Partly allowed

Nagaraju H K v. H K Lokesh

Karnataka HC15 Nov 2023MFA/2354/2018

Case brief

AI extract

What is this about?

In two miscellaneous first appeals challenging a Motor Vehicles Tribunal award, the High Court recalculated compensation for a motor accident. The court enhanced certain heads like pain and suffering while denying future loss of earnings due to lack of proof, resulting in a total award of Rs. 1,99,000 subject to a 10% reduction for contributory negligence.

What did the court decide?

Compensation fixed at Rs. 1,99,000 total; insurer's liability reduced to Rs. 1,79,100 after 10% contributory negligence deduction.

Nagaraju H K Vs H K Lokesh — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 2354 OF 2018 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 1983 OF 2018

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IN MFA NO.2354/2018

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BETWEEN:

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NAGARAJU H K S/O KADANAIKA H S AGED ABOUT 41 YEARS R/AT B.T.KOPPALU, KASABA HOBLI, HASSAN PRESENTLY R/AT TEACHERS COLONY B KATIHALLI, KASABA HOBLI, HASSAN TALUK AND DSITRICT

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… APPELLANT

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(BY SMT. KAVITHA H C.,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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H K LOKESH S/O H.N. KALASHETTY SRI LAKSHMIDEVI NILAYA, BASAVESHWARA NAGARA, BALLUPETE, B.M. ROAD, SAKALESHPURA TALU HASSAN DITRICT-573201

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REGIONAL MANAGER ORIENTAL INSURANCE CO.LTD., 1ST FLOOR, DIVISIONAL OFFICE, S.S.COMPLEX, SUBASH SQUARE, HASSAN-573201

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…RESPONDENTS

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2 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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(BY SRI.K.SURESH.,ADVOCATE FOR R-2; NOTICE TO R-1 IS HELD SUFFICIENT)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED03.11.2017 PASSED IN MVC NO.834/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.1983/2018

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BETWEEN:

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REGIONAL MANAGER ORIENTAL INSURANCE CO LTD., IST FLOOR, DIVISIONAL OFFICE, S.S.COMPLEX, SUBASH SQUARE, HASSAN-573201 NOW REPRESENTED BY

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M.S THE ORIENTAL INSURANCE COMPANY LIMITED,REGIONAL OFFICE,

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LEO COMPLEX, RESIDENCY ROAD, BENGALURU -560001 REPRESENTED BY ITS AUTHORISED SIGNOTORY

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… APPELLANT

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(BY SRI. SURESH K., ADVOCATE)

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AND:

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1 . SRI NAGARAJU H K S/O SRI KADANAIK H.S., AGED ABOUT 41 YEARS, # B.T.KOPPALU, KASABA HOBLI, HASSAN.

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NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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PRESENTLY R/O TEACHERS COLONY, B.KATIHALLI, KASABA HOBLI, HASSAN TALUK AND DISTRICT

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2 . SRI H K LOKESH S/O SRI H N KALASHETTY, SRI LAKSHMIDEVI NILAYA, BASAVESHWARA NAGARA, BALLUPETE, B.M.ROAD, SAKALESHPURA TALUK, HASSAN DISTRICT.

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…RESPONDENTS

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(NOTICE TO R-1 IS HELD SUFFICIENT; NOITCE TO R-2 SERVED & UNREPRESENTED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED AGAINST THE JUDGMENT AND AWARD DATED 03.11.2017 PASSED IN MVC NO.834/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.2,83,700/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS, ARE COMING ON FOR FINAL 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.834/2016

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dated 03.11.2017 on the file of the Prl. Senior Civil Judge

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and Addl. MACT, Hassan. Both the Insurance Company and as well as the claimant are before this court.

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4 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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Insurance Company appeal is MFA.No.1983/2018 and appeal filed by the claimant is MFA.No.2354/2018.

