Partly allowed

S. Shivakumara Swamy v. G. N. Shivakumar

Karnataka HC23 Sept 2024MFA/4839/2018

Case brief

AI extract

What is this about?

This First Appeal affirmed the claimant's right to enhanced compensation for injuries sustained in a road accident involving composite negligence by two drivers. The Court recalculated future income loss based on increased disability percentage and adjusted payments for pain and amenities. Interest was reduced to 6%.

What did the court decide?

Total compensation enhanced to Rs. 16,93,560/-; interest reduced to 6% p.a.; entire amount deposited by the second respondent (Insurer) with liberty to recover 25% from the Tata Ace owner.

S. Shivakumara Swamy Vs G. N. Shivakumar — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:39306 MFA No. 4839 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 4839 OF 2018 (MV)

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BETWEEN:

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S. SHIVAKUMARA SWAMY S/O. K. SHIVALINGU AGED ABOUT 34 YEARS R/AT. NO.347, NADANAHALLI ALANAHALLI ROAD, BANNUR ROAD MYSURU- 570023.

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…APPELLANT

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(BY SRI. SHANTHARAJ K.,ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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G. N. SHIVAKUMAR S/O. NAGULASAMY AGED MAJOR R/AT. NO.14, GUNDAMPALYAM HULIYAR CEMENT FACTORY MYSURU DISTRICT-639114.

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THE NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY ITS MANAGER DIVISIONAL AND BRANCH OFFICE NO.2951, 2ND FLOOR JLB ROAD, CHAMUNDIPURAM MYSURU - 570004.

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RAVIKUMAR S. S/O. SAMPATH KUMAR AGE MAJOR R/AT. NO.113, KOUDALLI ANGADI BEEDI KOLLEGALA TALUK -571440.

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SURESH KUMAR M. S/O. MADEGOWDA AGED MAJOR ANJANEYA BEEDI, HANUR, KOLLEGALA TALUK- 571439.

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…RESPONDENTS

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(BY SRI.A.R. LAKSHMI NARYANA., ADVOCATE FOR R2: NOTICE TO R3 & R4 ARE SERVED AND UNREPRESENTED NOTICE TO R1 IS DISPENSED WITH V/O DATED: 05.12.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.04.2017 PASSED IN MVC NO.944/2014 ON THE FILE OF THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING OFFICER, MACT AND SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles

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Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 20.04.2017 passed by the Motor Accident Claims Tribunal, Mysuru (hereinafter referred to as ‘the Tribunal’) in MVC No.944/2014.

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3 - NC: 2024:KHC:39306 MFA No. 4839 of 2018

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Facts giving rise to the filing of the appeal briefly stated are that on 30.08.2013 at about 9.30 a.m., when the claimant was proceeding on motorcycle bearing registration No.KA-09/EE-5248, at that time, a Tata Ace bearing registration No.KA-10/7192 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant fell down, tried to get up and move to the footpath, at that time, driver of the lorry bearing registration No.TN-47/AB-1660 came at a high speed and in a rash and negligent manner and the wheel of the lorry ran over the left leg of the claimant and he was hospitalized.

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The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of

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rash and negligent driving of both the Tata Ace and the lorry by its drivers.

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Upon service of notice, the respondent No.3 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent Nos.2, 4 and 5, despite service of notice, did not appear before the Tribunal and were placed ex-parte. The claim against respondent No.1 was dismissed as not pressed.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, and Dr.Mahesh K.N. was examined as PW-2, and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of the respondents, one witness was examined as RW-1 and no documents were got exhibited. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of both the Tata Ace

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and the lorry by its drivers, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.10,74,400/- along with interest at the rate of 9% p.a. and directed the owner and insurer of the lorry to pay compensation at 75% and the driver and the owner of the

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Tata Ace at 25% to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant raised the following contentions:

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(i) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.9,000/-, despite claiming that he earned Rs.15,000/- per month.

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(ii) Secondly, the claimant has examined the doctor as PW-2. In his evidence he has deposed that the claimant has suffered crush injury, he has undergone surgery, there is shortening of ½ inch left leg and deformity of lower third of the left leg and he is suffering from permanent physical

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disability of 50% of left lower limb. Due to the disability he was unable to do his day today work. The disability assessed by the Tribunal is on the lower side and the claimant is entitled for addition of future prospects. In support of his contention, he has relied on the judgments of the Apex Court in the cases of ‘PAPPU DEO YADAV

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vs. NARESH KUMAR AND OTHERS’ 2020 SCC Online SC 752 and ‘ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online

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SC 601.

