Allowed

Jayanna B B v. Mukthar Pasha

Karnataka HC26 Jul 2023MFA/6658/2017

Case brief

AI extract

What is this about?

Motor Accident Claim Appeal by a pillion rider who was injured in a collision where the motorcycle rider was held negligent. The Court held the pillion rider had no negligence, allowed the appeal, and directly assessed compensation at Rs. 1,50,800/-.

What did the court decide?

Compensation of Rs. 1,50,800/- awarded with interest at 6% p.a. from the date of petition till deposit; respondent insurer directed to deposit within eight weeks.

Jayanna B B Vs Mukthar Pasha — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:26593 MFA No. 6658 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 6658 OF 2017 (MV-I)

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BETWEEN:

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JAYANNA B B, S/O. BOMMAIAH, AGED ABOUT 43 YEARS, R/O BELURE VILLAGE, MANDYA TALUK & DIST-571 407.

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…APPELLANT

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(BY SRI SREENIVASAN M Y, ADVOCATE)

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AND:

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MUKTHAR PASHA, S/O. CHOTASAB, MAJOR,

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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R/AT: 2426, TAVAREGERE, MANDYA CITY 571 403.

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THE MANAGER (LEGAL), NATIONAL INSURANCE CO. LTD., 1ST FLOOR, NO.1576, P B NO.54, V V ROAD, MANDYA 571 401.

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…RESPONDENTS

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(BY SRI V SHRIHARI NAIDU, ADVOCATE FOR R2; R1 SERVED BUT UNREPESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.10.2016 PASSED IN MVC NO.167/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA, DISMISSING THE CLAIM PETITION FOR 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 appeal arises out of the judgment and award in MVC.No.167/2013 dated 21.10.2016 passed by the learned I Additional Senior Civil Judge and CJM, Mandya, whereby, the claim petition filed by the appellant herein was dismissed.

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The petitioner/appellant contended that he was pillion rider on a motorcycle driven by the petitioner in MVC.No.168/2013. It is stated that while they were riding the motorcycle bearing registration No.KA-11/S-3306 towards Belur, a lorry bearing registration No.KA-01-0945 came from the opposite direction in rash and negligent manner and collided with the motorcycle, as a result, they fell down and the rider as well as the petitioner herein sustained injuries in the said accident and they were shifted to MIMS Hospital, Mandya. The petitioner was inpatient for nine days and thereafter, he took follow up treatment. It was contended that the petitioner

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has sustained permanent disability, he was aged about 39 years as on the date of accident and working as a Coolie earning Rs.8,000/- per month.

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On issuance of notice, the owner and insurer of the lorry appeared before the Tribunal and the owner of the lorry i.e., respondent No.1 contended that the vehicle was insured with respondent No.2 and any liability may be fastened upon it.

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Respondent No.2-Insruance Company contended that the accident occurred due to the negligence on the part of the rider of the motorcycle and therefore, the insurer of the motorcycle was also a necessary party to the petition. It was contended that the compensation claimed is highly exorbitant, imaginary and untenable in law and the terms and conditions of the policy were violated by the driver of the lorry.

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The petitioner in MVC.No.167/2013 was examined as PW.1 and Exs.P1 to P15 were marked. The Doctor who assessed the disability of the petitioner was examined as CW.1 and Exs.C1 to 7 were marked. The respondent No.2 examined its official as RW.1 and Exs.R1 to R7 were marked.

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After hearing both the sides, the Tribunal framed appropriate issues and passed the impugned judgment, whereby, both the claim petition were dismissed on the ground that there was negligence on the part of the rider of the motorcycle but not on the part of the driver of the lorry.

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Being aggrieved by the said judgment and award, the petitioner in MVC.No.167/2013 is before this Court in appeal.

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On issuance of notice, respondent No.2 appeared before this Court through its counsel. Respondent No.1 did not appear despite service of notice. The trial Court records have been secured after the appeal was admitted.

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Heard the learned counsel appearing for the appellant. None appears for the respondent No.2-Insurance Company.

