Partly allowed

Sri Mahendra T M v. Sri Shankara M

Karnataka HC10 Oct 2023MFA/5171/2021

Case brief

AI extract

What is this about?

In this first appeal against a Motor Vehicle Accident compensation award, the High Court reviewed the Tribunal's finding on contributory negligence and assessed the quantum of damages. The Court enhanced compensation, acknowledging 30% contributory negligence, and ordered the insurer to deposit the enhanced amount with interest.

What did the court decide?

The appeal was allowed in part; compensation was enhanced to Rs.16,11,500; the insurer ordered to deposit the enhancement of Rs.9,22,000 with 6% per annum interest.

Sri Mahendra T M Vs Sri Shankara M — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:36975-DB MFA No. 5171 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA

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MISCELLANEOUS FIRST APPEAL NO.5171 OF 2021 (MV-I)

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BETWEEN:

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SRI MAHENDRA T.M. S/O SRI T E MAHADEVA AGED ABOUT 27 YEARS R/O C/O SRI H DEVARAJU D.NO.2858, II MAIN ROAD JAYANAGARA, MYSURU-570 005.

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…APPELLANT

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(BY SRI BASAVANNA K .M., ADVOCATE)

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI SHANKARA M S/O SRI MAHADEVAPPA AGED ABOUT 37 YEARS R/O D NO.227, KALENAHALLI MANDYA TALUK, MANDYA-571 401.

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SRI HIREMATHA PANCHAKSHARI S/O SRI SHANKARAIAH AGED ABOUT 54 YEARS R/O NO.877, LAKSHMI GOPALA NIVAS 15^TH CROSS, V V MOHALLA KALLAHALLI, MANDYA-571 401.

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NC: 2023:KHC:36975-DB MFA No. 5171 of 2021

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M/S. CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD., SIGMA COMPLEX NO.C-1, I^ST FLOOR, NEW KANTHARAJA URS ROAD, KUVEMPU NAGAR, MYSORE-570 023.

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…RESPONDENTS

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(BY SRI B PRADEEP, ADVOCATE FOR R3; vide order dated 31.01.2023, Notice to R1 and R2 dispensed with)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 19.06.2020 PASSED IN MVC NO.932/2016 ON THE FILE OF THE JUDGE, PRL. COURT OF SMALL CAUSES, MYSURU AS A PRESIDING OFFICER, MACT, MYSURU, THE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION .

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This is claimant’s appeal against the judgment and

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award passed in M.V.C.No.932 of 2016 on the file of the Principal Judge, Small Causes Court and M.A.C.T., Mysuru (hereinafter referred to as the 'Tribunal', for short) dated 19.06.2020 for enhancement of compensation.

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The parties herein are referred to as per their

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rank before the Tribunal.

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It is the case of claimant/appellant that on 05.11.2015, claimant was riding his motorcycle bearing registration No.KA-04-X-7260 along with pillion rider from Channapattana to his village; on the way he met with an accident near Government School, Kammanahundi Village Kirugavalu Hobli, Malavalli Taluk, due to rash and negligent driving of Eicher Canter bearing registration No.KA-11-A3550 by its driver, as a result of which, claimant had sustained severe injuries. He was shifted to JSS Hospital, Mysuru and admitted as an inpatient. He underwent few surgeries and intensive treatment. Inspite of that, he could not recover, therefore, on 08.01.2016, he underwent surgery for amputation of his right leg below knee.

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The claimant further contended that he has

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spent more than Rs.5 Lakhs to Rs.6 Lakhs towards treatment charges. He was hale and healthy prior to accident and aged about 23 years. He was a Tailor and also agriculturist and earning Rs.20,000/- per month from tailoring and Rs.1 lakh per annum from agriculture. Due to

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permanent disability sustained in the accident, he is unable to do any work and lost his earnings. He has been suffering from disability to an extent of 100%. With these reasons, he prayed to award compensation of Rs.91,80,000/-.

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Respondent No.3/Insurer had appeared before the Tribunal and filed objections. It is contended that accident had taken place due to rash and negligent riding of motorcycle by the claimant. He was not holding valid and effective driving license. Therefore, driver of the Eicher Canter was not at all responsible for the accident. The liability of Respondent No.3 is restricted to terms and conditions of policy of insurance and holding of valid and effective driving license by the driver of the lorry. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal had framed necessary issues.

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The claimant has examined PWs-1 and 2 and got marked Exs.P1 to P16. Respondent No.3 examined RW-1 and got marked RWs-1 and 2.

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The Tribunal, after hearing both the parties and

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on appreciating pleadings and evidence on record, by its impugned judgment and award, awarded compensation of Rs.6,89,500/- with interest. It is also held by the Tribunal that accident had taken place due to composite negligence of claimant as well as driver of the lorry in the ratio of 30:70 respectively. Therefore, directed Respondent No.3 to pay 70% of the compensation awarded, i.e., Rs.6,89,500/- out of Rs.9,85,000/-.

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We have heard the arguments of the learned Advocates for both side. The learned advocate for claimant has vehemently contended that claimant has lead evidence to prove that accident had taken place due to rash and negligent driving of lorry by its driver. However, the Tribunal without any materials held that the claimant was also negligent in riding his two wheeler and his negligence

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was to an extent of 30%. The said finding is erroneous. He h as further submitted that the Tribunal has assessed income of the claimant as Rs.6,000/- per month, which is

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on lower side. The Tribunal has also not assessed disability properly of the claimant. The amount of compensation awarded under the other heads are on the lower side. Therefore, prayed to enhance the amount of compensation and also hold that accident had taken place due to negligence of driver of the lorry.

