Partly allowed

M.S. Sundaresh v. Jagadish

Karnataka HC16 Nov 2023MFA/2841/2020

Case brief

AI extract

What is this about?

In a miscellaneous first appeal under the Motor Vehicles Act, 1988, this Court enhanced the compensation awarded to the claimant in a road accident case. The Court directed the insurance company to deposit the enhanced amount at the first instance, even though the driver of the offending vehicle did not possess a valid license.

What did the court decide?

The appeal allowed in part; compensation enhanced from Rs.2,91,441 to Rs.3,87,802; Insurance Company directed to deposit 50% of enhanced amount with interest at 6% p.a.

M.S. Sundaresh Vs Jagadish — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:40909 MFA No. 2841 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 2841 OF 2020 (MV)

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BETWEEN:

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M.S. SUNDARESH S/O SHEKARASHETTY AGED ABOUT 32 YEARS R/O MARLE VILLAGE & POST AMBLE HOBLI CHIKKAMAGALURU TLUK AND DISTRICT- 577101 …APPELLANT

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(BY SRI. GIRISH B BALADARE.,ADVOCATE)

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AND:

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1. JAGADISH

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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S/O CHIKKEGOWDA AGED ABOUT 22 YEARS R/O CHIKKAGOUJA VILLAGE HIRGOUJA POST, LAKYA HOBLI CHIKKAMAGALURU-577101.

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2. RANGANATHA

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S/O RANGEGOWDA AGED ABOUT 42 YERS R/O CHIKKAGOUJA VILLAGE HIRGOUJA POST, LAKYA HOBLI CHIKKAMAGALURU TALUK -577101.

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3. THE MANAGER

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NEW INDIA ASSURANCE CO. LTD SULTANAS, K T STREET CHIKKAMAGALURU-577101.

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NC: 2023:KHC:40909 MFA No. 2841 of 2020

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4. THE MANAGER

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UNITED INDIA INSURANCE CO. LTD CRESCENT COURT, 1ST FLOOR K M ROAD, CHIKKAMAGALURU-577101. …RESPONDENTS

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(BY SRI. K R LINGARAJU.,ADVOCATE FOR R1 & R2: SRI. B. PRADEEP, ADVOCATE FOR R3: SRI. JANARDHAN REDDY, ADVOCATE FOR R4)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 31.07.2019 PASSED IN MVC NO.510/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimant being aggrieved by the judgment dated 31.07.2019 passed by the II Addl. Senior Civil Judge and MACT, Chikkamagaluru (for short, ‘the Tribunal’) in MVC No.510/2017.

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Facts giving rise to the filing of the appeal briefly stated are that on 22.03.2017 at about 5.30 p.m.,

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the claimant was proceeding on his motorcycle bearing registration No.KA-18/EB-2017 from Kadur to

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Chikkamagaluru. When he reached near Chandregowda’s house, Laxmipura village, K.M.road, Chikkamagaluru, at that time, another motorcycle bearing registration No.KA18/W-3015 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant fell down, sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.

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On service of notice, the respondent Nos.1 to 4 appeared through counsel and respondent Nos. 2 to 4 filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the accident was due to the rash and

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negligent riding of the vehicle by the claimant himself. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW1, Dr.Venkatesh as PW2 and another witness as PW3 and got exhibited documents namely Ex.P1 to Ex.P78. On behalf of the respondents, two witnesses were examined as RW1 and RW2 and got exhibited documents namely Ex.R1 to Ex.R8. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the claimant and also the offending vehicle by its rider at 50% each, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,91,441/- along with interest at the rate of 8% p.a. and directed the owner of the offending vehicle to deposit 50% of the compensation amount, i.e., Rs.1,45,721/-

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along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimant has raised

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the following contentions:

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(i) Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, but the Tribunal has taken the notional income as only Rs.8,000/- per month.

