Partly allowed

Sri H Kumar v. Sri Anil Kumar

Karnataka HC19 Jul 2024MFA/411/2020

Case brief

AI extract

What is this about?

Claimant injured as motorcycle pillion in a collision with a car sought enhanced compensation; insurer cross-appealed on negligence and driver's licence. Court upheld sole negligence of car driver, applied notional income of Rs.11,000, and enhanced compensation to Rs.4,04,740 with 6% interest.

What did the court decide?

Compensation enhanced to Rs.4,04,740 with 6% interest; claimant's appeal allowed in part, insurer's appeal dismissed, deposit transmitted to tribunal.

Sri H Kumar Vs Sri Anil Kumar — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR MISCELLANEOUS FIRST APPEAL NO.411 OF 2020(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.6699 OF 2019(MV-I)

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IN MFA NO. 411/2020

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BETWEEN:

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SRI. H. KUMAR, S/O HANUMANAIAH, AGED ABOUT 36 YEARS, 390, THALGHATTAPUR, BENGALURU SOUTH, BENGALURU.

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…APPELLANT

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(BY SRI. UDAYA KUMAR R.L, ADVOCATE) AND:

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Digitally signed by R HEMALATHA Location: High Court of Karnataka

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SRI. ANIL KUMAR, C/O RANGASWAMY, NO.43/6, GROUND FLOOR, VENKATESHWARA LAYOUT, 2ND CROSS, BDA ROAD, B.K.CIRCLE, NEAR JAIN TEMPLE, JAMBUSAVRI DINNE, J.P.NAGAR, 8TH PHASE, BENGALURU - 560 078.

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NATIONAL INSURANCE COMPANY LTD., BENGALURU DIVISION, 1, 3RD FLOOR, UNITY BUILDING ANNEXURE, NO.72, MISSION ROAD, PB NO.2701, BENGALURU - 560 027.

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…RESPONDENTS

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(BY SRI. A.M. VENKATESH, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2019 PASSED IN MVC NO.

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NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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4793/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 6699/2019

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BETWEEN:

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THE NATIONAL INSURANCE CO. LTD., BANGALORE DIVISION-1, THIRD FLOOR, UNITY BUILDING ANNEXE, NO.72, MISSION ROAD, PB NO.2701, BANGALORE 27, THROUGH ITS BENGALURU REGIONAL OFFICE, NO.144, SHUBHHARAM COMPLEX, M.G.ROAD, BANGALORE - 560 001. REPRESENTED BY ITS DEPUTY MANAGER.

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…APPELLANT

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(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE) AND:

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H. KUMAR, S/O HANUMANTHARAIAH, AGED ABOUT 36 YEARS, R/O NO.30, THALAGHATTAPUR, BANGALORE SOUTH, BANGALORE - 560 109.

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MR. ANIL KUMAR, S/O RANGASWAMY, MAJOR IN AGE, R/O NO.43/6, GROUND FLOOR, VENKATESHWARA LAYOUT, 2ND CROSS, BDA ROAD, BK CIRCLE, NEAR JAIN TEMPLE, JAMBU SAVARI DINNE, J.P. NAGAR 8TH PHASE, BENGALURU - 560 078.

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…RESPONDENTS

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(BY SRI. UDAYA KUMAR R.L, ADVOCATE)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2019 PASSED IN MVC

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3 - NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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NO.4793/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING COMPENSATION OF RS.3,10,660/- WITH INTEREST @ 6% P.A. (EXCLUDING ON FUTURE MEDICAL EXPENSES OF RS.20,000/-) FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal arises from the judgment and award dated 01.06.2019, passed in MVC No.4793/2017 by the 9th Additional Small Causes and Additional MACT, Bengaluru (SCCH-7).

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The appellant in MFA No.411/2020 filed a claim petition under Section 166 of the Motor Vehicles Act, seeking just and proper compensation for injuries sustained in a road traffic accident on 19.03.2017. The Tribunal awarded a total compensation of Rs.3,10,660/- along with interest at the rate of 6% per annum, excluding interest on “future medical expenses” of Rs.20,000/-. The claimant has filed an appeal (MFA No.411/2020) seeking enhancement of the compensation, while the insurance company has filed a cross-appeal (MFA No.6699/2019) challenging the quantum as well as its liability to pay the compensation.

