Partly allowed

The Divisional Manager v. Nanjesh

Karnataka HC3 Dec 2024MFA/4184/2019

Case brief

AI extract

What is this about?

A motorcycle rider injured in a collision with a Tata Ace appealed against 20% contributory negligence and inadequate compensation; the insurer appealed on liability. The court found no negligence on the claimant's part, enhanced compensation to Rs.4,42,424 with 6% interest, dismissed the insurer's appeal and partly allowed the claimant's appeal.

What did the court decide?

20% contributory negligence set aside; compensation enhanced to Rs.4,42,424 with 6% p.a. interest on enhanced amount; insurer directed to deposit within two months.

The Divisional Manager Vs Nanjesh — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF DECEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 4184 OF 2019 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 2548 OF 2019 (MV-I)

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IN MFA No. 4184/2019

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, HASSANREPRESENTED BY THE REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144, II FLOOR, SHUBHARAM COMPLEX, M.G.ROAD, BANGALORE-01.

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…APPELLANT

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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(BY SMT. MANJULA N. TEJASWI., ADVOCATE)

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AND:

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NANJESH

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S/O CHANNABASAPPA, AGED ABOUT 39 YEARS, R/O MUTTANEGERE, PANCHANAHALLI HOBLI, KADUR TALUK, CHIKAMAGALUR DISTRICT.

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RAVIKUMAR S/O CHANDRAPPA, AGE:MAJOR,

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R/O KOTTIGERE VILLAGE, YAGATI HOBLI, KADUR TALUK, CHIKAMAGALURU DISTRICT.

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T C CHANDRASHEKHAR @ SOMAKSHEKAR S/O T M CHANDRAIAH, OWNER OF TATA ACE BEARING NO.KA-13-A-8896, R/O ARASIKERE TALUK, HASSAN DISTRICT.

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K C VEDAMURTHY S/O CHANDRAPPA, R/O NO.16/16, 21^ST MAIN, SRINIVASANAGARA, BHEL COLONY, NANDINI LAYOUT, BENGALURU.

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…RESPONDENTS

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(BY SRI. JAGADEESH H. T., ADV. FOR R1, R2 IS SERVED & UNREPRESENTED, VIDE ORDER DATED 26.11.2024 APPEAL AGAINST R3 IS ABATED, VIDE ORDER DATED 12.11.2024, NOTICE TO R4 IS DISPENSED WITH.)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.01.2019 PASSED IN MVC NO.12/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & MMACT, KADUR, CHKKAMAGALUR DISTRICT, AWARDING COMPENSATION OF RS.2,71,956/- WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO. 2548/2019

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BETWEEN:

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NANJESH S/O CHANNABASAPPA, AGED ABOUT 40 YEARS,

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- 3 - NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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R/AT MUTTANEGERE, PANCHANAHALLI HOBLI, KADUR TALUK 577548 CHIKKAMAGALURU DISTRICT.

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...APPELLANT

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(BY SRI. JAGADEESH H. T., ADVOCATE)

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AND:

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RAVIKUMAR S/O CHANDRAPPA, MAJOR, R/AT KOTTIGERE VILLAGE, YAGATI HOBLI, KADUR TALUK 577548, CHIKKAMGALURU DISTRICT.

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T. C. CHANDRASHEKAR @ SOMASHEKAR S/O T.M.CHANDRIAH, ARSIKERE TALUK-573103, HASSAN DISTRICT.

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THE MANAGER NATIONAL INSURANCE CO. LTD., MANJUNATHA COMPLEX, B.M.ROAD, HASSAN-573201.

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K.C. VEDAMURTHY, S/O CHANDRAPPA, AGED ABOUT 47 YEARS, R/AT NO. 16/16, 21^ST MAIN, SRINIVASANAGARA, B.H.E.L. COLONY, NANDINI LAYOUT, BENGALURU - 45.

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...RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADV. FOR R3, V/O DATED 30/06/2022 NOTICE TO R1, R2 & R4 IS DISPENSED WITH.)

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4 - NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01/01/2019, PASSED IN MVC NO.12/2013, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MMACT, KADUR, CHIKKAMAGALURU DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA

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ORAL JUDGMENT

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An accident occurred on 23.07.2012 between a two wheeler being driven by Nanjesh and a Tata Ace vehicle.

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As a result of the accident, Nanjesh filed a claim petition contending that he has suffered grievous injuries. It was his case that when he was riding his motorcycle, the Tata Ace vehicle suddenly took a right turn without giving any signal and, as a consequence, a collision occurs which resulted in his injuries.

