Partly allowed

Prabhakar v. Irfan R

Karnataka HC4 Aug 2023MFA/6948/2017

Case brief

AI extract

What is this about?

In an appeal against a Motor Vehicles Award, the High Court enhanced the compensation for an auto driver injured in a road accident. The Court found the Tribunal erred in assessing functional disability and notional income, increasing the award by Rs. 68,038/- along with interest.

What did the court decide?

The appeal is allowed partially; the award is enhanced by Rs. 68,038/- along with interest at 6% p.a. to be paid by the Insurance Company.

Prabhakar Vs Irfan R — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:27533 MFA No. 6948 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 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. 6948 OF 2017 (MV-I)

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BETWEEN:

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PRABHAKAR, S/O. RAJAPPA, AGED ABOUT 28 YEARS, AUTO DRIVER, R/O. 1ST CROSS, 2ND MAIN, BEHIND MARAMMA TEMPLE, CHOLAGUDDA HLK ROAD, CHITRADURGA TOWN-577 501.

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…APPELLANT

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(BY SRI SHASHIDHARA R, ADVOCATE [PH])

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AND:

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IRFAN R,

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

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S/O. SHEIK RASOOL SAB, AGED ABOUT 31 YEARS, OWNER OF LORRY BEARING NO. AP-02/V-4446, R/O. BOMMANAKATTE VILLAGE, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT 577 301.

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SHARAVANA D, S/O. DEVARAJ K, MAJOR, HOLDER OF POLICY FOR LORRY, BEARING REG NO. AP-02/V-4446, R/O. GONDHI CANAL, ASHWATH NAGARA, KABALIKATTE ROAD, BHADRAVATHI, SHIVAMOGGA DISTRICT 577 301.

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NC: 2023:KHC:27533 MFA No. 6948 of 2017

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., OPP: TO JAGALUR MAHALINGAPPA TOWERS, PB ROAD, NEAR KSRTC BUS STAND, CHITRADURGA-577 501.

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…RESPONDENTS

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(BY SRI K POORNABODHA RAO, ADVOCATE FOR R3 [VC]; NOTICE TO R1 & R2 ARE D/W V/O DATED 26.10.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.03.2017 PASSED IN MVC NO.1155/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal by the petitioner is directed against the judgment and award in MVC No.1155/2015 passed by the

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learned Principal Senior Civil Judge and CJM and Additional MACT, Chitradurga, dated 03-03-2017, whereby, compensation of Rs.1,06,638/- has been awarded.

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The petitioner- Prabhakar, contended that on 04-05-2015 in the evening to unload the bricks from lorry

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at Janukonda, he along with other petitioners in the connected matters were travelling in an autorikshaw bearing registration No. KA-16-A-6502, which was driven

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3 - NC: 2023:KHC:27533 MFA No. 6948 of 2017

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by petitioner himself at about 9-30 pm, when they came near SR Petrol bunk, NH-13, Chitradurga, the driver of the lorry bearing Reg.No.AP-02-V-4446 came in a rash and negligent manner and dashed to the front side of auto rickshaw, resulting in auto rickshaw falling down and the petitioner and others sustained injuries. Petitioner took treatment at District Government Hospital, Chitradurga, and spent amount of Rs.2,00,000/- towards medical expenses. It was further contended that petitioner was working as an auto driver and Hamali earning Rs.20,000/-

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per month, now due to accidental injuries he has suffered permanent disability. The accident occurred due to rash and negligent driving by the driver of Lorry bearing registration No.AP-02-V-4446 and the respondent Nos.1 to 3 being RC owner, policy holder and insurer of the said lorry, are jointly and severally liable to pay the adequate compensation.

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After service of summons by the Tribunal, respondent No.1 and 2 were placed exparte in the present

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4 - NC: 2023:KHC:27533 MFA No. 6948 of 2017

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petition and in the connected petitions, respondent Nos. 1 to 3 appeared through their counsel. Respondent Nos.1

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and 3 filed objections, denying the mode of accident, age, occupation, income, injuries, expenditure, treatment and period of treatment and contended that accident has not occurred due to any rash and negligent act of the driver of the offending lorry. The respondent No.1 contended that, he is the owner of the offending vehicle lorry, the driver of the said lorry was having valid and effective driving licence on the date of accident, said lorry was insured with respondent No.3 and the policy was in force as on the date of accident, there is no any violation of terms and condition of policy, hence, he prayed to dismiss the petition against him.

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The respondent No.3-Insurance Company denied the involvement of the lorry and contended that the said lorry had not been insured with it and due to rash and negligent driving by the driver of the auto rickshaw, the alleged accident took place, the driver of the auto rickshaw

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5 - NC: 2023:KHC:27533 MFA No. 6948 of 2017

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was not holding driving licence and he came in a rash and negligent manner, and he is also contributed to the alleged accident. The owner and insurer of the auto rickshaw have not been impleaded and the petition is bad for non joinder of necessary parties. It also contended that the driver of the lorry was not having valid driving licence and the terms and conditions of policy are violated. The compensation claimed by the petitioner is highly excessive, exorbitant and prayed to dismiss the petition.

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The Tribunal on the basis of the above pleadings, framed appropriate issues and the petitioner was examined as PW1 and the petitioners in connected petitions were examined as PWs 2 to 4 and the Doctor has been examined as PW5 and Exs.P1 to P15 were marked in evidence. On behalf of respondents one witness was examined as RW1 and one document is marked as Ex.R1.