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The learned counsel for the insurance company contended that the evidence clearly establishes that the accident was solely due to the negligence of the motorcycle rider. Since the motorcycle rider was not impleaded, the judgment and award passed by the Tribunal attributing sole negligence to the car driver is legally unsustainable. The insurance company relied on the

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NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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decision of the Hon’ble Supreme Court in Nishan Singh and Others vs. Oriental Insurance Company Limited reported in 2018 (6) SCC 765. Additionally, the insurance company argued that the insured vehicle was falsely implicated, as the FIR was lodged three days after the accident without any reasonable explanation.

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Conversely, the learned counsel for the claimant argued that the evidence on record clearly shows that the accident occurred due to the car driver’s rash and negligent act of overtaking and colliding with the motorcycle. Therefore, the Tribunal was correct in attributing negligence solely to the car driver. It was further argued that the compensation awarded by the Tribunal was inadequate and should be enhanced. Reliance was placed on the Division Bench decision of this Court in Manager, Reliance General Insurance Co. Ltd., Bangalore vs. Krishna Reddy and Others (2021 AAC 1705 (KAR); AIROnline 2021 Kar 632).

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The submissions made by the learned counsel for both parties were duly considered, and the trial court records were thoroughly examined.

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According to the claim petition, the accident occurred on 19.03.2017 at around 4:45 p.m. while the claimant was riding as a pillion on a motorcycle driven slowly and cautiously on the Bannerghatta-Kanakapura main road. Near Purvankara Apartment, a car, driven rashly and negligently, came to the extreme right and collided with the motorcycle, causing the claimant to suffer fractures of the left thigh, hip, and subtrochanteric femur. After

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5 - NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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investigation, the police charge-sheeted the car driver, stating that the accident resulted from his overtaking maneuver without due caution. Though the charge-sheet is not conclusive evidence, the burden was on the insurance company to prove that the accident was solely due to the motorcycle rider’s negligence.

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The decision of the Hon’ble Apex Court in Nishan Singh and Others vs. Oriental Insurance Company Limited is distinguishable, as that case involved a scenario where a car driver failed to maintain proper distance from a heavy vehicle, resulting in an accident. The circumstances of the present case are different.

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The Division Bench of this Court, in Manager, Reliance General Insurance Co. Ltd., Bangalore vs. Krishna Reddy and Others (2021 AAC 1705 (KAR); AIROnline 2021 Kar 632), held that when the insurance company alleges contributory negligence without presenting evidence to substantiate such a claim, the contention must fail. No witnesses were examined by the insurance company to support their version of the accident.

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During cross-examination, the insurance company did not establish that the motorcycle rider was solely negligent. No rebuttal evidence was presented to discredit the police chargesheet. Hence, the Tribunal was correct in attributing sole negligence to the car driver.

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The insurance company’s contention regarding a policy violation due to the car driver’s license status as a Light Motor Vehicle (LMV) driver is without merit, considering the Hon’ble

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6 - NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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Supreme Court’s ruling in Mukund Dewangan vs. Oriental Insurance Co. Limited (AIR 2017 SC 3668), which clarified that LMV license holders can lawfully drive transport vehicles.

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The claimant sustained a fracture of the left femur and thigh. PW-3 (the medical expert) assessed a permanent disability of 36% to the affected limb, and the Tribunal correctly assessed a 12% functional disability due to the absence of proof of income. Although the claimant submitted Exhibit P-11 to show earnings of Rs.30,240/- per month as a loader and unloader, the employer (author of Exhibit P-11) was not examined. Consequently, the claimant’s notional income is assessed at Rs.11,000/- per month per the Karnataka Legal Services Authority chart, instead of Rs.9,000/- as determined by the Tribunal. Consequently, the revised compensation for loss of future income is calculated as follows:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
1.	Pain and suffering	40,000/-	50,000/-
2.	Medical expenses	6,300/-	6,300/-
3.	Special diet and conveyance	10,000/-	15,000/-
4.	Loss of earning during laid up period	27,000/-	33,000/-

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NC: 2024:KHC:28341 MFA No. 411 of 2020 C/W MFA No. 6699 of 2019

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5.	Permanent disability	2,07,360/-	2,53,440/-
6.	Future medical expenses	22,000/-	22,000/-
7.	Loss of amenities	-	25,000/-
	Total	3,10,660/-	4,04,740/-

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Thus, the claimant is held entitled to total

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compensation of Rs.4,04,740/- as opposed to Rs.3,10,660/-, along with interest at the rate of 6% per annum from the date of petition till its realization.

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ORDER

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