?

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(ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation as contended by the learned counsel for the appellant/claimant?

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(iii) What order?

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Point No.(i):

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Having heard the respective learned counsel and also

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on perusal of the material available on record, it is not in dispute that two vehicles are involved in the accident and it is also not in dispute that the rider of the motorcycle was proceeding in the main road and the driver of the lorry came from other end and took ‘U’ turn and he was proceeding towards other side of the road and at that time, the accident occurred. Having taken note of the spot sketch at Ex.P.3, it is clear that the driver of the lorry took the ‘U’ turn and was proceeding to the other side of the

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road where there was a provision to take ‘U’ turn to proceed to other end of the road. Under such circumstances, the rider of the motorcycle ought to have driven the vehicle in a slow manner. The accident occurred on account of negligence on the part of the rider of the motorcycle. The Tribunal has taken only 10% of negligence on the part of the claimant and the same is erroneous. The Tribunal lost sight of the fact that the driver of the lorry had already taken ‘U’ turn and was almost about to reach the other side of the road where provision is made and hence it is appropriate to take the contributory negligence to the extent of 20% on the part of the rider of the motorcycle. The very contention of the learned counsel for the claimant that the Tribunal ought not to have taken the contributory negligence on the part of the claimant is accepted as he is a pillion rider. Hence, the contributory negligence is taken to the extent of 20% on the part of the rider of the motorcycle.

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Point No.(ii):

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The other contention of the learned counsel for the claimant and the Insurance Company is that the compensation awarded by the Tribunal is on the lower side and higher side, respectively. On perusal of the material available on record, the

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injured was an inpatient for a period of 23 days and he has suffered fracture of femur and also head injury. The accident is of the year 2010 and the Tribunal awarded an amount of Rs.1,00,000/- under the head pain and suffering and the same is

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on the higher side and hence the same is reduced to Rs.50,000/- .

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10. The Tribunal awarded an amount of Rs.2,45,000/-

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under the head medical expenses including conveyance and the same is based on documentary evidence and hence, it does not require interference of this Court.

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The Tribunal awarded an amount of Rs.50,000/-

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under the head disability without considering the future loss of income. Hence, this Court has to reassess the compensation under the head loss of future income. Having considered the evidence and nature of injuries sustained by the claimant i.e., head injury and fracture of femur and the doctor who has been examined as P.W.3 assessed the disability of 45% in respect of particular limb and 1/3^rd of it comes to 15%. Having taken the disability of 15% to the whole body, this Court has to revisit and recalculate the future loss of income. It is claim of the claimant

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that he is working as cashier in Bar and Restaurant, but he has not produced any documentary proof and not examined the employer. It is an accident of the year 2010 and the notional income would be Rs.5,500/- per month and considering his age as 23 years, the relevant multiplier applicable is ‘18’. Hence, the claimant is entitled for an amount of Rs.1,78,200/- (Rs.5,500/x 12 x 18 x 15%) under the head loss of future income.

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The Tribunal awarded an amount of Rs.20,000/-

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under the head future medical expenses and having considered the nature of injuries, I do not find any reasons to interfere with the same.

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The Tribunal awarded an amount of Rs.30,000/-

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under the head loss of amenities and the same is just and reasonable having considered his age and the nature of injuries.

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The claimant was an inpatient for a period of 23 days, hence it is appropriate to award an amount of Rs.20,000/- under the head food and nourishment.

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The injured was an inpatient for a period of 23 days and he has suffered head injury and fracture of femur and hence

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it is appropriate to consider the loss of income during the laid up period for four months, since it requires some time to unite the fracture and for rest. Having considered the income of Rs.5,500/- per month and laid up period as four months, it comes to Rs.22,000/- (Rs.5,500/- x 4).

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The claimant in the claim petition has contended that he is a bachelor and his future life has been scattered and battered and there is diminishing of marriage prospects. Having taken note of the said aspect and considering his age as 23 years and disability is to the extent of 15%, it is appropriate to award an amount of Rs.25,000/- under the head loss of marriage prospects.

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In all, the claimant is entitled for compensation of Rs.5,90,200/- as against Rs.4,00,500/-.

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The owner of the motorcycle i.e., respondent No.3 is directed to pay 20% of the compensation.

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Point No.(iii):

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In view of the discussions made above, I pass the following:

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ORDER

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(i) Both the appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 31.10.2014, passed in M.V.C.No.7209/2010, is modified granting compensation of Rs.5,90,200/- as against Rs.4,00,500/- with interest at 6% per annum on the enhanced compensation from the date of petition till deposit and apportioning the contributory negligence to the extent of 20% on the part of the rider of the motorcycle.

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(iii) The Insurance Company is directed to pay 80% of the compensation amount and respondent No.3 is directed to pay remaining 20% of the compensation amount.

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(iv) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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P Manu v. Mohd Mahamood Ali Khan

Case brief

What is this about?

What did the court decide?

P Manu v. Mohd Mahamood Ali Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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