Partly allowed

Sri. Subraya Badiya Naik v. Sri. Nagaraj

Karnataka HC7 Dec 2023MFA/2247/2018

Case brief

AI extract

What is this about?

The High Court enhanced compensation claims against the Tribunal and insurance company. While dismissing the challenge to contributory negligence findings due to lack of pleading, the Court increased compensation for income and medical implants, reducing the insurance company's liability. The appeal was partly allowed.

What did the court decide?

Compensation enhanced to Rs. 10,03,630/- with interest at 6% p.a. and direction to insurance company to deposit the amount within eight weeks.

Sri. Subraya Badiya Naik Vs Sri. Nagaraj — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:47116 MFA No. 2247 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 2247 OF 2018 (MV-I)

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BETWEEN:

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SRI.SUBRAYA BADIYA NAIK, S/O BADIYA NAIK, AGED ABOUT 41 YEARS, R/O SHETRAMANE, HONNEMADI, BELKE, BHATKAL TALUK, KARWAR-581 320 UTTAR KANNADA DISTRICT.

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…APPELLANT

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(BY SRI.K.PRASANNA SHETTY.,ADVOCATE)

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AND:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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SRI. NAGARAJ, S/O VEERAPPA BIDARI, AGED ABOUT 39 YEARS, R/O OLD BAZAR, YALABURGA TALUK, KOPPAL DISTRICT- 583 226.

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SRI.ASHOK BELLARI, S/O SHARANAPPA BELLARI, AGED ABOUT 34 YEARS, R/O YALABURGA TALUK, KOPPAL DISTRICT-583 226.

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SHRIRAM GENERAL INSURANCE COMPANY LTD., FIRST FLOOR, MUNICIPAL COMPLEX,

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NC: 2023:KHC:47116 MFA No. 2247 of 2018

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KUNDAPURA TALUK, UDUPI DISTRICT - 572101.

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…RESPONDENTS

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(BY SRI.B.PRADEEP FOR R3.,ADVOCATE) (R1 VIDE ORDER DATED 06.11.2023 NOITICE DISPENSED WITH) (R2 SERVED AND UNREPRESENTED.)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.03.2017 PASSED IN MVC NO.941/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL MACT, KUNDAPURA, 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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Aggrieved by the award passed in MVC No.941/2016

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dated 28.03.2017 the claimant is before this Court seeking enhancement of the compensation as well as questioning the contributory negligence fixed on the claimant. The claim petition was filed seeking compensation of an amount of Rs.28,95,000/- for the injuries sustained by the claimant in the accident.

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It is the case of the claimant that on 15.05.2015 at about 1.30 p.m., the claimant was riding the Hero

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3 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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Honda Splendor on the left side of the road. At that time A Toofan Tempo Trax driver came from the opposite direction in a high speed and dashed against the Hero Honda Splendor. Due to the said impact he had sustained grievous injuries to thigh, right femur, right knee, right ankle, right chest, right distal end radins. According to the claimant he was earning an amount of Rs.24,000/- per month. As per the evidence of the Doctor he had sustained 18% disability to the right upper Limb and 22% disability to the lower limb and according to the doctor the whole

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body disability is 20%. The Court below considering the injuries sustained by the claimant 5 in number, which are grievous in nature and hospitalized for 56 days, had granted an amount of Rs.1,00,000/- under the head of pain and suffering, medical expenses granted an amount of Rs.3,21,630/-, towards food, nourishment, conveyance and attendant granted an amount of Rs.20,000/- each. Loss of earning during the laid up period granted an amount of Rs.84,000/-, loss of future earning granted an amount of Rs.2,52,000/-. Disability was considered at

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4 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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20% and the income was taken at Rs.7,000/- per month. Towards loss of Amenities an amount of Rs.50,000/-, future medical expenses Rs.20,000/-. Altogether, compensation of an amount of Rs.8,87,630/- was granted by the Tribunal.

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The learned counsel for the claimant submits that the Court below failed to consider the fact that he was inpatient for 56 days and granted only an amount of Rs.60,000/- under the head of transport, attendant and extra nourishment. It is submitted that this accident had taken place in the year 2015, the Court below had taken Rs.7,000/- as the monthly income which is on the lower side. Further it is submitted that for the future operation, Doctor has deposed that he requires Rs.35,000/-, But the Court had granted only Rs.20,000/-. It is submitted that all the amounts that were granted by the Tribunal were on the lower side.