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The learned advocate for the Insurer has submitted that claimant had no driving license to ride the two wheeler. He has not proved that he is well-versed in riding of the two wheeler. Without license and knowledge, he was riding the two wheeler on public road, which is considered by the Tribunal and rightly held that his contribution for accident at 30%. It does not call for any Interference. He further submitted that the Tribunal has properly appreciated the materials on record and has awarded compensation; it does not call for any interference by this Court.

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Fact of accident, claimant had sustained injuries in the said accident, and amputation of his leg due to

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injuries sustained in the accident are not in dispute. The Tribunal while discussing Issue No.1 held that accident had taken place due to composite negligence of claimant as well as driver of the lorry. The said finding is based on the facts of the case. As submitted by the learned advocate for Respondent No.3, claimant had no license to ride two wheeler, inspite of that, he was riding the vehicle on public road. Under these circumstances, the Tribunal was forced to hold that he had contributed for the accident in question. On the basis of the material available on record, the Tribunal assessed contributory negligence in the ratio of 30:70, i.e., 30% is of the claimant as well as 70% by driver of the lorry. The said finding does not call for any interference by this Court.

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The Tribunal assessed income of the claimant as Rs.6,000/- per month; his disability as 25% to the whole body and his age as 23 years and assessed compensation under the head ‘loss of future earning capacity due to permanent disability’. As stated above, it is not in dispute

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that claimant’s right leg was amputed below knee due to injuries sustained in the vehicle accident. He had taken treatment in multispeciality hospital. The claimant was also aged about 23 years, at the time of accident, which is not in serious dispute. The claimant had not produced any materials on record to believe that he was earning Rs.20,000/- per month by Tailoring and Rs.1 Lakh per annum by agriculture. Therefore, the Tribunal had assessed income of the claimant as Rs.6,000/- per month. The said income assessed by the Tribunal is on the lower side. While settlement of the dispute pertaining to Motor Vehicles Compensation cases in Lok-Adalath, income of victim of an accident of the year 2015 is considered as Rs.9,000/- per month. Same could be applied to the facts of the present case.

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The claimant has lost his right leg below the knee. Considering the evidence of PWs-1 and 2 as well as the Schedule of Workmen’s compensation Act, the disability of claimant affecting his earning capacity could be

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considered as 50% to the whole body, due to loss of right leg below knee, might have seriously affected his earnings.

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Considering these facts, future prospects of 40% is to be added to his Income. It is an admitted fact that the multiplier applicable between age group of 25 to 40 yeas is ‘18’. Therefore, compensation under the head ‘loss of future earning capacity due to permanent disability’ is:

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Income per month	Rs.9,000
Add40% of future
prospects	_Rs.3,600
Total	Rs.12,600

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(Rs.12,600 X 12 X 18 X 50%)= Rs.13,60,800/-.

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Looking to the injuries sustained by the

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claimant, treatment taken by him in multispeciality hospital, undergoing surgeries, etc., the amount of compensation awarded by the Tribunal on other heads are on the lower side. Claimant has lost his right leg below knee. He lost several amenities including marriage prospects. While undergoing treatment, atleast for a period

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of an year, someone might have attended him around the clock. But no amount of compensation is awarded by the Tribunal towards attendant charges. The Tribunal has awarded loss of income during laid up period, which is on lower side. We have re-calculated the income of claimant as Rs.9,000/- per month; atleast for a period of six months, he might not be in a position to attend any work and lost his income during laid up period. Considering all these facts, following amount of compensation is awarded:

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Sl.No.	Particulars	Amount (Rs.)
1	Medical expenses and nourishment	3,87,000
2	Loss of income during laid up period	54,000
3	Pain and suffering	1,00,000
4	Loss of future earning capacity due to permanent disability	13,60,800
5	Loss of amenities	2,00,000
6	Future medical expenses	1,00,000
7	Attendant charges	1,00,000
	Total	23,01,800

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As held by the Tribunal and confirmed by this

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Court, claimant had contributed 30% of negligence and caused the accident. Therefore, he is not entitled for 30%

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of compensation in the above said amount, which amounts to Rs.6,90,540/- and he is entitled for compensation of Rs.16,11,260/- as against Rs.6,89,500/- awarded by the Tribunal.

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Claimant is entitled for enhancement of (Rs.16,11,260-Rs.6,89,500)=Rs.9,21,760/- rounded off to Rs.9,22,000/-.

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For the aforesaid discussion, we pass the following:

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ORDER

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i. The appeal is allowed in part.

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ii. The impugned judgment and award passed by the Tribunal in M.V.C.No.932/2016 dated

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19.06.2020 is modified as under:

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a) The claimant is entitled for compensation of Rs.16,11,500/- (Rupees Sixteen Lakhs Eleven Thousand and Five Hundred only) as against Rs.6,89,500/- awarded by the Tribunal and claimant is entitled for enhancement of Rs.9,22,000/- (Rupees

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NC: 2023:KHC:36975-DB MFA No. 5171 of 2021

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Nine Lakhs Twenty Two Thousand only) with interest at the rate of 6% per annum on the enhanced amount of compensation from the date of petition till its payment.

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b) Respondent No.3 shall deposit the said amount within a period of six weeks from the date of receipt of copy of this order.

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c) Deposit and release of the amount are as ordered by the Tribunal.

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Sd/JUDGE

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Sd/JUDGE

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Sri Mahendra T M v. Sri Shankara M

Case brief

What is this about?

What did the court decide?

Sri Mahendra T M v. Sri Shankara M

Case brief

What is this about?

What did the court decide?

What the court decided

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