Partly allowed

Jagadish R v. S. Sundar

Karnataka HC23 Mar 2022MFA/9456/2015

Case brief

AI extract

What is this about?

In a motor vehicle accident appeal, the High Court of Karnataka modified the Tribunal's award. The Court reduced contributory negligence from 50% to 30% for the petitioner, increased damages under pain and suffering, attendant charges, and loss of amenities, and adjusted the loss of earning calculation. The final payable amount was enhanced to Rs.96,600 with 6% interest.

What did the court decide?

Compensation enhanced to Rs.96,600 with 30% contributory negligence fixed on the petitioner and interest at 6% p.a.

Jagadish R Vs S. Sundar — 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.9456/2015 (MV)

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BETWEEN:

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JAGADISH R T.RAMAIAH, AGED ABOUT 30 YEARS, R/AT 2^ND CROSS, V.V. NAGARA, MANDYA - 571 401.

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… APPELLANT

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(BY SMT. BHUSHANI KUMAR, ADVOCATE)

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AND:

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S. SUNDAR S/O KESHAVA DOOR NO.640/1, 1^ST FLOOR BRITISH BIOLOGICAL ROAD, ARAKERE VILLAGE, B.G.ROAD, BANGALORE - 560 076.

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THE MANAGER (LEGAL) RELIANCE GENERAL INSURANCE COMPANY LTD MYSORE TRADE TOWERS, OPP. KSRTC BUS STAND MYSORE - 570 001.

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...RESPONDENTS

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(BY SRI. B PRADEEP, ADVOCATE FOR R2; V/O/DTD 07.03.2022, R1 NOTICE D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO CALL FOR RECORDS IN MVC NO.1912/2012 DATED: 26.09.2015 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE & ADDL. MACT, MANDYA AND TO MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION, 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 appeal is by the petitioner seeking enhancement of compensation and also to set aside the impugned judgment and award fixing 50% contributory negligence on 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 22.04.2012 he was riding Pulsar Motor cycle bearing registration No.KA 04/EP 766 from Somanahalli towards Mandya in order to go to his sister’s house. At around 12-00 midnight when he was proceeding at Somanahalli village on Mysuru-Bengaluru

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Highway, a Qualis car bearing registration No.KA 05/MD 5477 (hereinafter referred to as offending vehicle) was parked by the side of the main road without any indicator in a negligent manner. As a result of which petitioner dashed against the back portion of the Qualis car and fell down and sustained multiple injuries. At the time of accident, he was aged 27 years and was earning Rs.12,000/-p.m. by agriculture and coolie. He has suffered disability and unable to earn as he used to. Respondents being the owner and insurer of the offending vehicle are liable to pay the compensation.

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Before the Tribunal respondent No.1 remained Exparte.

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Respondent No.2 appeared and filed written statement denying that accident occurred due to the parking of the Qualis without indicator in a negligent manner. On the other hand the accident occurred due to the rash or negligent driving by the petitioner himself. Respondent No.2 has also denied the age, occupation, income, nature of the injury sustained by the petitioner and that it has resulted in permanent partial disability. Ultimately, if it is proved that the offending vehicle was covered

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by a valid policy, it’s liability is subject to the terms and conditions of the policy.

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Based on the pleadings, necessary issues were

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framed by the Tribunal.

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In support of his case petitioner has examined himself as PW-1 and got marked Ex.P1 to P10. On behalf of the respondent No.2, the accident register extract is marked as Ex.R1.

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Vide the impugned judgment and award, the Tribunal has held that accident occurred due to the negligent parking of the offending vehicle and also due to the rash or negligent driving by the petitioner and as such petitioner has contributed 50% of negligence. The Tribunal has quantified the compensation at Rs.1,15,000/- and 50% of it i.e., Rs.57,500/- is ordered to be paid to the petitioner. The details of the compensation granted by the Tribunal is as under:

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Heads Amount
in Rs.
Pain and suffering 40,000
Medical expenses 5,000
Towards attendant, 10,000
conveyance, Nourishment and
towards other incidental
expenses
Towards loss of earning during 20,000
treatment and rest
Towards physical disability 25,000
causing physical
inconvenience, discomfort,
frustration, etc.
Towards future amenities 15,000
TOTAL 1,15,000
Compensation payable to petitioner is Rs.57,500/-
(being 50% of the sanctioned amount)

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Being aggrieved by the impugned judgment and award fixing 50% of contributory negligence on him and ordering for only 50% compensation, the petitioner has come up with this appeal contending that the compensation granted under various heads is on lower side. The Tribunal is not justified in fixing 50% contributory negligence on the petitioner. The Tribunal would have granted interest at 12% p.a. instead of 9%.

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Heard arguments of both sides and perused the records.

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During the course of the argument, the learned counsel for the petitioner submitted that at least the contributory negligence may be reduced to 30% and having regard to the nature of the injury sustained by the petitioner, the compensation under various heads may be increased. On the other hand learned counsel for respondent No.2 submitted that the impugned judgment and award does not call for interference by this Court and prays to dismiss the appeal.

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In view of the specific contentions raised by the petitioner before this Court, it has become necessary to examine whether the compensation granted by the Tribunal is just and reasonable and also whether the Tribunal is justified in fastening 50% contributory negligence on the petitioner.

