Partly allowed

Anand S/O. Shettappa Jattennavar v. the Divisional Manager

Karnataka HC30 Oct 2023MFA.CROB/743/2012

Case brief

AI extract

What is this about?

The High Court modified the Tribunal's award finding composite negligence shared equally by the autorickshaw and bus drivers. The Court reassessed compensation components, applying Supreme Court guidelines for loss of future prospects, and awarded the claimant 50% of the recalculated total along with interest.

What did the court decide?

Claimant awarded 50% of recalculated compensation of Rs.2,83,940/- with interest at 6% p.a.; impugned judgment modified.

Anand S/O. Shettappa Jattennavar Vs the Divisional Manager — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:12665 MFA No. 22655 of 2011 C/W MFA.CROB No. 743 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.22655/2011(MV) C/W MFA CROSS OBJECTION NO.743/2012(MV)

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IN MFA.NO.22655/2011:

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BETWEEN:

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THE DIVISIONAL MANAGER, KARNATAKA STATE ROAD TRANSPORT CORPORATION, N.W.K.R.T.C. BELAGAVI DIVISION, BELAGAVI, R/BY MANAGING DIRECTOR, N.W.K.R.T.C. CENTRAL OFFICE, GOKUL ROAD, HUBBALLI, (OWNER AND INSURER K.S.R.T.C. BUS NO.KA-22/F-1158).

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…APPELLANT

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(BY SRI MADANMOHAN M. KHANNUR, ADVOCATE)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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SRI ANAND SHETTEPPA JATTENNAVAR, AGE: 28 YEARS, OCC: COOLIE IN TEMPO, NOW NIL, R/O: CHUNCHNOOR, TQ: RAMDURGA, BELAGAVI.

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SHRI RUDRANAYAK YELLAPPA PATIL, AGE: MAJOR, OCC: BUSINESS, R/O: UJJANKOPPA, TQ: RAMDURGA, DIST: BELAGAVI. (OWNER OF GOODS TOM VEHICLE, NO.KA-24/3241).

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, MARUTI GALLI, BELAGAVI. …RESPONDENTS

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(BY SRI HANAMANT R. LATUR, ADVOCATE FOR R1; SRI R.R.MANE, ADVOCATE FOR R3; R2 IS SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE, JUDGMENT AND AWARD PASSED BY THE JUDGMENT AND AWARD PASSED BY THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI IN MVC NO.1645/2008 DATED 30.10.2010.

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IN MFA.CROB.NO.743/2012:

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BETWEEN:

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SRI ANAND S/O. SHETTEPPA JATTENNAVAR, AGE: 28 YEARS, OCC: COOLIE IN TEMPO, NOW NIL, R/O: CHUNCHNOOR, TQ: RAMDURGA, BELAGAVI.

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…CROSS OBJECTOR

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(BY SRI HANAMANT R. LATUR, ADVOCATE)

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AND:

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THE DIVISIONAL MANAGER, KARNATAKA STATE ROAD TRANSPORT CORPORATION, N.W.K.R.T.C. DIVISION BELAGAVI, BELAGAVI.

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RUDRANAIK YELLAPPA PATIL, AGE: 50 YERS, OCC: BUSINESS, R/O: UJJANKOPPA, TQ: RAMDURGA, DIST: BELAGAVI.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, MARUTI GALLI, BELAGAVI.

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…RESPONDENTS (BY SRI M.M.KHANNUR, ADVOCATE FOR R1; SRI R.R.MANE, ADVOCATE FOR R3; NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA CROSS OBJECTION IN MISCELLANEOUS FIRST APPEAL NO.22655/2011 IS FILED UNDER ORDER 41 RULE 22 OF C.P.C. R/W SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO AGAINST THE JUDGMENT AND AWARD DATED 30.10.2010, PASSED IN MVC NO.1645/2008 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE

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CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEAL AND MFA CROSS OBJECTION, COMING ON FOR DICTATING JUDGEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.22655/2011 is filed by the Insurance Company against the Judgment and Award dated 30.10.2010 in MVC No.1645/2008 passed by the II Addl. Senior Civil Judge and Addl. MACT, Belgaum, by the NWKRTC questioning entire rashness and negligence aspect fastened on the driver of the bus.

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MFA CROB No.743/2012 is filed by the claimant seeking enhancement of compensation.

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The factum of the accident, claimant sustaining injuries are not disputed.

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Heard the learned counsel from both sides.

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It is the case of claimant that he was traveling in

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the goods autorickshaw as Coolie from Saundatti to Chunchnoor on 11.09.2007 and after completion of Coolie

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work, while returning to Saundatti, at that time, the driver of the said goods autorickshaw was driving the same with

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high speed and in a rash and negligent manner and due to which, the claimant was thrown out from the autorickshaw and at the same time, the NWKRTC bus No.KA-22/F-1158 was coming on the road and also with high speed and in a rash and negligent manner from Munavalli side without having switched on head lights and ran over on the left leg of the claimants, due to which, the claimant sustained grievous injuries. Therefore, filed a claim petition for compensation and the Tribunal has awarded compensation entirely fastening the liability on the NWKRTC bus. The argument for the NWKRTC is that both the drivers of the vehicles were rash and negligent, but fastening the entire rashness and negligence on the driver of the bus, is not correct. Therefore, prays for modification of the order.

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The counsel for the cross objector prays for enhancement of compensation.

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The counsel for the respondent-Insurance Company justified the Judgment and Award of the Tribunal.

