Allowed

Siddaraju v. L and T General Insurance Co. Ltd.

Karnataka HC19 Aug 2024MFA/6404/2017

Case brief

AI extract

What is this about?

Motor accident appeal by injured motorcyclist against award. Court enhanced compensation from Rs.2,83,157/- to Rs.5,11,857/- by adopting notional income of Rs.9,500/-, functional disability at 20%, and revised heads, and modified contributory negligence from 50:50 to 25% claimant and 75% car driver.

What did the court decide?

Appeal allowed in part: enhanced compensation Rs.5,11,857/- with 6% interest; 75% payable after deducting 25% contributory negligence.

Siddaraju Vs L and T General Insurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:33129 MFA No. 6404 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO.6404/2017 (MV-I)

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BETWEEN:

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SIDDARAJU

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S/O GURU MURRAPPA @ GURUMURTHY RESIDING AT NO.204, SHANKARAPPA LAY OUT ALLALAANDRA GKVK POST, YALAHANKA,

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BANGALORE - 560 065.

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…APPELLANT

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(BY SRI GURUDEV PRASAD K T., ADVOCATE)

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AND:

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L AND T GENERAL INSURANCE CO. LTD., T.P.CLAIMS HUB 1^ST FLOOR, SHUBHAM BUILDING, MAGRATH ROAD BANGALORE-560025 REPRESENTED BY ITS MANAGER.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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M/S NOVELL SOFTWARE DEVELOPMENT NO.98-99A, VAKIL GARDEN CITY TALAGHATTAPURA POST KANAKAPURA ROAD BANGALORE-560062

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…RESPONDENTS

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(BY SRI. PRADEEP B., ADVOCATE FOR R-1; V/O DATED 04/08/2022 NOTICE TO R-2 IS D/W)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED03.04.2017 PASSED IN MVC NO.1993/2016 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT-7, COURT OF SMALL CAUSES, BENGALURU, (SCCH-7), 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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2 - NC: 2024:KHC:33129 MFA No. 6404 of 2017

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 03.04.2017 passed by IX Addl. Small Causes Judge and Addl. Motor Accident Claims Tribunal, Bangalore (SCCH-7) (for short 'Tribunal') in MVC.no.1993/2016, this appeal is filed by claimant.

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Sri Gurudev Prasad K.T., learned counsel for appellant submitted that appeal was by claimant challenging award on finding regarding contributory negligence as well as for enhancement of compensation. It was submitted on 07.02.2016 at about 4:00 p.m., claimant was riding motorcycle bearing registration no.KA-50R-1666 on Yelahanka - Allalasandra Road. While taking U-turn near Allalasandra bridge cautiously, a Car bearing registration no.KA-03-MQ-2201 driven by its driver in rash and negligent manner dashed against claimant's motorcycle causing accident.

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In said accident, claimant sustained grievous injuries and was shifted to Shushrusha Nursing home for firstaid and thereafter to Sarojini Hospital for better treatment. He had sustained fractures of both femur and tibial condoyle of left

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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knee. Despite treatment he sustained permanent physical disability. It was submitted, prior to accident he was 39 years of age, hale and healthy and earning Rs.700/- per day from bar-bending/centering work and that disability sustained resulted in loss of earning capacity.

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It was submitted, PW-2 - Doctor had assessed his permanent disability at 21% to whole body. But, Tribunal assessed loss of earning capacity at 12% and awarded inadequate compensation. It was submitted, even compensation towards pain and suffering at Rs.30,000/- for two fractures; Rs.20,000/- towards loss of amenities etc. were also inadequate. Likewise, it was submitted that compensation awarded towards future medical expenses was also inadequate and sought for enhancement.

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Insofar as contributory negligence, it was submitted that Ex.P3 - Spot Hand Sketch would indicate that accident spot is at median-break. It was submitted, offending Car had swerved slightly to right side prior to accident spot and dashed against motorcycle. This would indicate that claimant was cautious and had stopped at median-break, whereas Car had dashed against motorcycle. Therefore, entire negligence should

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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have been held against Car driver. On above grounds sought for allowing appeal.

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On other hand, Sri B. Pradeep, learned counsel for respondent no.1 sought to oppose appeal. It was submitted, Tribunal had assessed compensation under various heads by carefully examining facts and circumstances as well as material on record and same did not call for any enhancement. Insofar as finding on contributory negligence, it was submitted that accident occurred at median-break, which apparently did not have traffic signals. Therefore, it was incumbent upon motorcycle rider to verify on coming traffic before taking U-turn. In view of his failure, Tribunal had rightly apportioned negligence in equal proportion and same did not call for interference. It was further contended that while assessing compensation, Tribunal awarded interest at rate of 9% and same would offset any possibility for enhancement. On above grounds sought for dismissal of appeal.

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Heard learned counsel, perused impugned judgment and award and record.

