Partly allowed

Sri Bheemanna v. Sri Hullurappa H

Karnataka HC23 Mar 2022MFA/8621/2015

Case brief

AI extract

What is this about?

Motor Accident Appeal regarding compensation enhancement. Court upheld findings of 25% contributory negligence by appellant crossing road against signal but enhanced total compensation to Rs.3,55,000 before apportionment, setting overall award at Rs.2,66,250 with 6% interest.

What did the court decide?

Compensation enhanced to Rs.2,66,250 with interest at 6% p.a., payable by Respondent Insurance Company.

Sri Bheemanna Vs Sri Hullurappa H — 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 23^RD DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.8621/2015 (MV)

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BETWEEN:

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SRI BHEEMANNA S/O LATE BASANNA AGED ABOUT 41 YEARS, R/AT ALAKODAHALLI V & P DHURGHA (T), RAICHUR DIST. AND ALSO R/AT: C/O NARASAPPA BUILDING THUBHARAHALLI VARTHUR MAIN ROAD, BANGALORE.

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… APPELLANT

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(BY SRI. K.T.GURUDEVA PRASAD, ADVOCATE)

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AND:

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SRI HULLURAPPA H S/O MALLIYAPPA H NO.114, 3^RD CROSS, YAMALUR, BANGALORE - 560 037.

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THE NATIONAL INSURANCE CO. LTD NO.144, SHUBHARAM COMPLEX, 2^ND FLOOR, M.G.ROAD, BANGALORE - 560 001.

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...RESPONDENTS (BY SRI. S.D.N.PRASAD, ADVOCATE FOR R1; SRI. H.S.LINGARAJ, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYS THAT THIS HON’BLE COURT MAY KINDLY BE PLEASED TO CALL FOR RECORDS IN MVC NO.5598/2011 DATED 1-7-2014 ON THE FILE OF MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL & XVI ADDL. JUDGE, COURT OF SMALL CAUSES AT BANGALORE (SCCH-14) DATED AND SET ASIDE THE FINDING OF CONTRIBUTORY NEGLIGENCE HELD AGAINST THE APPELLANT AND ALSO ENHANCE THE COMPENSATION WITH INTEREST AGAINST THE RESPONDENTS IN THE INTEREST OF JUSTICE AND EQUITY.

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

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J U D G M E N T

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Though this appeal is posted for admission, with the consent of learned counsel for both the parties the same is taken up for final disposal.

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This is petitioner’s appeal seeking enhancement of compensation granted for the injury sustained by him in a motor vehicle accident, by setting aside the findings of the Tribunal regarding the contributory negligence attributed to him.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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It is the case of the petitioner that on 16.08.2011 at 08.00 p.m he was crossing the Varthur main road near Thubarahalli bus stop, Bengaluru. At that time rider of motor cycle No.KA-03/ER-2722 came in a rash or negligent manner and dashed against the petitioner. He sustained grievous injuries and admitted to hospital. Even after undergoing surgery and prolonged treatment he is not completely cured. He has sustained permanent partial disability affecting his earning capacity. He requires further treatment. A criminal case is registered against the rider of motor cycle in Cr.No.136/2011. Respondent No.1 being the owner and Respondent No.2 being the insurer are jointly and severally liable to pay the compensation.

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5. Before the Tribunal respondent No.1 has remained Ex-parte.

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Respondent No.2 appeared and filed written statement denying that the accident was due to rash or negligent driving by the rider of the motor cycle. The rider of the motor cycle was not holding a valid and effective driving license.

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The compensation claimed is highly exorbitant and baseless and has sought for dismissal of the petition.

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Based on the pleadings issues are framed by the

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Tribunal.

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In support of petitioner’s case 3 witnesses are examined as PWs-1 to 3 including the petitioner. Ex.P1 to P15 are marked. No oral or documentary evidence is led on behalf of respondent No.2.

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Though the Tribunal has partly allowed the petition granting compensation in a sum of Rs.2,63,000/- by holding that the rider of the motor cycle was responsible for the accident, it has held that petitioner has also contributed towards the accident by attempting to cross the road while green signal was on for the motorist. The details of the compensation granted by the Tribunal are as under:

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Heads	Amount in Rs.
Medical expenses	30,000
Future medical expenses	15,000
Food and diet	10,000
Conveyance, etc.,	10,000
Pain and sufferings	50,000
Loss of past income	15,000
Loss of future income	1,08,000
Loss of amenities	25,000
TOTAL	2,63,000

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Being aggrieved by the findings of the Tribunal that petitioner has contributed 25% of the negligence towards the accident, petitioner has come up with this appeal and also seeking enhancement of the compensation contending that the rider of the offending vehicle is not examined to prove the contributory negligence and this fact is not appreciated by the Tribunal. The compensation granted under various heads is on the lower side. The income of the petitioner ought to have been taken as at Rs.350/- per day. The disability of the whole body ought to have been taken at 18% instead of 12% as taken by the Tribunal. The interest rate should have been 12% instead of 9% as granted by the Tribunal.

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On the other hand, the learned counsel representing respondent No.2 has supported the impugned judgment and award and sought for dismissal of the appeal.

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12. Heard arguments and perused the records.

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In the light of the specific contentions raised by the appellant, it is necessary to examine whether the compensation granted is just and reasonable and whether the findings of the Tribunal that the petitioner has contributed 25% of the negligence to the accident is required to be re-examined.