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The claim petition was filed seeking

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compensation of an amount of Rs.10,00,000/- for the injuries sustained by the claimant in the accident, whereby the Tribunal had granted an amount of Rs.2,83,700/-. The case of the claimant is that on 03.02.2016 the claimant along with his friend was proceeding on a Hero Honda bike. At that time when he was taking a turn, the driver of the tanker lorry drove the said vehicle in a rash

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and negligent manner, dashed to this motor cycle. Due to which he fell down and sustained injuries on his right shoulder, right hand fractured and the pillion rider also sustained grievous injuries. He had spent huge amounts for medical expenses. He was working as teacher and earning an amount of Rs.30,000/- per month and earning an amount of Rs.10,000/- per month from agriculture and because of the injury sustained by him, he suffered a disability, which is having impact on his earning. The

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5 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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court below considering the injuries sustained by the claimant i.e.,

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1) fracture of Ulna right

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2) Contusion injury right shoulder

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3) Contusion injury left leg

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4) Abrasion forehead

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5) Abrasion right elbow

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had granted an amount of Rs.25,000/- under the head of pain and suffering. As per the evidence of the doctor, the x-ray shows that fracture are slightly mal-united and assessed the disability to the right upper limb at 18% and he also stated that an amount of Rs.30,000/- is required for future surgery. The court below as there was no evidence, considering the salary at Rs.7,000/- and considering the disability at 12% had granted an amount of Rs.1,51,200/- under the head of loss of income due to disability. Under the head of loss of amenities an amount of Rs.15,000/- was granted and towards medical expenses

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an amount of Rs.59,000/- was granted. Towards attendant, food and nourishment an amount of

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6 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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Rs.30,000/- was granted and towards loss of income during the treatment period an amount of Rs.3,500/- was granted. Altogether a compensation of an amount of Rs.2,83,700/- was granted by the Tribunal.

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Learned counsel for the claimant submits that accident had taken place in the year 2016, and the court below considering the income at Rs.7,000/- is on the lower side. It is further submitted that under the head of pain and suffering an amount of Rs.25,000/- is granted which is not a reasonable amount for the injuries sustained by him. Under the head of loss of amenities and the loss of income during the treatment period, the amount that were granted were not reasonable. It is submitted that the claimant is entitled for the enhancement of the compensation. It is further submitted that charge sheet has been filed against the driver of the tanker lorry, which shows that there is negligence on his part and the charge sheet is not questioned by the insurance company. It is

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7 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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submitted that claimant had discharged his burden that there is negligence on the part of the driver of the offending vehicle and the Tribunal has rightly held that the insurance company is liable to pay the compensation.

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4. Learned counsel for the insurance company

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submits that the court had passed the award without considering the material aspects. He submits that the petition is filed under section 166 of the MV Act and the burden lies on the claimant to prove that there is negligence on the part of the driver of the offending vehicle. It is submitted that except relying on the charge sheet, the claimant has failed to adduce any positive evidence in this regard. He submits that Ex.P-3 is spot mahazar which is filed by the claimant himself. Learned counsel submits that as per the said spot mahazar the width of the road is 12ft and the tanker lorry would at 8ft

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width. As per the spot mahazar, the accident had happened about 5ft from the left side of the bike. It is stated that in a 12 ft road, when 8ft itself is occupied by

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8 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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the tanker lorry and the tanker lorry is on its left side, because of negligence of the rider of the Hero Honda, the accident had taken place. The court in the entire judgment had failed to discuss about the same and infact the court had relied more on the charge sheet. He submits that apart from the police evidence, burden lies on the claimant to prove, basing on some evidence about the involvement of the vehicle. When the documents that are filed on their behalf itself supports the case of the insurance company, the court below ought to have considered the same. He further submits that in the cross examination, it is submitted by the claimant that he is working as a Teacher and after the accident his salary is hiked by Rs.500/- which shows that the disability that is incurred by the claimant had no impact on his future earning. According to him, he is working in a school and he will place all the records before the court to show about the loss of income if any. Learned counsel submits that no

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such documents are placed before the court. It is also submitted that just because there is disability, the

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9 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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claimant will not be entitled for loss of future income unless and until such disability has an effect on his future earning. It is submitted that the court below without considering all these facts had granted the compensation under the head of loss of income during the laid up period and loss of future income. He submits that the appeal of the insurance company has to be allowed by holding that the accident had taken place because of the negligence on the part of the rider-claimant.

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5. Heard the learned counsels on either side,

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perused the entire material on record. The claimant had suffered one fracture and he had to undergo the surgery.