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5 - NC: 2024:KHC:33129 MFA No. 6404 of 2017

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From above, points that would arise for

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consideration are:

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Whether claimant is entitled for enhancement of compensation as sought for?

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Whether finding of Tribunal regarding apportionment of contributory negligence calls for modification?

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Insofar as point no.1: Occurrence of accident involving insured vehicle and claimant sustaining injuries and permanent disability therein are not in dispute. Tribunal has assessed compensation which is contended to be inadequate. As on date of accident, claimant was 39 years of age doing bar-bending/centering work and earning Rs.700/- per day. Tribunal has considered monthly income at Rs.8,000/-. Since date of accident is 2016, even if claimant failed to substantiate income with records, it would not be appropriate to consider it at Rs.8,000/-, when notional income for year 2016 was Rs.9,500/- same has to be considered.

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Claimant has sustained fractures of left femur and tibial condoyle. Same is treated by surgery and insertion of implants. In deposition of PW-2 - Doctor, who had assessed

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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disability, stated that X-ray taken on 22.11.2016 immediately prior to assessment showed united fracture of tibial condoyle, but nonunion of femoral condoyle leading to restriction of movements of knee, loss of muscle power and both mobility component as well as stability. On said observation, PW-2 assessed limb disability at 42% and to whole body at 21%.

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Considering nature of avocation of claimant as bar-bender/centering work, injury/disability sustained would affect earning capacity to a greater degree than in case of other avocation. Tribunal has taken functional disability at 12% by stating that claimant was responsible for not taking timely and proper treatment. Considering avocation, merely on ground that claimant had taken discharge from Shushrusha Nursing home against medical advice, it would not be proper for Tribunal to reduce disability. Since PW-2 has assessed whole body disability at 21%, it would be appropriate to consider functional disability at 20% in light of claimant's avocation. Thus, future loss of income would be at Rs.3,42,000/- (i.e. Rs.9,500/- X 20% X 12% X 15).

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Since claimant sustained grievous fracture to left femur in addition to tibial condoyle, award of Rs.30,000/-

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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towards pain and suffering would be inadequate, it would be appropriate to enhance it to Rs.50,000/- .

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Considering nature of disability sustained and age of claimant, it would be appropriate to enhance compensation towards loss of amenities to Rs.40,000/- . Further, consequent to reassessment of monthly income, loss of income during laidup period has to be scaled upto Rs.28,500/- . Since there is complete reimbursement of medical expenses at Rs.14,357/- , there would be no enhancement. Tribunal awarded Rs.15,000/- towards future medical expenses, taking note of implants, for removal it would be appropriate to enhance compensation to Rs.30,000/- . Award of Rs.2,000/- towards conveyance and Rs.5,000/- towards attendant and diet charges, taking note of duration of treatment of four days would appear adequate and would not call for enhancement. Thus, total compensation would be at Rs.5,11,857/- . Accordingly, point no.1 is answered partly in affirmative as above.

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Insofar as point no.2: Admittedly, as per police investigation records, entire negligence for causing accident is on driver of Car. As per Ex.P3 - Spot Sketch, accident spot is at

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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median-break. It is not in dispute that there was no traffic signal at that point. As per claimant, his motorcycle and offending Car were proceeding in opposite directions of road separated by median and claimant intended to take U-turn at median-break. But before he could complete U-turn, at mouth of median-break itself, Car dashed against motorcycle causing accident. While a vehicle traversing median-break would require to verify on coming traffic before taking U-turn, on coming vehicles are also required to slowdown and proceed near median-breaks with caution, in anticipation of vehicles crossing median-break. As would be evident, rider/driver of both vehicles failed to exercise necessary care and caution about other road users. Under above circumstances, claimant would not be entitled to contend that entire negligence was that of Car Driver.

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At same time, taking note of fact that Car is a heavier vehicle, responsibility of taking adequate care and caution would be more on driver of Car than motorcyclist. Under above circumstances, apportionment of negligence equally between them would not be justified. It would be appropriate to restrict negligence against rider of motorcycle to

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NC: 2024:KHC:33129 MFA No. 6404 of 2017

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25% while holding it at 75% against driver of Car. Point no.2 is

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answered accordingly. Consequently, following:

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ORDER

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i. Appeal is allowed in part.

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ii. Claimant is held entitled for enhanced compensation of Rs.5,11,857/- as against Rs.2,83,157/- awarded by Tribunal.

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iii. Enhanced compensation would carry interest at rate of 6% per annum.

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iv. Claimant is held entitled for 75% of said compensation by deducting 25% towards contributory negligence.

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v. Respondent shall deposit balance compensation before Tribunal within six weeks from date of receipt of copy of this order.

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vi. Registry to draw decree and transmit records forthwith.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 26

Siddaraju v. L and T General Insurance Co. Ltd.

Case brief

What is this about?

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Siddaraju v. L and T General Insurance Co. Ltd.

Case brief

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