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The Tribunal has fastened the entire liability on the driver of NWKRTC bus. It is the case of the claimant that while he was traveling in the goods autorickshaw, the driver was driving the goods autorickshaw with high speed and in a rash and negligent manner and claimant was thrown out from the goods autorickshaw. At that time, the KSRTC bus came and ran over on the left leg of the claimant. This allegation is made in the complaint given before the Police as per Ex.P1 and Ex.P2. The Tribunal has just swayed away by the gist of the charge sheet that in the charge sheet, entire rashness and negligence is attributed on part of the driver of the KSRTC bus. Accordingly, fastened entire rashness and negligence on the driver of the KSRTC bus. But, the evidence of claimant as P.W.1, complaint and F.I.R prove that both the drivers of the vehicles have contributed towards rashness

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and negligence. Therefore, it is a composite negligence between the two vehicles. The claimant is not responsible for the accident. When the claimant was thrown out from the goods autorickshaw and at that time, the KSRTC bus was also coming with high speed and ran over the leg of the claimant, both drivers have contributed rashness and negligence. Admittedly, the accident was caused at evening 7.00 p.m., on 11.09.2007. Accordingly, sunset is early during September compared to summer season. Therefore, considering the time of accident at 7.00 p.m., evening almost there was dark and it is the duty cast on the driver of the KSRTC to switch on the head light and to drive the bus. The evidence reveals that the bus was coming without switching on the head light. Therefore, after dashing the autorickshaw, the driver of the bus without noticing the claimant being thrown on the road, ran over on the left leg of the claimant. Therefore, in this way, both the drivers of the autorickshaw and bus have contributed their negligence. Hence, there is composite negligence by the two drivers and the claimant sustained

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injuries in this manner. The Tribunal has not appreciated these facts as per evidence. But mechanically, just by swaying away from the gist of charge sheet, wrongly fastened the entire rashness and negligence on the driver of the bus. Therefore, considering these aspects, it is incumbent upon the driver of the bus, while driving the bus at evening 7.00 p.m., when there was darkness, ought to have switched on the head light and drive the bus. But without doing so and by not noticing the claimant, has caused the accident, thereby, claimant was grievously injured. Hence, both drivers of the bus and the autorickshaw have contributory negligence and rashness and caused the accident.

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The Tribunal has awarded compensation as under:

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Sl.No.	Heads.	Amount ( in Rs.)
1.	Loss of dependency	1,29,600
2.	Pain and suffering	30,000
3.	Medical expenses including nutritious food, speciat diet etc.	75,000
4.	Loss of earning during laid up period	15,000

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5. Loss of amenities 25,000 Total: 2,74,600

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The accident was caused in the year 2007 and the claimant was aged 25 years at the time of accident. Therefore, notional income of Rs.4,000/- per month has to be taken into consideration as per KSLSA guidelines. Appropriate multiplier applicable is 18. From the medical evidence, viz., doctor's evidence and disability certificate, it is proved that the claimant sustained 30% functional disability. As the claimant has suffered significant disability due to fracture, as per the Judgment of the Supreme Court in the case of SIDRAM vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER (2023) 3 SCC 439 and Division bench of this Court in NEW INDIA ASSURANCE COMPANY LTD., VS. ABDUL & OTHERS ( MFA.NO.103807/2016 C/W MFA.NOs.103835/2016 AND 103807/2018) D.27.05.2022), certain amount

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has to be awarded towards loss of future prospects in life.

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The quantum to be added towards loss of future prospects in life can be taken by the aid of guidelines issued by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680 . Therefore, 40% of income has to be added towards loss of future prospects. Hence, the loss of future income/loss of earning capacity is re-assessed and quantified as under:

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Rs.4,000/-+Rs.1,600/- x 30/100 x 18 x 12= Rs.3,62,880/-

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The compensation amount awarded under other

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heads are found to be on the lesser side. Therefore, the claimant is entitled for a sum of Rs.50,000/- towards pain and suffering. A sum of Rs.75,000/- towards medical expenses as per medical bills produced and kept intact. A sum of Rs.20,000/- towards loss of earnings towards laid up period for a period of five months (Rs.4,000/- x 5 months). Further, a sum of Rs.35,000/- is awarded towards loss of amenities and Rs.25,000/- is

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awarded towards incidental expenses like attendant, food

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and traveling expenses etc.

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Thus, the claimant is entitled for compensation

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as under:

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Sl.No.	Heads.	Amount ( in Rs.)
1.	Loss of dependency	3,62,880
2.	Pain and suffering	50,000
3.	Medical expenses (as per bills produced)	75,000
4.	Loss of earning during laid up period	20,000
5.	Loss of amenities	35,000
6.	Incidental expenses like food, attendant and traveling expenses etc.	25,000
	Total:	5,67,880

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I am of the opinion that both the drivers have contributed 50% each towards rashness and negligence. Hence, the claimant is entitled for 50% of the compensation amount from both vehicles. Thus, the claimant is entitled for 50% of compensation of Rs.2,83,940/- (50% of Rs.5,67,800/-) along with

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interest at the rate of 6% p.a., from the date of petition till realization.

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Accordingly, I proceed to pass the following:

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ORDER

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i. MFA No.22655/2011 filed by NWKRTC is allowed-in-

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part.

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ii. MFA.Crob.743/2012 filed by the claimant is allowedin-part .

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iii. The impugned judgment and award dated 30.10.2010 in MVC No.1645/2008 passed by II Addl. Senior Civil Judge and Addl. MACT, Belgaum, is hereby modified.

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iv. The claimant is entitled for 50% of compensation of Rs.2,83,940/- (50% of Rs.5,67,800/-) along with interest at the rate of 6% p.a., from the date of petition till realization.

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