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(iii) Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 98 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment and he has to suffer the disability throughout his life. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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(iv) Lastly, in view of the judgment of the Apex Court in the cse of KHENYEI vs. NEW INDIA ASSURANCE

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COMPANY LIMITED reported in (2015) 9 SCC 273, the claimant can recover the compensation amount from any one of the joint tort-feasors. Hence, he sought to allow the appeal.

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On the other hand, the learned counsel for the Insurance Company raised the following countercontentions:

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(i) Firstly, the assertion of claimant that he was earning Rs.15,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

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(ii) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 25%.

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(iii) Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

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(iv) Fourthly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount appears excessive.

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(v) Lastly, Insurance Company is liable to pay only 75% of the liability in respect of the offending lorry. In respect of 25% is concerned, the owner of the Tata Ace is liable to pay the compensation. Hence, he sought to dismiss the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and the original records.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 30.08.2013 due to rash and negligent driving of the offending lorry as well as offending Tata Ace by its drivers.

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The Tribunal, considering the evidence of the parties and the materials available on record has rightly assessed the notional income of the claimant as Rs.9,000/- per month.

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Due to the accident, the claimant has sustained crush injury to the left leg, fracture of both bones and other injuries. The doctor in his evidence has stated that the claimant has undergone surgery and he has suffered restricted knee movement as well as ankle movement, there is shortening of ½ inch of left leg, deformity of lower third of the left leg as well as weakness of thigh muscles.

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The claimant has also produced photographs marked as Ex.P11.

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On perusal of the evidence of the doctor, medical records and Ex.P11 – photographs, I am of the opinion that the whole body disability has to be assessed at 40%. Due to disability, he is unable to do his day today work. In view of the judgments of the Apex Court in the cases of

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PAPPU (supra) and ERUDAYA PRIYA (supra), the claimant is entitled for addition of future prospects.

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In view of the law laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -

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v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],

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since the claimant was aged about 30 years, 40% of his income has to be added towards future prospects and the applicable multiplier is ‘17’. Hence, the monthly income of the claimant comes to Rs.12,600/- (Rs.9,000 + 40%). Thus, the claimant is entitled to Rs.10,28,160/(Rs.12,6001217*40%) on account of 'loss of future income due to disability’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during the treatment period and he has to suffer the disability throughout his life. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.25,000/- to Rs.50,000/-, under the head of 'loss of amenities' from Rs.25,000/- to Rs.40,000/- and under the head ‘'medical expenses and nourishment’ from Rs.4,75,000/- to Rs.4,85,000/-.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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	As awarded	As awarded
Compensation under different Heads	by the Tribunal	by this Court

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	(Rs.)	(Rs.)
Pain and sufferings	25,000	50,000
Medical expenses and nourishment	4,75,000	4,85,000
Loss of income during laid up period	65,400	65,400
Loss of amenities	25,000	40,000
Loss of future income	4,59,000	10,28,160
Future medical expenses	25,000	25,000
Total	10,74,400	16,93,560

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Re.liability:

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The Apex Court in the case of KHENYEI (supra)

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has held that if the accident has occurred due to the composite negligence of riders of two vehicles, it is the choice of the claimants, they can implead any one of the tortfeasors and claim compensation, the one tortfeasor can recover the amount from the other tortfeasor. The relevant portion is extracted hereinbelow:

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13 -

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NC: 2024:KHC:39306 MFA No. 4839 of 2018

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“22.1. In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

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22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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22.4. It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”

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In view of the above, the second respondent –

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Insurance Company is directed to deposit the entire it is for the insurer to file separate independent proceedings against the other vehicle before the appropriate legal forum for negligence and for recovery of the amount.

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In the result, the following order is passed:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment of the Claims Tribunal is modified.

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(iii) The claimant is entitled to a total compensation of

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Rs.16,93,560/- as against Rs.10,74,400/- awarded by the Tribunal.

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(iv) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the enhanced compensation shall carry interest at 6% per annum.

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(v) The second respondent - Insurance Company is directed to deposit the entire compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment, with liberty to recover 25% of the liability from the owner of the Tata Ace bearing registration No.KA-10/7192.

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(vi) In view of the order dated 05.12.2023 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 254 days in filing the appeal.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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List No.: 1 Sl No.: 56

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S. Shivakumara Swamy v. G. N. Shivakumar

Case brief

What is this about?

What did the court decide?

S. Shivakumara Swamy v. G. N. Shivakumar

Case brief

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What did the court decide?

What the court decided

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