Partly allowed

Dinesh N v. Sri. Nanda Kumar v

Karnataka HC19 Dec 2023MFA/93/2017

Case brief

AI extract

What is this about?

This miscellaneous first appeal by a motor accident claimant sought enhanced compensation. The High Court affirmed contributory negligence at 50% but enhanced the award for loss of amenities and future income, setting aside the lower tribunal's order.

What did the court decide?

Compensation enhanced to Rs.21,94,120/-; respondent insured to pay 50% (Rs.10,97,060/-) with interest at 6% p.a.; future prospectus awarded at 40%.

Dinesh N Vs Sri. Nanda Kumar v — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 93 OF 2017 (MV-I)

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BETWEEN:

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DINESH N, AGED ABOUT 37 YEARS, S/O NAGARAJU K, R/AT 95, 3RD CROSS ROAD, KAVERI LAYOUT, G.M. PALYA, BENGALURU - 560 075.

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DUE TO HEAD INJURY AND MULTIPLE ACCIDENTAL INJURIES, THE PETITIONER IS NOT IN A POSITION TO UNDERSTAND REPRESENTE BY HIS WIFE/ NATURAL GUARDIAN/NEXT FRIEND.

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

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SMT. SOWMYA DINESH, W/O. DINESH N, AGED ABOUT 33 YEARS, R/AT 95, 3RD CROSS ROAD, KAVERI LAYOUT, G M PALYA, BENGALURU - 560 075. (BY SRI. GIRISH, ADVOCATE)

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…APPELLANT

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AND:

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SRI. NANDA KUMAR V, MAJOR, S/O. VASUDEVA MUDALIAR, R/AT 10-975, GOKULAM STREET, CHITTOR, ANDHRA PRADESH.

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THE BRANCH MANAGER, SRIRAM GENERAL INSURANCE CO. LTD.,

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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NO. 05, MONARK CHAMBERS, INFANTRY ROAD, BENGALURU - 560 001.

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SMT. MITHUNA, MAJOR, W/O. C J BHANUPRAKASH, NO. 688/1, GROUND FLOOR, MASZID ROAD, KODIHALLI, BENGALURU - 560 038.

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THE BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., NO. 41, II FLOOR, CRISTU COMPLEX, LAVELLE ROAD, BENGALURU - 560 001.

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…RESPONDENTS

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(BY SRI. B PRADEEP, ADVOCATE FOR R2; SRI. B.C. SHIVANNA GOWDA, ADVOCATE FOR R4; R1 AND R3 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.06.2016 PASSED IN MVC NO.6908/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Aggrieved by the award passed in

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M.V.C.No.6908/2012 dated 20.06.2016 by the III Addl.

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-18), the present appeal is filed by the claimants seeking enhancement of the compensation.

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The case of the claimants is that on 01.11.2012,

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the claimant was driving the car and when the car reached near the flyover, the driver of the lorry drove the same in a rash and negligent manner and suddenly applied the brake. Due to the said act of the driver of the lorry, the driver of the car was unable to control the car and hit to the lorry. Due to the said impact, the claimants and others had sustained simple as well as grievous injuries and they were shifted to Axon hospital, Bangalore, wherein they have taken treatment.

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As per the evidence, the police have filed charge

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sheet on the driver of the lorry as well as the driver of the car i.e., the claimant herein. The Insurance Company in

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support of their case had examined RW.1 and RW.2. Considering the same, the Tribunal had held that there is

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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50% contributory negligence on the part of the claimant as well as the driver of the lorry and apportioned the same

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at 50% on both. When it comes to the injuries, the claimant had sustained as many as six fractures and according to him, he was working as a driver and earning an amount of Rs.10,000/-. As there was no evidence, the Court below had taken the income at Rs.7,000/-. The doctor had assessed the whole body disability at 75.8% and the Tribunal had considered the disability at 70% and granted the compensation under various heads. Altogether, the Tribunal had granted compensation of an amount of Rs.17,48,000/-. As 50% negligence was fixed on the claimant, the Insurance Company was directed to pay an amount of Rs.8,74,000/-.

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Learned counsel for the appellant/claimant

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submits that the Court below ought not to have fixed the contributory negligence on the claimant. It is submitted that there is no such negligence on the part of the claimant. It is further submitted that in a case filed under

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Section 166 of the Motor Vehicles Act, even when there is a contributory negligence on the part of the claimant himself, considering the case of the employee, under the provisions of the Employees’ Compensation Act , the Court below ought to have granted the compensation. For that purpose, he has relied on two judgments, one is the case of Jaya Biswal and Others Vs. Branch Manager, Iffco

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Tokio General Insurance Co. Ltd.¹ . He had relied on another judgment of the Andhra Pradesh High Court in the case of Adhikarala Jagadeeswara Rao vs. Gopala

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Krishna Transport and Others² . Basing on this, learned counsel for the claimant submits that even if this Court comes to the conclusion that there is 50% contributory negligence on the part of the employee i.e., the claimant and the accident had happened during the course of his employment, the Court has to compensate the claimant as per the provisions of the Employees Compensation Act as far as the owner of the vehicle is concerned.

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1 AIR 2016 SC 956

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2005 (1) ALD 111

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5. When it comes to the compensation, learned

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counsel for the claimant submits that when the doctor had deposed that he had sustained disability of 75.8%, the Court below ought not to have taken 70% as the disability. Further, no future prospectus was considered by the Court below. He submits that for the loss of amenities and attendant charges and for the pain and suffering, the amount that was granted by the Court below was not reasonable. It is submitted that the compensation that was granted by the Tribunal is not a just and reasonable compensation.