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Admittedly, the accident has occurred while the petitioner was crossing the road at the zebra crossing. During his cross-examination, he has admitted in unequivocal terms that when the accident took place, the green signal was on for the vehicles, which goes to show that in spite of there being green signal for the vehicles and that there was no signal permitting the pedestrian to cross the road, he was trying to cross the road and as such he has contributed towards the accident. Therefore, I find no reason to interfere with the findings of the Tribunal that petitioner has contributed 25% of the negligent towards the accident.

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Though petitioner has contended that he was working as Mason and earning Rs.350/- per day, he has not produced any evidence to establish the said fact. Therefore the Tribunal has taken the earnings of petitioner at Rs.5,000/- per month. Since the accident is of the year 2011, in the absence of any admissible evidence, the income of the petitioner is to be calculated based on minimum wages. As per the Karnataka State Legal Services chart for the year 2011, the notional income is required to be taken is Rs.6,500/-. From the evidence placed on record the Tribunal has taken the age of the petitioner as 40 years which is correct. Therefore, the appropriate multiplier would be ‘15’ as taken by the Tribunal. With these components, the compensation payable to the petitioner is required to be calculated.

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16. Pain and Suffering: Petitioner has suffered fracture

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of both bones of the right leg and the fracture is not united and it has resulted in permanent partial disability. Having regard to these aspects, the grant of Rs.50,000/- under the head pain and suffering is just and reasonable and I find no reason to interfere with the same.

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Medical expenses: Based on the medical bills, the Tribunal has rightly granted compensation in a sum of Rs.30,000/- and it also does not call for any interference.

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Future medical expenses: On the basis of the evidence placed on record, the Tribunal has held that petitioner requires further treatment for removal of the implants and granted compensation in a sum of Rs.15,000/- and it also does not call for any interference.

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Food Diet and Conveyance: The Tribunal has granted compensation in a sum of Rs.10,000/- under the head food and diet and Rs.10,000/- under the head Conveyance etc. Since the petitioner has suffered two fractures of the right leg and has undergone surgery, taking into consideration the duration of the treatment and the nature of the injury sustained, I hold that granting additional sum of Rs.10,000/- would meet the ends of justice under this head and accordingly the compensation under this head is increased to Rs.30,000/- as against Rs.20,000/granted by the Tribunal.

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Loss of income during the laid of period: The Tribunal has granted compensation in a sum of Rs.15,000/- at the rate of Rs.5,000/- p.m. for a period of three months. As discussed earlier, the notional income should have been Rs.6,500/-. At this rate for a period of three months the petitioner is entitled for compensation in a sum of Rs.19,500/instead of Rs.15,000/- as granted by the Tribunal.

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Loss of amenities of life: Having regard to the fact that the petitioner has sustained two fractures of the right leg and was under treatment for three months, the grant of compensation in a sum of Rs.25,000/- is on the lower side. Granting additional sum of Rs.10,000/- would meet the ends of justice and accordingly the compensation under this head is increased to Rs.35,000/- as against Rs.25,000/- granted by the Tribunal.

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Future loss of income: PW.2 - Dr. S. Ramachandra has assessed the disability. He is not the treating Doctor. He has assessed the disability of the particular limb at 36.6% and 18% as the whole body disability. The Tribunal has not accepted the

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same and held 12% as the disability in respect of the whole body which is correct. However the Tribunal has not granted any compensation under the head loss of future prospects while calculating the loss of earning capacity. Since the petitioner was aged 40 years and was doing private/self employment 25% of his income is required to be added towards loss of future prospects. 25% of Rs.6,500/- comes to Rs.1,625/- making the total loss of income at Rs.8,125/-. With the income as Rs.8,125/-, multiplier as 15 and 12% disability, the total loss of income is Rs.8,125 x 12 x 15 x 12%=1,75,500/- as against Rs.1,08,000/- calculated by the Tribunal.

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Thus in all the petitioner is entitled for a compensation in a sum of Rs.3,55,000/as against Rs.2,63,000/- granted by the Tribunal. Since the petitioner has contributed 25% of negligence towards the accident, he is entitled for 75% of the amount of compensation granted. 75% of Rs.3,55,000/- comes to Rs.2,66,250/- i.e., (3,55,000 x 75% = 2,66,250). The details of the compensation are as under:

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Heads	Amount granted by the Tribunal In Rs.	Amount granted by this Court In Rs.
Medical expenses	30,000	30,000
Future medical expenses	15,000	15,000
Food and diet	10,000	30,000
Conveyance, etc.,	10,000
Pain and sufferings	50,000	50,000
Loss of past income	15,000	19,500
Loss of future income	1,08,000	1,75,500
Loss of amenities	25,000	35,000
TOTAL	2,63,000	3,55,000
	75% of 2,63,000= 1,97,250 Rounded off to 1,98,000	75% of 3,55,000= 2,66,250

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The Tribunal has granted interest at the rate of 9% p.a. without any basis. The same is reduced to 6%. Thus in all the petitioner is entitled for compensation in a sum of Rs.2,66,250/- with interest at 6% p.a. and accordingly I proceed to pass the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) Appellant/Petitioner is entitled for compensation in a sum of Rs.2,66,250/- with interest at 6% p.a. as against Rs.1,98,000/- granted by the Tribunal from

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the date of petition till realization (minus the amount already paid/deposited).

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(iii) Respondent No.2 Insurance Company shall deposit

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the compensation amount within a period of six weeks from the date of this order.

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(iv) Registry shall transmit the trial Court records along

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with copies of the judgment forthwith.

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Sd/JUDGE

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Sri Bheemanna v. Sri Hullurappa H

Case brief

What is this about?

What did the court decide?

Sri Bheemanna v. Sri Hullurappa H

Case brief

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What did the court decide?

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