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Respondent No.1 was arraigned as the driver and respondent No.2 was arraigned as the owner, they entered appearance and contested this petition. They took up the stand that the Tata Ace vehicle was parked on the left side of the road to unload the goods and at that time, the vehicle was being driven not by Nanjesh but, by one K. C.Vedamurthy, who was the brother of respondent No.1 - Nanjesh and who had been arraigned as respondent No.4 thereafter. It was contended that the Police Authorities had registered a false case against Ravikumar i.e., respondent No.1 without holding a proper investigation.

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The insurer entered appearance and contested the matter, as usual, denied all averments of the claim petition.

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K. C. Vedamurthy - respondent No.4 who was stated to be driving the Tata Ace vehicle by respondent No.1 had also filed his objections stating that the

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accident had occurred only due to the negligence on the part of the claimant. It was stated that at the time of riding the bike the claimant was taking on a mobile phone and he himself had collided with the Tata Ace vehicle which was standing on the side of the road and the collision occurred to the rear of the

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Tata Ace vehicle.

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The Tribunal on assessment of the evidence of the claimant, respondent No.1 Ravikumar, respondent No.4 K. C.Vedamurthy and another eyewitness has recorded a finding and an accident did occur on 23.07.2012 and respondent No.1 was driving the vehicle. It is also recorded by the Tribunal that the assertion that K. C. Vedamurthy was driving the vehicle had not been established. The Tribunal has ultimately proceeded to award a sum of Rs.2,71,956/- as compensation for the injuries suffered by the claimant and has made the insurer liable.

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The Tribunal while awarding the said compensation has also come to the conclusion that the claimant had also contributed to the accident to the extent of 20% and, therefore, 20% of the compensation was to be deducted out of Rs.3,39,944/-. Being aggrieved by this award, the insurer and the claimant are in appeal.

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The claimant contends that the attribution of negligence to the extent of 20% on the claimant was wholly incorrect especially when the evidence on record clearly indicated that respondent No.1 had appeared before the Criminal Court and pleaded guilty to the allegation of rash and negligent driving. He submitted that the assertion of the respondents that the vehicle was parked on the road when the accident took place stood falsified by the very suggestions put forth by the respondents to the claimant during the course of cross-examination, when it was suggested to them that when the Tata

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Ace vehicle was taking a right turn, the distance between the motorcycle and the Tata Ace vehicle was only about 6 feet.

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He submitted when this assertion that the vehicle was standing on the left side of the road had been falsified, all other defenses raised by the respondents should also be rejected outright.

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Lastly, it was contended that the award of compensation was inadequate.

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Learned counsel for the insurer submits that whether the vehicle was parked on the left side of the road or was taking a right turn would really be immaterial and so long as it was clear that an accident to the rear of the vehicle, negligence ought to have been attributed only on the rider of the motorcycle i.e., the claimant.

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She contended that the evidence on record clearly indicated that the vehicle had been parked on the left

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9 - NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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side of the road and there was also evidence on record to indicate that the claimant was talking in his mobile while driving the motorcycle had two pillion riders and therefore the negligence attributed on the claimant at just 20% was inadequate. She also contended that the compensation awarded was excessive.

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As far as the question of negligence is concerned, at the outset, it is to be stated here that the finding recorded by the Tribunal that respondent No.1 - Ravikumar who was driving the vehicle and he was rash and negligent has been accepted by Ravikumar, in as much as he has not preferred any appeal. If the person against whom the allegation of rash and negligence has been made accepts an adverse finding against him, it would be impermissible for the insurer to plead on his behalf in an appeal filed by it.

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That apart, in my view, the assertion of the insurer that respondent No.1 – Ravikumar was not

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responsible for the accident cannot be accepted. Ravikumar who was examined as RW.1, he proceeded to set up the case that he was not driving the vehicle but his brother i.e., K. C. Vedamurthy was driving the vehicle. Respondent No.4 – K. C. Vedamurthy during the course of his crossexamination admitted that his brother Ravikumar i.e., respondent No.1 had pleaded guilty before the Criminal Court on the allegation that was made against him regarding the rash and negligent driving.

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It is true that the decision of a Criminal Court on an allegation of rash and negligence would not really having any bearing on the decisions to be rendered in the motor vehicle cases, but in a case of negligence when the driver against whom the allegation is made pleads guilty, that would have a material difference to the decision to be rendered in the motor vehicle cases. This is simply because if the driver voluntarily accepts guilt about his rash and

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NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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negligent driving and agrees to pay a fine, it will have to be held that he did accept that the fault was on his part for the cause of the accident.

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In light of this admission of guilt by respondent No.1, the contention of the insurer that there was negligence on the part of the claimant cannot be accepted.