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Though it is stated in the Chief Affidavit that the fracture is not united, but in the cross examination, the doctor has deposed that fracture elbow is united. Further the evidence of the claimant himself is that he is working and after the surgery there is an increase in salary shows that the disability or the injuries had no impact on his future

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10 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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earning. In that case, the court below without appreciating the same had granted compensation under the head of loss of income due to disability. In the considered opinion of this court, the disability that is sustained by him has no impact on his future earning and he is not entitled for any compensation. Under the head of pain and suffering considering the fracture injuries sustained by him, this court is inclined to grant an amount of Rs.40,000/-, towards medical expenses the court had granted an amount of Rs.59,000/- this court do not find

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any reasons to interfere with the same. When coming to loss of amenities, the doctor had deposed that he had sustained 12% disability to the whole body. Considering the discomfort, under the head of loss of amenities, this court is inclined to grant Rs.40,000/-. When it comes to Attendant, Food and nourishment the court below had granted an amount of Rs.30,000/- which is a reasonable

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amount and no interference is called for. The court below

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had granted an amount of Rs.3,500/- towards loss of income during the treatment period. When it is the

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11 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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evidence of the claimant himself that he is working as teacher and earning, whether there was any loss of

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income during the laid up period, it is for him to adduce the evidence. Nothing has been adduced and the court below went wrong in granting the compensation towards the loss of income during the treatment period for which he is not entitled.

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6. When it comes to the future operation, the

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doctor has deposed that Rs.30,000/- is required for future operation. Learned Counsel submits that nothing has

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been placed on record. Considering the evidence of the doctor, this court is inclined to grant an amount of Rs.20,000/- under the head of future operation. Altogether the claimant is entitled for compensation of an amount of Rs.1,99,000/-.

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In the light of the law laid down by the Hon'ble

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Supreme Court in the case of V. MEKALA -vs- M.

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12 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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MALATHI AND ANOTHER¹ , the claimant is entitled for

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an amount of Rs.10,000/- towards legal expenses .

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The claimant is entitled for compensation under

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the following heads:

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Sl. No.	Description of Items	C	ompensation Awarded
1.	Pain and suffering	Rs.	40,000/-
2.	Medical Expenses	Rs.	59,000/-
3.	Loss of amenities	Rs.	40,000/-
4.	Attendant, food and extra nourishment	Rs.	30,000/-
5.	Future Operation Expenses	Rs.	20,000/-
6.	Legal Expenses	Rs.	10,000/-
	Total	Rs.	1,99,000/-

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Coming to the aspect of negligence, according

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to the Ex.P-3 Spot Mahazar the width of the road is 12ft and the width of the tanker lorry is 8ft. The Tanker is on

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1 (2014) 11 SCC 178

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13 - NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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its extreme left and the accident had taken place about 4 ft from the left side of the road where the two wheeler is

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coming. It shows that almost two wheeler is on the middle of the road. Considering these aspects, this court is of the view that there is contributory negligence on the part of the rider of the two wheeler. If he had been more cautious, the accident would have not happened. Considering the contributory negligence, the same is apportioned at 10% on the claimant and 90% on the insurance company . As this court had granted compensation of an amount of Rs.1,99,000/-, 90% would be an amount of Rs.1,79,100/-. The insurance company is liable to pay an amount of Rs.1,79,100/-.

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Accordingly the appeal of the insurance

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company i.e., MFA.No.1983/2018 is Allowed-in-part by fixing 10% contributory negligence on the claimant and reducing the compensation from an amount of Rs.2,83,700/- to a sum of R.1,99,000/-. The appeal of the claimant i.e., MFA.No.2354/2018 is dismissed.

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14 -

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NC: 2023:KHC:40768 MFA No. 2354 of 2018 C/W MFA No. 1983 of 2018

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(a) As contributory negligence is apportioned at 10% on the claimant and 90% on the insurance company . The insurance company is liable to pay an amount of Rs.1,79,100/-.

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(b) The amount in deposit by the insurance company shall be forthwith transmitted to the Tribunal. If any excess amount is deposited, the insurance company is at liberty to withdraw the same.

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(c) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.

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(d) No Costs.

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Pending miscellaneous petitions, if any, shall

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stand closed.

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SD/JUDGE

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TS List No.: 1 Sl No.: 109

Nagaraju H K v. H K Lokesh

Case brief

What is this about?

What did the court decide?

Nagaraju H K v. H K Lokesh

Case brief

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What did the court decide?

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