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Learned counsel appearing for the appellant would submit that the Tribunal having come to the conclusion that the accident was on account of the negligence on the part of the rider of the motorcycle, could not have dismissed the claim

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petition filed by the pillion rider. The analogy that was applied to the petition filed by the rider of the motorcycle could not have been applied to the petition filed by the pillion rider who is appellant herein. Secondly, he submitted that the Tribunal has not answered the issue in respect of the assessment of the compensation. Therefore, he contends that the impugned judgment and award insofar as dismissing the petition of the appellant herein is not sustainable in law.

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It is the case of the petitioner herein that he was a pillion rider on the motorcycle which was driven by one Ananda B.C. who is petitioner in MVC.No.168/2013. It was his case that the lorry came from the opposite direction and collided with the motorcycle and therefore, he sustained injury in the accident. The petitioner has produced FIR, sketch and other Police papers at Exs.P1 to P6. These documents would show that after investigation, the police have filed the charge sheet against the driver of the lorry as well as the rider of the motorcycle. A perusal of the Police papers coupled with the judgment of the Criminal Court in C.C.No.797/2010 show that the lorry driver was convicted and rider of the motorcycle was acquitted by the Criminal Court. Of course, the conclusions reached by the

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Criminal Court are not binding on the Tribunal in assessing the actionable negligence. It is pertinent to note that the Tribunal while considering the issue No.1 has come to the conclusion that the accident was due to the negligence on the part of the rider of the motorcycle. It holds that on the basis of the principle res ipsa loquitur, it is clear that the rider of the two wheeler was at fault. Therefore, there being a head on collision, it did not find any negligence on the part of the driver of the lorry. It is evident that the Tribunal had not bestowed its attention on the judgment of the Criminal Court in C.C.No.797/2010.

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It is the case of the petitioner that he was a pillion rider of the motorcycle. While discussing about the negligence under issue No.1, the Tribunal has observed as below:

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"But it is clear that the accident was on account of negligence of PW2 as well. PW2 also had admitted that he was riding the motor cycle. Therefore the materials available would clearly implicate the rash and negligence as against the petitioner of MVC 168/2013. Under such circumstances the issue is to be held in the negative. The petition in MVC 167/2013 also fails on facts that the petitioner was a pillion rider on the motor cycle the rider of which was cause for the accident and no allegation was made against the rider. According to the petitioners the

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NC: 2023:KHC:26593 MFA No. 6658 of 2017

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driver of the lorry who had acted in rash and negligent manner which is not proved by the petitioners. And therefore two petitions were failed and accordingly the issue no.1 in the two cases are answered in the negative."

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Thus, it is evident from the above observation of

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the Tribunal that it had lost sight of the fact that the petitioner herein was contending a composite negligence. It was not the case of the contributory negligence so far as the petitioner/appellant herein is concerned. The appellant herein was the petitioner in MVC.No.167/2013 and was examined as PW.1, had nothing to do with the contribution of any negligence in the said accident.

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The decision of this Court in the case of GANESH VS. SAYED MUNNED AHMED AND OTHERS¹ which was reiterated later by a Full Bench of this Court in K.S.R.T.C. VS. ARUN @ ARVIND AND OTHERS² lays down that a person who is injured and had no role in contributing any negligence would be at liberty to go against any one of the tortfeasor. The question of non-joinder of necessary party would not arise at all. Subsequently, the above decision of Full Bench of this Court

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1 ILR 1999 KAR 403

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2 AIR 2004 KAR 26

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was again upheld by the Hon'ble Apex Court in the case of

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KHENYEI VS. NEW INDIA ASSURANCE COMPANY

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LIMITED AND OTHERS³ . Thus, in view of the above conclusive pronouncements in respect of the composite negligence, the Tribunal has erred in dismissing the claim petition filed by the appellant herein.

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It is also necessary to note that when the Tribunal dismissed MVC.No.168/2013 on the ground rider of the motorcycle had contributed the negligence fully, it was not justified in applying the same principle to the petition filed by the appellant herein. Obviously he had no role to play in contributing any negligence to the accident. Hence, the respondent No.2 being the insurer of the lorry owned by respondent No.1 was liable to pay compensation to the petitioner.

