Partly allowed

Smt Komala D v. Amitab Goel

Karnataka HC10 Jan 2023MFA/41/2018

Case brief

AI extract

What is this about?

The High Court modified the Tribunal's finding of contributory negligence from 20% to 10% in a motor accident case. The Court enhanced the compensation for future loss of earnings and loss of income during treatment, adding interest at 6% per annum to the total revised award.

What did the court decide?

Compensation enhanced to Rs.5,12,740/- subject to 10% negligence deduction, with interest at 6% per annum from the date of petition till realization.

Smt Komala D Vs Amitab Goel — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 41 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.41 OF 2018 (MV-I)

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BETWEEN:

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SMT KOMALA D W/O SHIVANNA R/AT NO.1, 1ST CROSS, KATHRIGUPPA EAST, BSK 3RD STAGE, BENGALURU 560085

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…APPELLANT

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(BY SRI. SRIDHAR D S.,ADVOCATE)

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

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AND:

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AMITAB GOEL S/O A C GOEL MAJOR, NO.96, 1ST CROSS, 3RD MAIN ROAD, DOLLARS COLONY, J P NAGAR 4TH PHASE BENGALURU 560078.

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M/S LIBERTY VIDEOCON GENERAL INSURANCE CO LTD REPRESENTED BY ITS MANAGER # 1, ALYSSA, 1ST FLOOR, REAR PORTION, OLD NO.28, NEW NO.23, RICHMOND ROAD, BENGALURU-560025.

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…RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2, R1-SERVED)

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MFA No. 41 of 2018

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED22.09.2017 PASSED IN MVC NO.816/2017 ON THE FILE OF COURT OF SMALL CAUSES, MEMBER PRL.MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is filed by the appellant/claimant, seeking

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enhancement of the compensation as well as questioning the contributory negligence held also on the claimant.

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The brief facts of the case are that on 24.11.2016, at about 3.00 P.M., when the

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appellant/claimant was riding her motor cycle bearing registration No.KA-41-Y-6251, when she reached

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Brundavan Park, at that time, a Ford car bearing registration No.KA-05-MN-7920 came in a rash and negligent manner and dashed against the motorcycle, due to which she fell down and sustained grievous injuries.

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MFA No. 41 of 2018

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Therefore, the claimant has filed the claim petition, seeking compensation.

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Heard the arguments of learned counsel for the appellant and the learned counsel for the respondentInsurance Company and perused the records.

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The Tribunal after considering the facts and circumstances and evidence on record, has awarded a total compensation of Rs.4,36,500/- and held that the claimant has contributed 20% negligence on her part in causing the accident and deducted 20% of the total compensation which comes to Rs.3,49,200/-, along with interest at the rate of 9% per annum from the date of petition till the date of realization, under the following heads:

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SL.NO.	PARTICULARS	AMOUNT
		(IN.RS.)
1.	Pain and sufferings	40,000-00
2.	Medical expenses	1,79,100-00

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MFA No. 41 of 2018

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3.	Loss of income during the period of inpatient and period of treatment	28,000-00
4.	Food and nourishment, conveyance, attendant charges and other incidental expenses	10,000-00
5.	Future loss of earning due to permanent disability	1,34,400-00
6.	Loss of amenities	25,000-00
7	Future medical expenses	20,000-00
	Total	4,36,500-00
- Less	20% negligence ofpetitioner	87,300-00
Total c	ompensation to be paid by the respondent	3,49,200-00

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Being aggrieved by the lesser quantum of compensation and contributory negligence on the part of the claimant, the present appeal is filed.

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Learned counsel for the appellant submitted that the claimant has not attributed negligence and rashness, but the Tribunal has wrongly held 20% contributory negligence, which is not correct. Therefore,

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MFA No. 41 of 2018

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prays to hold the driver of the car was completely rash and negligent in causing the accident.

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On the other hand, the learned counsel for the Insurance Company submitted that the car was moving from South to North direction and the claimant was running the motor cycle from East to West with high speed and approached the edge of North side of the road without controlling the speed of the motor cycle and dashed the car. Therefore, submitted in this regard, the Tribunal has correctly assessed the contributory negligence which need not required interference.

