Partly allowed

Sri Shekar B v. Vs Sri . Ramakrishnan

Karnataka HC14 Dec 2023MFA/4348/2019

Case brief

AI extract

What is this about?

The High Court allowed the motor vehicle appeal partly, enhancing compensation from Rs.4,93,000/- to Rs.5,76,200/- against the insurers. The Court revised the disability percentage and heads of compensation while upholding the finding of 40% contributory negligence.

What did the court decide?

Compensation enhanced to Rs.5,76,200/-. Insurer liable to pay 60% share of Rs.3,45,720/- with 6% interest.

Sri Shekar B v Vs Sri . Ramakrishnan — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^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. 4348 OF 2019

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(MV-I)

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BETWEEN:

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SRI. SHEKAR B.V, S/O VENKATESHAPPA, AGED 25 YEARS, R/O NO.69, KENCHANAHALLI, S.N.HALLI POST, YELAHANKA HOBLI, BENGALURU - 560 064.

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…APPELLANT

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(BY SRI. SURESH M LATUR.,ADVOCATE)

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AND:

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SRI. RAMAKRISHNAN

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

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OLD NO.7, NEW NO.23, PERIYASWAMY STREET, KRISHNAGIRI TAMILNADU - 635001.

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THE MANAGER, SRIRAM GENERAL INSURANCE COMPANY LIMITED., SS, 2ND FLOOR, MONARCH CHAMBER, INFANTRY ROAD, BENGALURU - 560001.

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…RESPONDENTS

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NC: 2023:KHC:47016 MFA No. 4348 of 2019

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(BY V/O DATED 07.12.2022 NOTICE TO R1 D/W; SRI.B.C. SHIVANNE GOWDA .,ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2018 PASSED IN MVC NO.1575/2015 ON THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH-4), 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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This is an appeal filed by the claimant aggrieved by

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the award passed in M.V.C No.1575/2015 dated 05.12.2018, on the file of XVIII Additional Judge, Court of Small Causes, Bengaluru, (SCCH-4), whereby the Tribunal granted compensation of an amount of Rs.2,96,000/-.

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The claim petition was filed seeking compensation of an amount of Rs.10,00,000/- for the injuries sustained by the claimants in the accident. It is the case of the claimant that on 05.08.2014 at about 6.15 a.m., when the claimant was riding a scooter, the driver of the lorry has parked the vehicle negligently on the road without observing the rules of parking and without switching on

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3 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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the parking lights. Claimant could not see the parked vehicle and dashed against it from behind due to which the petitioner sustained grievous injuries he was taken to the hospital and as per the wound certificate Ex.P10 the claimant had sustained left knee joint dislocation, Parietal depressed Communited open fracture with underlying EDH. As per the doctor, both the injuries are grievous in nature. According to the claimant he was aged 21 years and was working as a coolie and earning an amount of Rs.10,000/- per month. As per the doctor the claimant had

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sustained 52% disability to the limb and 26% to the whole body. The Court below had taken disability at 15% and Rs.10,000/- as the income and granted compensation

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under various heads as per the table below:-

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Sl. No.	Heads	Amount
1	Head of pain and suffering	Rs.40,000/-
2	Medical expenses	Rs.39,000/-
3	Loss of income during the laid up period for three months	Rs.30,000/-
4	Loss of disability at 15%	Rs.3,24,000/-

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4 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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5	Food and nourishment	Rs.30,000/-
	and attendant charges
6	loss of amenities	Rs.30,000/-
	Total	Rs.4,93,000/-

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3. The learned counsel appearing for the

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appellant/claimant submits that for the two grievous injuries sustained by the claimant granting an amount of Rs.40,000/-. Under the head of pain and suffering is on the lower side. He submits that when the doctor had stated that the claimant sustained 26% disability to the whole body the Court below ought not to have taken 15% as the disability. The Learned counsel submits that if 1/3^rd of 26% is taken, it would come to 17%. He further submits that under all the heads, the compensation that was awarded by the Tribunal is on the lower side. There is no contributory negligence on the part of the claimant, it is an admitted fact that the vehicle was parked on the road and the claimant had dashed to the vehicle. It is submitted that for proving the contributory negligence, burden lies on the respondent Insurance Company and that they have

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5 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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failed to discharge their burden. In-spite of the same, the Court had fastened the contributory negligence on the claimant Learned counsel relied on the judgment of Shobha’s sonny and others V/s Pushparaj Jain and others¹ and also relied on another Judgment of the Apex Court in Vishundeo Mahto and others V/S Kodai Sahni and others² Relying on these judgments learned counsel submits that the burden lies on the Insurance Company to prove that there is contributory negligence on the part of the claimant. In this case no such evidence is let in and the Court below ought not to have held that there is contributory negligence on the claimant.