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The learned counsel for the Insurance Company submits that though it is stated that he is earning an

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5 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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amount of Rs.12,000/- per month, no evidence is adduced by the claimant. The Court below had rightly taken Rs.7,000/- as monthly income. He submits that under all the heads, the amounts that were granted by the Tribunal were on higher side and no grounds are made out for enhancement of the compensation.

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The learned counsel for the claimant submits that, the Court below had apportioned the contributory negligence at 20% on the claimant and 80% on the driver of the offending vehicle. He submits that it is nobody's case that there is contributory negligence on the part of the claimant. Court below more on assumption and presumption and considering on the evidence of the driver of the vehicle had apportioned the negligence on the claimant. It is submitted that said finding of the Court below is without any basis.

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On the contrary, the learned counsel for the Insurance Company submits that considering the evidence and the manner of the accident the Court had rightly

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6 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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apportioned the contributory negligence at 20% on the claimant. He submits that no grounds are made out for interference with the impugned award passed by the Tribunal.

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Having heard the counsels on either side, perused the entire material on record. The claimant had sustained as many as 5 injuries and the Court had granted an amount of Rs.1,00,000/- under the head of pain and suffering which is a substantial amount hence no interference is called for. When it comes to medical expenses basing on evidence, the Court below had granted the compensation of an amount of Rs.3,21,630/- and it requires no interference. Then coming to the head

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of food, nourishment, conveyance and attendant

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charges an amount of Rs.20,000/- was granted on each head by the Court below and no interference is called for.

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Then coming to the loss of income according to the claimant he is earning Rs.12,000/- per month, no evidence is adduced. Considering that this is an accident of the year

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7 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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2015, this Court is taking Rs.9,000/- as the monthly income. The Court below for 12 months granted an amount of Rs.1,08,000/- under the head of loss of income during the laid up period. Coming to the loss of future income claimant is entitled for an amount of Rs.3,24,000/-, (9,000x12x15x20/100=3,24,000/-). Towards loss of amenities Court below had rightly granted an amount of Rs.50,000/- and no interference is called for. Future removal of implants as per the doctor he requires Rs.35,000/-, Court below had granted an amount of Rs.20,000/-. Considering the injuries this Court is granting an amount of Rs.30,000/-.

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Further in the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER¹ , the claimant is entitled for an amount of Rs.10,000/- towards legal expenses. Altogether, the claimant is entitled for an amount of Rs.10,03,630/-.

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1 (2014) 11 SCC 178

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8 - NC: 2023:KHC:47116 MFA No. 2247 of 2018

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The claimant is therefore, entitled to the

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compensation under the following heads:

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Sl.No.	Heads		Co	mpensation Awarded
1.	Pain and Suffering	:	Rs.	1,00,000/-
2.	Towards loss of future income (9000x12x15x20/100)	:	Rs.	3,24,000/-
3.	Loss of income during laid up period (9x12)	:	Rs.	1,08,000/-
4.	Towards nourishment, attendant and conveyance charges	:	Rs.	60,000/-
5.	Loss of amenities	:	Rs.	50,000/-
6.	Future removal implants	:	Rs.	30,000/-
7.	Medical expenses	:	Rs.	3,21,630/-
8.	Legal Expenses	:	Rs.	10,000/-
	TOTAL	:	Rs.	10,03,630/-

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Now coming to the contributory negligence in this

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case the rider of the vehicle pleaded guilty before the Court

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below. There was no pleading that there is contributory negligence on the part of the rider. Basing on some question

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put forth in the cross examination the Court has assessed the contributory negligence. This Court is of the considered

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NC: 2023:KHC:47116 MFA No. 2247 of 2018

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opinion that basing on some question putforth in the cross examination, the Court below ought not to have gone into the said aspect, without any pleading and without any proof, the Court ought not to have gone into the said issue. In view of the same, this Court finds that there is no contributory negligence on the part of the claimant and it is because of the rash and negligent driving of the rider of the opposite vehicle the accident had taken place.

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Accordingly, the Appeal is allowed-in-part ,

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enhancing the compensation amount from Rs.8,87,630/- to Rs.10,03,630/-.

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i) The accident has taken because of the negligence of the driver of the opposite vehicle.

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ii) The enhanced amount shall carry interest at 6% p.a. from the date of petition till the date of realization.

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iii) The respondent - Insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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iv) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v) No costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/JUDGE

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RMS

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List No.: 1 Sl No.: 69

Sri. Subraya Badiya Naik v. Sri. Nagaraj

Case brief

What is this about?

What did the court decide?

Sri. Subraya Badiya Naik v. Sri. Nagaraj

Case brief

What is this about?

What did the court decide?

What the court decided

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