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Learned counsel for the appellant has rightly pointed out that the Tribunal should have answered the issue No.2 regarding the compensation. It is submitted by the learned counsel for the appellant that the matter may be

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3 (2015)9 SCC 273

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remanded to the Tribunal for assessment of the compensation. I am unable to accept this argument for the simple reason that this Court being the First Appellate Court is empowered to look into the evidence available on record and appreciate the same. Hence, the evidence on record need to be considered by this Court and the compensation is to be assessed.

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A perusal of the wound certificate produced by the petitioner at Ex.P7, the discharge summery produced at Ex.C7 and case sheet produced at Ex.C1 and also the evidence of CW.1 would show that the petitioner had sustained fracture of left fibula, he was inpatient for a period of 09 days in MIMS Hospital, Mandya. The nature of the treatment was conservative, however, CW.1 states in his evidence that the petitioner had sustained the disability of 21% to the limb. CW.1-Dr.Puttaswamy Gowda do not mention anything about the whole body disability. It is pertinent to note that no documentary evidence is available on record in order to ascertain the occupation of the petitioner. He submits that he was an agriculturist and working as coolie. As per the petition, he is aged 39 years. Therefore, the appropriate multiplier would be '15'. There being no documentary evidence in order to

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ascertain the income of the petitioner, the notional income has to be considered by this Court. For the year 2010, the notional income would be Rs.5,500/- per month as per the guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat. Such guidelines have been upheld by this Court to be in general conformity with the wages fixed under the Minimum Wages Act.

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Considering the nature of the injuries suffered by the petitioner and the disability as stated by the CW.1 regarding the left lower limb, the functional disability of the petitioner is taken at 7%. Hence, the compensation needs to be assessed under different heads. So far as the compensation under the head of 'future loss of income' is concerned, the same is calculated as Rs.5,500/- X 12 X 15 X 7% = Rs.69,300/-.

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In view of the fracture of the fibula of the left lower limb, the petitioner is entitled for a sum of Rs.30,000/- under the head of 'pain and suffering.

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The petitioner was inpatient for a period of 09 days and it can safely be said that he was unable to resume his work

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at least for a period of 3 months. Hence, a sum of Rs.16,500/(Rs.5,500/- X 3) is awarded to him under the head of 'loss of income during the laid up period'.

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The petitioner has to carry the disability and the discomfort for the rest of his life. Hence, a sum of Rs.20,000/is awarded to the petitioner under the head of 'loss of amenities in life'.

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The petitioner has not produced any medical bills showing the expenses he has incurred towards his treatment. Hence, by making a conservative assessment and also noting that the petitioner had taken treatment at Government Hospital, a sum of Rs.5,000/- is awarded to him under the head of 'medical expenses'.

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Considering the nature of the injuries and the period of inpatient treatment, a sum of Rs.10,000/- is awarded to the petitioner under the head of 'food, nourishment, attendant and conveyance charges etc.'.

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Thus, the petitioner is entitled for a total compensation under different heads as below:

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NC: 2023:KHC:26593 MFA No. 6658 of 2017

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PARTICULARS	AMOUNT (IN RS.)
Future loss of income	69,300/-
Pain and suffering	30,000/-
Loss of income during laid up period	16,500/-
Loss of amenities in life	20,000/-
Medical expenses	5,000/-
Food, nourishment, attendant and conveyance charges etc.	10,000/-
TOTAL	1,50,800/-

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Thus, the petitioner is entitled for a total

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compensation of Rs.1,50,800/- with interest and therefore, the

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appeal deserves to be allowed. Hence, the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment and award passed by the

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Tribunal is set aside by awarding total compensation of a sum of Rs.1,50,800/- along with interest at 6% p.a. from the date of petition till its deposit before the Tribunal.

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(iii) The respondent No.2/Insurance company is directed to deposit the entire compensation amount within a period of eight weeks from the date of this order.

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(iv) In the event of deposit of compensation amount,

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entire amount is ordered to be released to the claimant.

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Sd/JUDGE

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NR/List No.: 1 Sl No.: 90

Jayanna B B v. Mukthar Pasha

Case brief

What is this about?

What did the court decide?

Jayanna B B v. Mukthar Pasha

Case brief

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