The Divisional Manager Vs Sri Bharama S/O Duragappa Marakatti

THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, THROUGH ITS REGIONAL OFFICE, KALBURGI-BHADRAPUR INFINITY, 2^ND FLOOR, PINTO ROAD, HUBBALLI, REP. BY ITS REGIONAL MANAGER.

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench

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(BY SRI. N.R.KUPPELUR, ADVOCATE)

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APPELLANT

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AND:

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SRI. BHARAMA S/O. DURAGAPPA MARAKATTI, AGE 30 YEARS, OCC: AGRICULTURIST, R/O. KALYANATTI, TQ AND DIST: BELAGAVI-590001.

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SRI. UDAY S/O. SHANKAR GORPADE, AGE MAJOR, OCC: BUSINESS, R/O. NO.129, SHINOLI (BK), TQ: CHANDGARD, DIST: KOLHAPUR, STATE: MAHARASHTRA- 604121,

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SRI. PRABHU S/O. DURGAPPA MARAKATTI, AGE MAJOR, OCC: PRIVATE SERVICE, R/O. KALENATTI, POST: WHAGWADE-590041, TQ AND DIST: BELAGAVI-590001.

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RESPONDENTS (BY SMT. GEETHA K. M. @ PAWAR, ADVOCATE FOR C/R1; NOTICE TO R2 IS DISPENSED WITH; NOTICE TO R3 IS SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH IN MVC NO.228/2019 ON THE FILE OF THE XI ADDL. DISTRICT SESSIONS JUDGE AND ADDL. MACT, BELAGAVI AND SET ASIDE AWARD DATED 08.03.2022 AS AGAINST THE APPELLANT, IN THE INTEREST OF JUSTICE.

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IN MFA NO.102778 OF 2022:

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BETWEEN:

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SHRI. BHARMA @ BHARMANI, S/O. DURGAPPA MARAKATTI, AGE 30 YEARS, OCC: AGRICULTURIST, R/O. KALYANATTI-591102, TALUKA AND DIST: BELAGAVI.

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APPELLANT

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(BY SMT. GEETHA K.M. @ PAWAR, ADVOCATE)

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AND:

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SHRI. UDAY S/O. SHANKAR GORPADE, AGE MAJOR, OCC: BUSINESS,

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R/O. NO.129, SHINOLI (BK), TALUKA: CHANDGAD, DIST: KOLHAPUR, STATE: MAHARAHSTRA-416507.

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., R/BY ITS DIVISIONAL MANAGER, CLUB ROAD, BELAGAVI-590001.

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SHRI. PRABHU S/O. DURGAPPA MARAKATTI, AGE: MAJOR, OCC: PRIVATE SERVICE, R/O. AT KALENATTI, POST: WAGHAWADE, TALUKA & DIST: BELAGAVI-590014.

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RESPONDENTS

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(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R2; NOTICE TO R1 AND R3 ARE SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 08.03.2022 PASSED BY IN THE COURT OF THE XI ADDL. DISTRICT JUDGE AND ADDL. MACT, BELAGAVI IN MVC NO.228/2019 AND ENHANCE THE COMPENSATION AS CLAIMED BY THE APPELLANT BY HODLING THAT THE INSURANCE COMPANY IS LIABLE TO PAY THE SAME IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

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These appeals arise out of judgment and award dated 08.03.2022 passed by the XI Addl. Dist. Judge & AMACT, Belagavi, in M.V.C. No. 228/2019 (for short, the ‘Tribunal’).

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Parties are referred to as per their ranking before the Tribunal.

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Insurer filed M.F.A. No. 102380/2022 challenging the contributory negligence apportioned by the Tribunal so also the quantum of compensation awarded. Claimantinjured filed M.F.A. No. 102778/2022 challenging the ratio of contributory negligence as well as for enhancement of the compensation. Both the appeals arise out of M.V.C. No. 228/2019 passed by the Tribunal. Therefore both the appeals are taken up together for disposal.

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It is the case of the claimant that on 07.12.2017 around 8.30 p.m. the petitioner was riding the motorcycle

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bearing No. KA-22-EL-8551 from Desnur village towards Belagavi side. The offending truck bearing Reg. No. MH09-BA-9798 was also going in the same direction, ahead of the motorcycle. Further, at the spot of the accident, driver of the lorry suddenly applied brakes because of which claimant could not control his motorcycle and dashed against the rear side of the truck and caused the accident due to which he sustained grievous injuries. He was admitted in Vijaya Ortho and Trauma Centre as inpatient, spent more than Rs.1,50,000/- towards medical and incidental expenses. He requires Rs.25,000/- for future treatment. Further, the claimant was aged about 27 years at the time of accident, was an agriculturist and earning Rs.2 lakhs per year. With these reasons prayed to award compensation of Rs. 10 lakhs.