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Learned counsel appearing for the Insurance Company submits that the Court below had rightly apportioned the negligence at 40% on the claimant. It is submitted that it is not the case of the claimant that the vehicle is parked on the road without signal in the night

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1 2021 ACJ 1163

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2 2023 ACJ 624

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NC: 2023:KHC:47016 MFA No. 4348 of 2019

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time, the claimant could not see. The accident had taken place in the broad day light and if he had been careful and cautious the accident would have been avoided. Hence, the Court below had rightly apportioned the negligence at 40% and 60%. The learned counsel submits that even under the other heads also the compensation that was awarded by the Tribunal was reasonable and no grounds are made out seeking enhancement of the compensation.

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In this case, the claimant had sustained 2 factures and he is entitled for an amount of Rs.50,000/- under the head of pain and suffering . Towards medical expenses the Court below had rightly granted an amount of Rs.39,000/- . When it comes to the loss of income the Court below had granted Rs.40,000/- considering that the claimant was in hospital for 33 days, this Court deems it appropriate to grant an amount of Rs.40,000/- under the head of loss of income during laid up period i.e., 10,000x4=40,000/-. Then coming to the disability, as rightly pointed out by the learned counsel 1/3^rd of 52%

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7 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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would be i.e.,17%. Hence this Court is considering the disability at 17% (Rs.10,000 x 12 x 18 x 17). Then the compensation under the head of loss of future incomes comes to Rs.3,67,200/-, towards food and nourishment the Court below had rightly granted an amount of Rs.30,000/-, Then, coming to the loss of future amenities the Court below had granted an amount of Rs.30,000/- . Considering the injuries sustained by the claimant this Court granting an amount of Rs.40,000/-.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER³ , the claimants are entitled for an amount of Rs.10,000/- towards legal expenses.

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Then coming to the aspect of contributory negligence it is settled law that when the contributory negligence is pleaded by the Insurance Company they have to adduce cogent evidence before the Court. In this

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3 (2014) 11 SCC 178

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8 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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case, no such evidence is adduced by the Insurance Company. The undisputed fact in this case is that the vehicle was parked on the road at 6.15 a.m., and the accident had taken place. According to the claimant as he could not see the vehicle, parking lights were not on and he went and dashed to the vehicle. In these circumstances question of proving the contributory negligence does not arise. The judgments which the claimant is relying on are not applicable to the facts of this case. He himself admits that he had dashed to the lorry for the reason that the parking lights were not on. This accident has taken place in the day time had the claimant been cautious the accident could have been avoided. The Court below has rightly held that there is 60% negligence is on the driver of the lorry and 40% on the claimant. This Court finds no reasons to interfere with the said finding. Accordingly out of the compensation amount of Rs.5,76,200/- 60% comes to Rs.3,45,720/- which the Insurance Company is liable to pay.

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9 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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The claimant is therefore, entitled to the

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compensation under the following heads:

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	Heads		Co	mpensation Awarded
1.	Pain and Sufferings	:	Rs.	50,000/-
2.	Medical expenses	:	Rs.	39,000/-
3.	Loss of income during laid up period 10000x4	:	Rs.	40,000/-
4.	Loss of disability (10000x12x18x17%)	:	Rs.	3,67,200/-
5.	Food, nourishment and attendant charges	:	Rs.	30,000/-
6.	Loss of future amenities	:	Rs.	40,000/-
7.	Legal Expenses	:	Rs.	10,000/-
	TOTAL	:	Rs.	5,76,200/-

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1. Accordingly the appeal of the claimant is partly

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allowed by enhancing the compensation from Rs.4,93,000/-

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to Rs.5,76,200/-. In that 60% being Rs.3,45,720/-, which the Insurance Company is liable to pay. The enhanced amount shall carry 6% interest.

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10 - NC: 2023:KHC:47016 MFA No. 4348 of 2019

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

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ii) 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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iii) 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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iv) 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 List No.: 1 Sl No.: 76

Sri Shekar B v. Vs Sri . Ramakrishnan

Case brief

What is this about?

What did the court decide?

Sri Shekar B v. Vs Sri . Ramakrishnan

Case brief

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What did the court decide?

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