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6. Learned counsel appearing for the Insurance Company submits that the Court below had rightly taken the income and disability and granted the compensation and no grounds are made out seeking enhancement of the compensation. When it comes to granting the compensation under the Employees Compensation Act and in an application filed under Section 166 of the Motor

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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Vehicles Act, learned counsel submits that, that itself is contrary to Section 167 of the Motor Vehicles Act. Once a person makes an application under the Motor Vehicles Act, he cannot maintain a simultaneous application under the other Act. In such case, question of granting the relief under the Employees Compensation Act in an application filed under the Motor Vehicles Act will not arise.

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7. First, coming to the quantum of compensation, the Tribunal under the head of pain and suffering, medical bills, loss of income, future medical expenses had granted reasonable compensation basing on the evidence on record. Then coming to the nourishment, conveyance and attendant charges , considering the hospitalization, this Court is granting an amount of Rs.25,000/- . Then coming to the loss of amenities, granting an amount of Rs.50,000/- is on the lower side. Considering the injuries, this Court is granting an amount of Rs.1,00,000/- towards loss of amenities . Then coming to the loss of future income, the Court below had taken 70% disability

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and had not granted future prospectus. Hence, future prospectus at 40%, it comes to Rs.9,800x12x16x70/100 =

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Rs.13,17,120/- towards loss of future income .

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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 claimant is entitled for an amount of Rs.10,000/- towards legal expenses . Altogether, the claimant is entitled for an amount of Rs.21,94,120/- .

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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		C	ompensation Awarded
1.	Pain and suffering	:	Rs.	1,25,000/-
2.	Medical bills	:	Rs.	5,59,000/-
3.	Conveyance, attendant charges and nourishment	:	Rs.	25,000/-
4.	Loss of income during the laid up period	:	Rs.	28,000/-

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3 (2014) 11 SCC 178

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NC: 2023:KHC:46405 MFA No. 93 of 2017

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5.	Loss of amenities	: Rs.	1,00,000/-
6.	Future medical expenses	: Rs.	30,000/-
7.	Loss of future income	: Rs.	13,17,120/-
8.	Legal Expenses	: Rs.	10,000/-
	TOTAL	: Rs.	21,94,120/-

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As far as the contributory negligence is

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concerned, the police records and the evidence on record shows that there is contributory negligence on the part of the driver of the vehicle, as such this Court finds no reason to interfere, the Court below had rightly apportioned the same at 50% on the claimant and 50% on the driver of the offending vehicle.

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Coming to the submissions made by the learned

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counsel for the claimant that when a petition is filed under Section 166 of the Motor Vehicle Act, the Court has to also consider the case of the employee under the Employees Compensation Act, the liability of the employer and decide the compensation. As far as the judgment of the Apex

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Court is concerned, that judgment arises out of Employees Compensation Act and the Hon’ble Apex Court has not laid down any such ratio in the said judgment and the same is not useful for the claimant. When it comes to the judgment of the Andhra Pradesh High Court, learned Judge had observed that:

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"Hence, I feel that when two vehicles are involved in an accident and the driver of one vehicle is responsible for causing the accident, it will be fair to work out the compensation payable to the injured person of the other vehicle, by treating him as a third party and thereafter, ascertain the liability of his employer to pay compensation under Workmen's Compensation Act. Then, the Tribunal should pass an award directing the insurer with which the vehicle involved in the accident is insured to pay compensation to the employee of the insured who is nowhere responsible for causing the accident under Workmen's Compensation Act and the rest of the claim has to be fastened on the insurer of the vehicle that caused the accident due to rash and negligent driving of the vehicle by its driver. In other words, after ascertaining the compensation, the Tribunal shall direct the insurers of both the vehicles to pay compensation as per their liability. I am constrained to take this view keeping in mind the liability of the owner of the vehicle to pay compensation to his employee without reference to

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any negligence on his part, as per the provisions of the Workmen's Compensation Act, is retained in tact under the provisions of M.V.Act. Otherwise, it will be burdensome for the Insurance Company to satisfy the claim of the third party as well as the employee of the tortfeasor. In case of contributory negligence also, after ascertaining the compensation payable under the provisions of the Motor Vehicles Act, the compensation payable by the employer to his employee under Workmen's Compensation Act has to be worked out and the award has to be apportioned between both the insurers. By virtue of this judgment, the Tribunal constituted under the Motor Vehicles Act has to pass an award under the provisions of the Motor Vehicles Act and also an award under Workmen's Compensation Act in case of an employee covered under proviso to Section 147(1) the Motor Vehicles Act and apportion the compensation as directed above. This issue is answered accordingly."

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The learned Judge in the above said paragraphs

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had observed that the Court has to work out the compensation under the Employees Compensation Act. This Court is not able to agree with the said finding in the said judgment of the learned Judge of the Andhra Pradesh, when there is clear embargo under Section 167 of the Motor Vehicles Act for making the claims. When the Act

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itself makes it clear that workman is entitled for compensation either one of the act, in such a scenario, considering the case of the claimant under the Workmen Compensation Act half and Employees compensation Act on the other half do not arise. Hence, this Court finds no force in the argument of the learned counsel for the appellant.

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Accordingly, the appeal of the claimant is allowed-in-part , by enhancing the compensation from an amount of Rs.17,48,000/to an amount of Rs.21,94,120/- setting aside the award passed in M.V.C.No.6908/2012 dated 20.06.2016. The respondent No.2 – Insurance Company is directed to pay an amount

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of Rs.10,97,060/- i.e., 50% of Rs.21,94,120/-

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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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NC: 2023:KHC:46405 MFA No. 93 of 2017

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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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MEG List No.: 1 Sl No.: 52 CT: BHK

Dinesh N v. Sri. Nanda Kumar v

Case brief

What is this about?

What did the court decide?

Dinesh N v. Sri. Nanda Kumar v

Case brief

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What did the court decide?

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