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(ii) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 13 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He suffered lot of pain during treatment and he has to suffer the disability and unhappiness throughout his life. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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(iii) Thirdly, even though the rider of the offending vehicle was not having a valid and effective driving licence. In respect of claimant is concerned, the Insurance

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Company has to pay the compensation at the first instance

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with liberty to recover the same from the owner of the offending vehicle. In support of his contentions, he relied on the judgment of the Apex Court in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND

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ANOTHER reported in AIR 2018 SC 592 and a Full Bench judgment of this Court in the case of NEW INDIA

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ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND

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ANOTHER reported in ILR 2020 Kar.2239. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the

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Insurance Company has raised the following contentions:

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(i) Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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(ii) Secondly, the injuries suffered by the claimant are minor in nature. He was inpatient for only 13 days. Considering the evidence of the doctor and the injuries

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NC: 2023:KHC:40909 MFA No. 2841 of 2020

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suffered by the claimant, the overall compensation awarded by the Tribunal is just and reasonable.

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(iii) Thirdly, it is not in dispute that the rider of the offending vehicle was not having a valid and effective driving licence. Since insured has violated the policy condition the Insurance Company is not liable to pay the compensation. The Tribunal has rightly exonerated the Insurance Company.

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(iv) Fourthly, in view of the Division Bench decision of this Court in the case of MS.JOYEETA BOSE AND

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OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on

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24.8.2020), the interest granted by the Tribunal at the rate of 8% p.a. is on the higher side and the same has to be reduced to 6% p.a. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties. Perused the judgment and award and the original records.

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In respect of negligence is concerned, the Tribunal, after considering the evidence of the parties and

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the materials available on record, has rightly held that the rider of the motorcycle bearing registration No.KA-18/EB2017 has contributed 50% to the accident and the rider of the motorcycle bearing registration No.KA-18/W-3015 has contributed 50% to the accident. Therefore, the claimant is entitled to only 50% of the compensation.

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The claimant has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2017, the notional income has to be taken at Rs.11,000/- p.m. Due to the accident the claimant has suffered fracture of right femur bone, fracture of right 2^nd and 3^rd metacarpal bone and fracture of right 2^nd and 3^rd meta tarsal bone. The Tribunal has rightly assessed the whole body disability at 6.66%. The claimant was aged about 31 years at the time of the accident and multiplier applicable to his age group is ‘16’. Thus, the claimant is entitled for compensation of Rs.1,40,659/- (Rs.11,0001216*6.66%) on account of

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'loss of future income'. Due to the accident, the claimant has suffered grievous injuries, he has suffered lot of pain during treatment and he has to suffer with the disability and unhappiness throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.20,000/- to Rs.40,000/- and 'loss of amenities' from Rs.20,000/- to Rs.40,000/-. 'loss of income during laid-up period' for a period of two months, i.e., Rs.22,000/- (Rs.11,000*2). The compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	20,000	40,000
Medical expenses	102,409	102,409
Food, nourishment, conveyance and	10,734	10,734

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attendant charges
Loss of income during	4,000	22,000
laid up period
Loss of amenities	20,000	40,000
Loss of future income	102,298	140,659
Future medical expenses	32,000	32,000
Total	291,441	387,802

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The Tribunal has given a finding that the rider of the offending vehicle was not having a valid and effective driving licence. The Tribunal has rightly exonerated the Insurance Company from the liability. However, in view of the law laid down by the Apex Court in the case of PAPPU (supra) and a Full Bench judgment of this Court in the case of YELLAVVA (supra) , Insurance Company is liable to pay the compensation at the first instance with liberty to recover the same from the owner of the offending vehicle.

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In view of the above, I pass the following order:

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(i) The appeal is allowed in part.

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(ii) The judgment of the claims Tribunal is modified. The claimant is entitled to 50% of the total compensation of Rs.3,87,802, i.e., Rs.1,93,901/in place of Rs.1,45,721/- awarded by the Tribunal.

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(iii) The New India Assurance Company Limited, i.e., respondent No.3 herein is directed to deposit a sum of Rs.1,93,901/- along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment, excluding interest for the compensation awarded under the head of 'future medical expenses’ at Rs.16,000/-, with liberty to recover the same from the owner of the motorcycle bearing registration No.KA-18/W3015.

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(iv) The enhanced compensation carries interest @ 6% p.a.

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Sd/JUDGE

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List No.: 3 Sl No.: 55

M.S. Sundaresh v. Jagadish

Case brief

What is this about?

What did the court decide?

M.S. Sundaresh v. Jagadish

Case brief

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