Partly allowed

Sri S Murthy v. Smt Arogya Mary

Karnataka HC24 Nov 2023MFA/1642/2013

Case brief

AI extract

What is this about?

Appeal against Motor Accident Compensation award. High Court affirmed composite negligence by both vehicles' drivers (50% each). Enhanced disability compensation and awarded expenses. Rejected request to make insurer solely liable without notice to car owner.

What did the court decide?

Appeal allowed in part; Judgment modified to reflect joint 50% liability; Enhanced compensation awarded for disability, medical, and amenities; Notice to owner mandatory for recovery.

Sri S Murthy Vs Smt Arogya Mary — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 1642 OF 2013 (MV-I)

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BETWEEN:

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SRI S MURTHY S/O SATHAPPA AGE: 54 YEARS, OCC: NIL R/O NO. 85, 9^TH CROSS PILLAREDDY NAGAR BANASAWADI BANGALORE-560 043.

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…APPELLANT

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(BY SRI. SURESH M LATUR., ADVOCATE)

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AND:

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SMT. AROGYA MARY W/O LORD MARY NATHAN Digitally signed by RAMYA D R/O NO. 1942, CORPORATION Location: High QUARTERS COLONY Court of Karnataka BAGALUR LAYOUT BANGALORE-562 149.

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DO.NO.VI, CODE NO. 071600 NO. 89/1, II FLOOR, 11^TH CROSS SAMPIGE ROAD, MALLESHWARAM BANGALORE-560003

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2 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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SRI VIJAYA KUMAR K M S/O MUNISWAMAPPA KULUR VILLAGE, GENNERAHALLI POST BETHAMANGALA HOBLI BANGARPET TALUK KOLAR DISTRICT-563 114.

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…RESPONDENTS

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(BY R1 SERVED

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SRI. B.C.SHIVANNEGOWDA., ADVOCATE FOR R2 V/O/DATED: 2/1/2023 NOTICE TO R3 IS DISPENSED WITH)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2012 PASSED IN MVC NO.4546/2008 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the appellant-claimant challenging the judgment and award dated 03.12.2012 in MVC No.4546/2008 passed by the Court of Small Causes (SCCH-3) and MACT, Bangalore, seeking enhancement of compensation and also on the ground that the accident

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has occurred due to composite negligence between the drivers of autorickshaw and Indica car.

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3 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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The factum of accident, injury sustained by the

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claimant and coverage of insurance in respect of autorickshaw are not in dispute.

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Heard the arguments from both sides and perused the records.

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The question to be determined in this case is whether the accident is caused due to composite negligence between the drivers of autorickshaw and car or whether the accident is caused due to sole negligence of driver of Indica car.

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In the present case, when the claimant was passenger traveling in the autorickshaw No.KA-04/4135 along with another passenger coming from Banasawadi towards Frazer town, near fire station, at the crossing of road when the autorickshaw was in the process of taking ‘U’ turn, at that time, Indica car No.KA-04/B-892 coming from Frazer town direction towards Banasawadi, hit the said autorickshaw and hence, the claimant sustained injuries.

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NC: 2023:KHC:42471 MFA No. 1642 of 2013

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The Tribunal while determining the

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compensation and awarding the same, has fastened the liability entirely on the owner of the car.

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In the complaint-Ex.P1, the allegation is made

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entirely against the driver of the car. Accordingly, crime is registered against the driver of car and the charge sheet is filed making the driver of the car as accused. But P.W.1claimant who was traveling in autorickshaw and P.W.3 who is eye-witness to the accident, have stated that the accident is due to the actionable negligence on the part of both drivers of autorickshaw and Indica car. Ex.P2 is spot mahazar and Ex.P3 is spot sketch. Upon perusal of this spot mahazar and spot sketch, the road is a double road having divider on the middle of the road. The autorickshaw was coming from Banasawadi to Frazer town direction and while negotiating ‘U’ turn to enter into the

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road going towards Banasawadi, at that time, the car which was coming from Frazer town direction towards Banasawadi, hit the hind portion of the autorickshaw. It is

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5 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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on the conjunction of where there is a road for taking ‘U’ turn going towards Banasawadi. Therefore, the evidence of PW.1 and PW.3 are corroborated by Ex.P2 and Ex.P3.