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Upon perusing the documentary evidence,

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complaint, FIR, Spot Sketch, etc., even though the driver of the car was charge sheeted, the manner of accident is

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to be assessed. For making assessment of rashness and negligent aspect, Ex.P5 - Spot Sketch is to be appreciated. The car was moving from South to North direction at left

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MFA No. 41 of 2018

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side of the road. Therefore, the car driver was on his left side. The rider of the motor cycle while coming from East direction was in the process of taking right turn, which was the North direction, ought to have taken the right turn without dashing the car, but on perusing the place of accident is concerned, the claimant might have controlled the speed of the motor cycle. Therefore, while turning, the radius is found to be bigger. Therefore, the claimant has dashed the car. However, if the driver of the car had slowed down the car, then, he could have avoided the accident. Therefore, considering all these facts and circumstances, the driver of the car as well as the claimant both are responsible for the accident. Only the thing which is to be re-appreciated is the degree of rash and negligence. Therefore, considering this, it cannot be said that the claimant was not at all rash and negligent. But also, the claimant had contributed some percentage of rash and negligence and this Court is assessing the rash and negligent factor on the part of the claimant while

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MFA No. 41 of 2018

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riding the motor cycle is 10% and the driver of the car has contributed 90% to this accident. The finding of the Tribunal is liable to be modified. Accordingly, it is held that the claimant had contributed 10% of rash and negligence and the driver of the car has contributed 90% of rash and negligence in causing the accident.

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Regarding quantum of compensation:

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In the present case, the claimant has suffered fracture of left elbow dislocation with joint disruption and brachial vessel injury biceps tendon injury with laceration wound left cubital fossa. The above said injuries are grievous in nature. Therefore, considering the nature of injuries sustained and as the claimant was admitted in the hospital as inpatient for a period of five days, the compensation of Rs.40,000/- awarded under the head injury, pain and suffering, Rs.1,79,100/- awarded under the head medical expenses, Rs.25,000/- awarded under the head loss of amenities, Rs.20,000/- awarded under the

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MFA No. 41 of 2018

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head future medical expenses and Rs.10,000/- awarded under the head incidental expenses like food and nourishment, conveyance, attendant charges and other incidental expenses are found to be correct. Hence, they are kept in tact.

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The claimant is a cook by profession. In the absence of proof of income, considering the year of accident as 2016, notional income at Rs.9,500/- pm., is taken into consideration. The claimant was aged 32 years, hence, the appropriate multiplier applicable is ‘16’. The Tribunal has taken the disability at 10%, which is not correct. The doctor assessed the disability at 33.3% to the upper limb and 11% to the whole body. Hence, the disability is taken at 11% instead of 10% taken by the Tribunal. Therefore, the compensation under the head loss of earning capacity due to disability is re-assessed and quantified as follows:

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Rs.9,500/- x 11% x 16 x 12=Rs.2,00,640/-

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MFA No. 41 of 2018

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Accordingly, compensation of Rs.2,00,640/- is

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awarded under the head loss of earning capacity due to disability.

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Further, compensation of Rs.38,000/-

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(Rs.9,500/- pm., x 4 months) is awarded under the head loss of income during the period of inpatient and period of

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treatment as against Rs.28,000/- awarded by the Tribunal.

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Thus, in all, the appellant/claimant is entitled to

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the total compensation as follows:

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1	Pain and sufferings	Rs.	40,000/-	Kept in tact
2	Medical expenses	Rs.	1,79,100/-	Kept in tact
3	Loss of income during the period of inpatient and period of treatment	Rs.	38,000/-
4	Food and nourishment, conveyance, attendant charges and other incidental expenses	Rs.	10,000/-	Kept in tact

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10 -

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MFA No. 41 of 2018

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5	Future loss of earning due to permanent disability	Rs.	2,00,640/-
6	Loss of amenities	Rs.	25,000/-	Kept in tact
7	Future medical expenses	Rs.	20,000/-	Kept in tact
	Total	Rs.	5,12,740/-

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Since, the appellant/claimant has also

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contributed his negligence to the extent of 10%, she is entitled to only 90% out of the total compensation amount of Rs.5,12,740/- * along with interest at the rate of 6% per annum from the date of petition till the date of realization,

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in addition to what has been awarded by the Tribunal.

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- Omitted

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Hence, I proceed to pass the following.

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*Page No.10 is re-typed and re-placed vide Court order dt:14.03.2023

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MFA No. 41 of 2018

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ORDER

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i. Appeal is allowed in part.

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ii. The impugned judgment and award dated 22.09.2017 in MVC.No.816/2017 passed by Chief Judge, Court of Small Causes, Member Prl. Motor Accident Claims Tribunal, Bangalore (SCCH-1), is modified to the extent that * the appellant/claimant is entitled to 90% out of the total compensation amount of Rs.5,12,740/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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iii. No order as to costs.

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*Page No.11 is re-typed and re-placed vide Court order dt:14.03.2023

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MFA No. 41 of 2018

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iv. Registry is directed to transmit the TCR along

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with copy of this order to the Tribunal forthwith.

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v. Draw award accordingly.

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Sd/JUDGE

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Page No.12 is re-typed and re-placed vide Court order dt:14.03.2023

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SNC/PB

Smt Komala D v. Amitab Goel

Case brief

What is this about?

What did the court decide?

Smt Komala D v. Amitab Goel

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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