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Respondent No.1-owner of the offending truck remained exparte.

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Respondent No.2-insurer of the offending truck has appeared before the Tribunal and filed written statement

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denying contents of the claim petition. It further stated that accident occurred due to the rash and negligent riding of the motorcycle by the claimant. Its liability is restricted to terms and conditions of the policy of insurance and holding of valid and effective driving licence by the driver of the insured vehicle. Thus it prayed to dismiss the claim petition.

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The Tribunal framed necessary issues for its consideration. Claimant to prove his case, examined PW1 and PW2 and marked Exs.P.1 to P.15. Respondent No.2 examined one witness as RW1 and marked Exs.R.1 to R.4. The Tribunal after hearing both parties and appreciating the materials available on record, held that accident occurred due to contributory negligence of the driver of the lorry as well as the rider of the motorcycle and apportioned negligence on both in the ratio of 60:40. The Tribunal assessed age of the claimant at 34 years, his income as Rs.10,250/- per month, added 40% of his income towards future prospects, assessed permanent

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disability at 20% to the whole body, applied multiplier 16 and awarded in all a sum of Rs.7,49,514/- under the

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following heads.

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1.	Pain & Suffering	60,000.00
2.	Loss of income due to disability	5,51,040.00
3.	Loss of income during laid up period	20,500.00
4.	Loss of amenities	10,000.00
5.	Towards attendant charges, food and nourishment	4,000.00
6.	Conveyance charges	5,000.00
7.	Medical expenses	99,000.00
	Total	7,49,540.00

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The Tribunal directed respondent No.2 to pay Rs.4,49,724/-, i.e., 60% of total compensation with interest at the rate of 6% p.a. Being dissatisfied by the impugned judgment and award passed by the Tribunal, both the parties have preferred these appeals.

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The learned counsel for the appellant-insurer contends that rider of the motorcycle was not holding valid driving licence and the said motorcycle was also not insured. Without licence he was riding on the motorcycle

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on the public road, which has a heavy traffic. In addition to that, as per the evidence of PW1 he did not keep proper distance from the truck which was moving ahead of him. In the cross examination it is stated that there was sufficient space towards right side of the lorry and still he did not take the motorcycle to the right side of the road to overtake lorry. These facts clearly indicate that he had no riding skills to ride the motorcycle. Therefore, the negligence is entirely on the rider of the motorcycle for causing the accident in question and not on the owner of the lorry. Even if the charge sheet is taken into consideration at the most 20% of the negligence can be attributed to the driver of the lorry.

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He further submitted that claimant had sustained

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fractures of nasal bones, fracture of mandible bone which will not cause any permanent disability, which would affect earning capacity. A non treating Doctor has given disability certificate without mentioning the difficulties of the claimant and assessed disability. The Tribunal

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accepted the said disability and assessed permanent disability which is affecting earning capacity of the claimant as 50% which is not sustainable. He has also stated that Tribunal had added 40% of his income towards future prospects which is not permissible in case of disability to an extent of 20%. Therefore the said finding is also erroneous.

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The learned counsel for the insurer submits that amount of compensation awarded under other heads are on the higher side. Hence he prayed to recalculate the said amount of compensation awarded by the Tribunal.

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The learned counsel for the claimant vehemently contends that looking to the facts and circumstances of the case, accident had occurred due to negligence of the driver of the lorry in applying the brakes suddenly while plying on the road. However the Tribunal did not appreciate the evidence properly and held that claimant had contributed 40% negligence towards causing of the accident which is erroneous. At the most it may be 10%.

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Learned counsel for the claimant further contends that claimant had sustained injuries mentioned in the wound certificate due to fracture of nasal bones because of which he is unable to breath properly and it is seriously affecting his earning capacity. PW2 has given disability to an extent of 40%. The Tribunal ought to have accepted the same and awarded the compensation.

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Learned counsel further submits that the amount of compensation awarded under other heads are on the lower side and needs to be enhanced. With these reasons he prayed to enhance the amount of compensation.

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From the contentions of the parties, the following question arises for determination:

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(1) Whether the Tribunal erred in apportioning the negligence in the ratio of 60:40 between the driver of the lorry and the rider of the motorcycle and interference in the said finding is required?

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(2) Whether the Tribunal has awarded just and reasonable compensation?

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(3) What order?