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In the course of examination, PW.3 has stated that the driver of the car has also come with high speed and dashed the autorickshaw. It is not in the crossexamination that the driver of car alone is responsible for the accident. What P.W.3-eye-witness has deposed is that the car has hit the autorickshaw. Therefore, as per evidence on record and preponderance of probabilities, both the drivers of autorickshaw and car have contributed their negligence to the accident. The claimant was traveling in the autorickshaw and due to composite negligence between the drivers of the autorickshaw and car, the accident has taken place. Therefore, the driver of autorickshaw has contributed 50% towards rashness and negligence and the driver of Indica car has contributed 50% towards rashness and negligence. To this extent, the Judgment and Award passed by the Tribunal is liable to be modified. Accordingly, it is modified.

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6 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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In the present case, the claimant has sustained

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fracture of tibia and fibula bone of left leg lower 1/3^rd . The Tribunal has awarded compensation under various heads as under:

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Sl.No.	Heads.	Amount ( in Rs.)
1.	Pain and suffering	40,000
2.	Loss of earning due to disability	51,840
3.	Loss of earning during laid up period	4,000
4.	Attendant charges	4,500
5.	Incidental expenses like food, conveyance, attendant charges etc.	6,000
6.	Loss of amenities	10,000
	Total:	1,16,340

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The accident is caused on 08.05.2008.

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Therefore, notional income of Rs.2,500/- p.m., is found to be correct. The claimant is aged 50 years. Accordingly, appropriate multiplier is 13. The doctor has deposed that the claimant has suffered 31.5% of physical disability towards left lower limb and 15.6% towards lower body, but the Tribunal has taken only 12% as functional disability. Therefore, upon considering and believing the

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NC: 2023:KHC:42471 MFA No. 1642 of 2013

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evidence of doctor-P.W.2, whole body disability can be taken as 16%. Therefore, loss of future income due to disability is hereby assessed and quantified as under:

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Rs.4,500/- x 16/100 x 13 x 12 = Rs.1,12,320/-

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Compensation of Rs.60,000/- is awarded

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under the head injuries, pain and suffering. The claimant has not produced medical bills and receipts. Therefore, the Tribunal has not awarded compensation under the head medical expenses and hospitalization charges. Just because the claimant has not produced medical bills and receipts, that is not a ground to deny compensation under the head medical expenses and hospitalization charges for the reason that the claimant must have met some amount of medical expenses. Accordingly, a notional sum of Rs.10,000/- is awarded in the absence of medical bills. Further, for attendant charges and conveyance, amount of

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Rs.10,000/- is awarded. A sum of Rs.25,000/- is awarded under the head loss of amenities. A sum of

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8 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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Rs.13,500/- (Rs.4,500 x 3 months) is awarded under the

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head loss of income during laid up period.

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Learned counsel for the appellant submitted that a direction may be issued to Respondent No.2Insurance Company who is insurer of the autorickshaw to pay entire compensation to the claimant and then, recover 50% of amount from the Respondent No.3-owner of the car. As per the Judgment and Award of the Supreme

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Court in KHENYEI vs. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS (2015) 9 SCC 273) , unless notice is issued to the owner of the car, the insurer of autorickshaw was made liable to pay entire compensation and then, recover from the owner of the car. In the present case, the claimant has sought for dispensation of issuance of notice to Respondent No.3owner. Therefore, unless the owner is notified by way of notice, insured person of the autorickshaw cannot be directed to pay entire compensation and then recover 50%

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of the compensation amount from the owner of the

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9 - NC: 2023:KHC:42471 MFA No. 1642 of 2013

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autorickshaw. Therefore, the said request made by the appellant/claimant is turned down. Therefore, it is ordered that Respondent Nos.1 and 2 shall pay 50% of compensation to the claimant as they are jointly and severally liable to pay the compensation. The owner of the autorickshaw No.KA-04/4135 is directed to pay 50% of the said amount to the claimant. Respondent No.3 being owner of Indica car No.KA-04/B-892, shall pay 50% of compensation to the claimant.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed-in-part .

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ii. The judgment and award dated 03.12.2012 in MVC No.4546/2008 passed by the Court of Small Causes (SCCH-3) and MACT, Bangalore, is hereby modified.

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iii. The owner of autorickshaw No.KA-04/4135 as well as owner of Indica Car No.KA-04/B-892 shall each pay 50% of the compensation as they are jointly and severally liable to pay the compensation.

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10 -

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NC: 2023:KHC:42471 MFA No. 1642 of 2013

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iv. Costs made easy.

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v. Registry is directed to send the T.C.R along with a copy of this Judgment to the Tribunal forthwith.

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Sd/JUDGE

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BNV List No.: 1 Sl No.: 69

Sri S Murthy v. Smt Arogya Mary

Case brief

What is this about?

What did the court decide?

Sri S Murthy v. Smt Arogya Mary

Case brief

What is this about?

What did the court decide?

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