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In respect of the accident, the complaint was lodged by the petitioner himself. However, after conducting a detailed investigation, the Investigating Officer has filed charge sheet not only against the driver of the offending vehicle, but also made petitioner as co-accused holding that he was also negligent in not observing the vehicle which was parked by the side of the road and dashing against it.

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In the written statement respondent No.2 has contended that the petitioner was negligent to the extent of 75% and the contributory negligence so far as driver of the offending vehicle is required to be fixed at 25%. In the charge sheet it is stated that the driver of the offending vehicle was traveling from Bengaluru side towards Mysuru side and at the place of accident, the said vehicle became out of order and therefore instead of parking it by the side of the road, he parked it in the centre of the road without any indicator and thereby contributed towards the accident.

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Similarly, in the charge sheet it is alleged that the petitioner rode his two wheeler in a rash or negligent manner and dashed against the parked offending vehicle and thereby contributed towards the accident. Since the Qualis vehicle in question was not parked by the side of the road, but it was parked in the middle of the road, I am of the considered opinion that the contributory negligence on the part of the offending vehicle is more when compared to that of petitioner and therefore, the contributory negligence on the part of the driver

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of the offending vehicle is to be increased to 70% and that of the petitioner is to be decreased to 30%.

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Now, coming to the quantum of compensation granted by the Tribunal under various heads and to examine whether it requires re-consideration.

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Pain and suffering: As evident from Ex.P4 - the wound certificate, the petitioner has sustained fracture of both bones of the right leg. While injury No.1 is simple, the other two injuries are stated to be grievous. Petitioner was admitted to Government Hospital, Mandya and he has undergone surgery. He was in-patient for 19 days. The Tribunal has granted compensation in a sum of Rs.40,000/- under the head pain and suffering. However, having regard to the nature of injury sustained, treatment taken and duration of the treatment, I hold that petitioner is entitled for additional sum of Rs.10,000/- under this head.

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Medical expenses: Based on the medical bills, the Tribunal has granted compensation in a sum of Rs.5,000/-. Since the petitioner has taken treatment at the Government Hospital,

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it appears he has incurred less expenses when compared to Private Hospital. Since this amount is granted based on the medical bills, I find no reason to interfere with the same.

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Attendant, conveyance, nourishment and incidental charges: The Tribunal has granted compensation in a sum of Rs.10,000/- under this head. Since the petitioner has taken treatment at Government Hospital, Mandya, it has come in the evidence that food was provided to him. However, having regard to the fact that he has suffered two fractures and was impatient for 19 days, it would be appropriate if this compensation under this head is increased by another 5,000/- making the total compensation under this head to Rs.15,000/-.

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Loss of earning during the treatment period: The Tribunal has granted compensation in a sum of Rs.20,000/under this head by taking notional income at Rs.5,000/- p.m. and granted compensation for a period of four months. The petitioner has not produced any evidence to show his exact income. Since the accident is of the year 2012, based on the chart prepared by the KSLSA (Karnataka State Legal Services

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Authority, the notional income for the year 2012 is required to be taken at Rs.7,000/- p.m. At the rate of Rs.7,000/- p.m. for a period of four months, the petitioner is entitled for a compensation in a sum of Rs.28,000/- as against Rs.20,000/granted by the Tribunal.

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Loss of amenities: The Tribunal has granted a compensation in a sum of Rs.15,000/- under the head loss of amenities of life. It has also granted compensation in a sum of Rs.25,000/- under another head by captioning it as “Physical disability, causing physical inconvenience, discomfort, frustration etc”. When the compensation is granted under the head loss of amenities, it includes the physical disability, physical inconvenience, discomfort, frustration etc. Therefore, unless and until the injury has resulted in disability affecting the earning capacity, compensation under such separate heads need not be granted. Therefore grant of Rs.25,000/- under the said head is disallowed. However, the grant of compensation under the head loss of amenities of life in a sum of Rs.15,000/- is very low. Therefore, having regard to the nature of the injury sustained, duration of the treatment and also the fact that petitioner has

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undergone operation, I hold that petitioner is entitled for compensation in a sum of Rs.40,000/- as against Rs.15,000/granted by the Tribunal.

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Thus, in all petitioner is entitled for compensation in a sum of Rs.1,38,000/-. Since 30% contributory negligence is fixed on him he is entitled for the 70% of amount which comes

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to Rs.96,600/- as detailed below:

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Heads	Amount granted by the Tribunal In Rs.	Amount granted by this Court In Rs.
Pain and suffering	40,000	50,000
Medical expenses	5,000	5,000
Towards attendant, conveyance,
Nourishment and	10,000	15,000
towards other incidental expenses
Towards loss of earning during treatment and rest	20,000	28,000
Towards physical disability causing physical inconvenience, discomfort, frustration, etc.	25,000	-
Loss of amenities	15,000	40,000
TOTAL	1,15,000	1,38,000
	50% of 1,15,000= 57,500	70% of 1,38,000= 96,600

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The Tribunal has granted interest at 9% p.a. without any basis. Therefore, the same is fixed at 6% p.a. 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

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compensation in a sum of Rs.96,600/- as against Rs.57,500/- granted by the Tribunal together with interest at 6% p.a. from the date of petition till realization (minus the amount already paid/deposited).

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(iii) Respondent No.2 Insurance Company shall deposit 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 with the copy of the judgment forthwith.

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Sd/JUDGE

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Jagadish R v. S. Sundar

Case brief

What is this about?

What did the court decide?

Jagadish R v. S. Sundar

Case brief

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