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Thirdly, it is noticed that respondent No.1 and his brother took up a defence that a Tata Ace vehicle was parked on the left side of the road and the claimant came and hit a parked vehicle. However, during the course of cross-examination, the respondents have made the following suggestion to the claimant.

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“ಅಪ�ತ�ಾಗುವ ಮುಂ�ೆ 1�ೇ ಎದುರು�ಾರರು ತಮ� �ಾಹನವನು� ಬಲ �ಾಗ�ೆ� �ರು�ಸುವ ಮುನ� ನನ� ಮತು! 1�ೇ ಎದುರು�ಾರರ �ಾಹನ�ೆ� 6 ಅ" ಅಂತರ ಇತು!”.

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This suggestion by itself falsifies their defence that

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their vehicle had been parked when the accident took place. In my view, since respondent No.1 made a false statement before the Court that it was his brother who was driving and yet pleaded guilty and subsequently, he set up a defence that the vehicle was parked but suggestions were made that the distance between the motorcycle and the Tata Ace vehicle was only 6 feet when the Tata ace vehicle was taking right turn by itself clearly proves that respondent Nos.1 and 4 were trying to escape their liability one way or the other.

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I am therefore of the view that the root cause of the accident was the negligence of respondent No.1 and no negligence can be attributed to the claimant. Consequently, the finding attributing negligence to the extent of 20% on the claimant is set aside.

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As far as the compensation is concerned, the Tribunal has awarded a sum of Rs.3,39,944/- and in arriving

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at a said sum, the Tribunal has assessed the disability at 11% and has taken the notional income at Rs.6,000/- per month.

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The claimant had suffered the fracture of the tibia and the fibula, the doctor who was examined has assessed the whole body disability at 11%. In my view, since the claimant has suffered the fracture of tibia and fibula, it would be appropriate to treat the whole body disability at 10%. Since there was no proof of actual income, a sum of Rs.7,000/- as determined by the Karnataka State Legal Services Authority will have to be applied for the accident of the 2012. Consequently, towards ‘loss of future income’ the claimant would be entitled to Rs.1,34,400/- (Rs.7,000/- X 12 X 16 X 10%).

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The Tribunal has awarded a sum of Rs.1,25,224/towards medical expenses. Since it is based on the documentary evidence, it is affirmed.

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NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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The Tribunal has awarded a sum of Rs.50,000/towards pain and suffering and has not awarded any sum towards loss of amenities. In my view, it would be appropriate to enhance a sum of Rs.50,000/awarded towards pain and suffering to Rs.75,000/and award a sum of Rs.50,000/- towards loss of amenities.

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The Tribunal has awarded a sum of Rs.20,000/towards food, nourishment and attendant charges and a sum of Rs.16,800/- towards conveyance charges. These sums are just and proper and are therefore affirmed.

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The Tribunal has awarded a sum of Rs.1,200/towards loss of income during the laid-up period. Since the claimant had suffered a fracture of Tibia, it would be appropriate to treat the laid up period as 3 months and award a sum of Rs.21,000/- (Rs.7,000/X 3 months) as ‘loss of income during laid up period’.

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Consequently, the award of the Tribunal is modified and the following sums are awarded as

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compensation:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
1.	Medical expenses	1,25,224/-	1,25,224/-
2.	Future loss of income	1,26,720/-	1,34,400/-
3.	Loss of income during laid up period	1,200/-	21,000/-
4.	Conveyance charges	16,800/-	16,800/-
5.	Pain and suffering	50,000/-	75,000/-
6.	Food, nourishment and attendant charges	20,000/-	20,000/-
7.	Loss of amenities in life	Nil	50,000/-
	Total	3,39,944/-	4,42,424/-

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Accordingly, the claimant is held entitled to the compensation of Rs.4,42,424/- as against

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NC: 2024:KHC:49987 MFA No. 4184 of 2019 C/W MFA No. 2548 of 2019

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Rs.3,39,944/- along with interest at the rate of 6% p.a. on the enhanced compensation amount from the

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date of petition till its realisation.

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The Insurance Company is directed to deposit the amount of compensation awarded within two months from the date of receipt of a certified copy of this judgment.

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The amount in deposit, if any, shall be transferred to the Tribunal forthwith.

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Consequently, the appeal of the insurer is dismissed and the appeal of the claimant is, accordingly,

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allowed in part .

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Sd/(N S SANJAY GOWDA) JUDGE

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GSR

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List No.: 1 Sl No.: 26

The Divisional Manager v. Nanjesh

Case brief

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The Divisional Manager v. Nanjesh

Case brief

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