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After hearing the arguments the Tribunal awarded compensation of Rs.1,06,638/- under the following heads:

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NC: 2023:KHC:27533 MFA No. 6948 of 2017

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1. Towards pain and sufferings	Rs.35,000/-
2. Towards medical expenses	Rs.6,638/-
3. Towards conveyance, food and nourishment	Rs.3,000/-
4. Towards loss of future earning capacity due to disability	Rs.40,000/-
5. Towards loss of amenities and unhappiness	Rs.15,000/-
6. Towards loss of income during laid down period	Rs.7,000/-
Total	Rs.1,06,638/-

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Being aggrieved by the judgment and award, the petitioner has approached this Court in appeal.

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On issuance of notice, the respondent No.3Insurance Company has appeared through its counsel and notice to the respondent Nos. 1 and 2 was dispensed with.

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Heard the learned counsel appearing for the petitioner and learned counsel appearing for Insurance Company through VC and perused the Tribunal records.

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The learned counsel appearing for the petitioner-

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appellant contended that the compensation awarded by

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the Tribunal is not proper and it has not considered the

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notional income of the petitioner in proper perspective and the compensation awarded under other heads are also abysmally low. It is contended that the contemporaneous market rates and the wages are not considered by the Tribunal while awarding the compensation. He also contended that the Tribunal erred in fastening 20% of the negligence on the petitioner.

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Per contra, learned counsel appearing for the respondent-Insurance Company contends that the Tribunal has assessed the compensation in the right perspective and there is no need for enhancement of the compensation. He also contends that the contributory negligence is also properly considered by the Tribunal.

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The fact that there was an head on collision between the auto rickshaw and the lorry and that the petitioner was the driver of the auto rickshaw are not in dispute. The Tribunal has relied upon the spot mahazar and the MVI report in holding that there was contributory negligence to the extent of 20%. It had rejected the

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contention of the insurance company that negligence to the extent of 50% be attributed to the petitioner. The auto rickshaw being a smaller vehicle, the offending lorry being a heavy goods vehicle, the standard of caution to have been exercised by the lorry driver is on the higher side. So also, the fact that the driver of the auto rickshaw was not having a valid driving licence cannot be a sole ground to attribute negligence on his part, without there being a prima facie negligence in driving the vehicle. Having regard to the fact that it was a head on collision, negligence to the extent of 20% attributed to the petitioner is proper and correct.

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The petitioner had suffered fracture of tibia and fibula of the left leg, abrasion over the left hand and bleeding from the mouth as a result of fracture of the mandible. He had taken treatment at Yenepoya Medical College Hospital, Mangalore, and was inpatient for seven days. The petitioner was aged 28 years at the time of the accident.

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The evidence of PW.5 shows that he had assessed the disability and had issued the disability certificate as per Ex.P11. He opined that there is permanent disability of 18% to the left lower limb. The Tribunal holds that the disability is minimal and is not going to affect the functionality of the petitioner as a driver. It appears that the Tribunal failed to note that the disability to the lower limb results in reduced functionality of a driver of the vehicle. Therefore, it is clear that the Tribunal erred in not considering the physical disability of

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the petitioner with respect to functional disability of the petitioner. In the considered opinion of this Court, the functional disability of the petitioner is 6%.

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The Tribunal has held that the notional income of the petitioner is Rs.7,000/- per month in the absence of cogent evidence regarding the actual income of the petitioner. The guidelines issued by the KSLSA for settlement of disputes before the Lok Adalat prescribe a notional income of Rs.9,000/- per month for the year

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In umpteen number of decisions and also in the case of Smt. Mariyamma Vs. Suyambulingam V and another,¹ the Division Bench of this Court has held that the guidelines issued by KSLSA are in general conformity with the wages fixed under the Minimum Wages Act. Hence, the loss of future income on account of disability is calculated as Rs.9,000/- x 12 -x 17 x 6%=1,10,160/-.

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As a consequence, the loss of income during the laid up period is calculated as Rs.27,000/- (9,000/- x 3) by taking laid up period as three months.

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The Tribunal has awarded a sum of Rs.35,000/under the head of pain and sufferings. Having regard to the two fractures suffered by the petitioner, the same is enhanced to Rs.45,000/-.

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The Tribunal has awarded a sum of Rs.3,000/towards conveyance, food and nourishment and the same is enhanced to Rs.10,000/- by considering the fact that he was inpatient for 7 days.

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1 MFA No.7404/2014 DD 6-12-2022

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The compensation under the head of 'loss of amenities in life' awarded by the Tribunal is on the lower side and therefore, the same is enhanced to Rs.20,000/-.

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20 . Thus, the petitioner is entitled for a total

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compensation of Rs.2,18,798/- as below:

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1.	Towards painand sufferings	Rs. 45,000/-
2.	Towardsmedicalexpenses	Rs.6,638/-
3.	Towards conveyance, food and nourishment	Rs. 10,000/-
4.	Towards loss of future earning capacity due to disability	Rs.1,10,160/-
5.	Towards loss of amenities and unhappiness	Rs. 20,000/-
6.	Towards loss of income during laid down period	Rs. 27,000/-
	Total	Rs.2,18,798/-
	Less: 20% negligence	Rs. 43,760/-
	Less: awarded by Tribunal Enhancement	Rs.1,75,038/- Rs.1,06,638/-
		Rs. 68,038/-

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Thus, the petitioner is entitled for a enhanced compensation of Rs.68,038/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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12 -

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NC: 2023:KHC:27533 MFA No. 6948 of 2017

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(ii) The impugned judgment and award passed by the Tribunal is modified by awarding enhanced

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compensation of Rs.68,038/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization.

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(iii) The respondent No.3-Insurance company is directed to deposit the compensation amount within four weeks from today.

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(iv) Rest of the order of the Tribunal remains unaltered.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 6

Prabhakar v. Irfan R

Case brief

What is this about?

What did the court decide?

Prabhakar v. Irfan R

Case brief

What is this about?

What did the court decide?

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