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14. Point No.1: Entire Police records, i.e., prosecution papers, are placed on record. The complaint was lodged

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by the driver of the lorry, wherein he has stated that accident had taken place due to the negligence of the rider of the motorcycle, who was coming from the back side of the lorry. It appears the Investigating Officer has not recorded the statement of claimant. There were three eyewitnesses to the accident; however, none of them were examined by both the parties. Copy of the chargesheet is at Ex.P.7. It reveals that rider of the motorcycle, i.e., claimant, was not having valid and effective driving licence

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and the motorcycle was also not insured. Therefore he has been chargesheeted along with the driver of the lorry for the offences punishable u/S 279, 181 and 146 r/w Sec.

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196 of M.V. Act in addition to Sec. 279 and 338 IPC.

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It is not the case of the claimant that he had produced driving licence or policy of insurance before the Police or even before the Court. In the cross examination,

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PW1 has stated that he was holding valid driving licence to ride the motorcycle and even he could not say the RTO wherein he had obtained the driving licence. The case was pending before the Tribunal for a period of about three years. Till disposal of the case he did not produce the driving licence to show that whatever allegation made in the chargesheet are incorrect.

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In the cross examination he has stated that he was truck was going ahead him about a distance of 40 feet. He also stated that he did not make any attempt to proceed ahead using 60 feet road situated on the Eastern side of the lorry. Even he has not stated about what was the distance between his vehicle and the lorry when the driver of the lorry suddenly applied the brakes.

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Admittedly both the vehicles were plying on the public road. It appears to be the State Highway going from Khanapur to Belagavi. Considering the evidence on record it appears that claimant even had no skill of riding the motorcycle, otherwise he could have stopped the

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vehicle when he came to know that vehicle going ahead of him was suddenly applied break. Since it was in the Highway even he did not mention the distance between the motorcycle and the lorry when the driver of the lorry immediately applied the breaks. All these facts going to show that claimant was also negligent in riding his motorcycle. During the evidence he has stated that said lorry has no indicator lights while applying the brakes because of which he was unable to know that driver would apply brakes. He has also stated that abruptly and suddenly driver of the lorry applied brakes because of which he could not control the motorcycle and hit the lorry on its rear side.

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The respondent examined Manager of the Company. He is not an eyewitness to the incident. Respondent No.2 has not examined driver of the lorry to rebut the evidence of PW1. Considering the said contentions, the Tribunal held that driver of the lorry as well as rider of the motorcycle are negligent in driving their respective

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vehicles and apportioned negligence. The same does not call for interference by this Court. Accordingly point No.1 is answered in the negative.

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19. Point No.2: As per the medical records produced by the claimant he had sustained the following injuries:

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Head injury with comminuted depressed fracture of bilateral nasal bones, comminuted fracture of body of mandible with displaced fracture alveolar process of maxilla; open fracture of maxilla, mandible comminuted central segment open fracture, upper lip/nasal full thickness extensive injury with tooth loss;

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Ex.P.9 corroborates the above said injuries and specifically mention that multiple facial bone fractures described. Ex.P.10 is also stated about the fracture of above said wound and they are mal united.

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PW1 in his evidence has not disclosed that because of his deformities due to injury sustained in the accident. PW2 is not a treated Doctor but issued disability certificate, which refers to the pain in fractured area as

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well as difficulties in breathing. He certifies that claimant cannot do agriculture work. He has not given any reasons as to why claimant cannot do the agriculture work. Therefore assessment of disability by PW2 who is not a treated Doctor, appears to be obtained only for the purpose of obtaining higher amount of compensation.

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According to the case of claimant he was an agriculturist. He has not produced any documents showing that he has agricultural lands from which he was earning Rs.2 lakhs per annum. Moreover how the fracture of multiple facial bones would affect the agricultural operations is not explained by him or PW2.

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For the sake of discussion even if his disability is accepted, it is not his case that he sold the said lands and he continued to hold the lands. At the most, he must have lost income as to pay supervisory charges to look after his agricultural lands. Therefore there are no materials placed on record to show that he was earning Rs. 2 lakhs by agriculture and he lost said income. The Tribunal has

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rightly assessed the notional income of claimant as Rs.10,250/- per month on the basis of the chart prepared by the Karnataka State Legal Services Authority since the accident had occurred during the year 2017.

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The Tribunal has added 40% of the income towards future prospects which is not permissible. The law laid down in the case of National Insurance Company Ltd.

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Vs. Pranay Sethi reported in 2017 ACJ 2700 referred in the impugned judgment is in case of death of a person. Therefore the Tribunal has misread the above said judgment to add 40% of the income towards future prospects.

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The learned counsel for the appellant has relied upon the judgment of the Co-ordinate Bench of this Court in

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M.F.A. No. 102879/2016 disposed of on 20.12.2023 (Mahadev Irappa Rangannavar Vs. Shri Sagar Shailendra Patil and another) [unreported] wherein the Co-ordinate Bench relying on the judgment of the

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Hon’ble Supreme Court in the case of Sidram Vs.

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Divisional Manager, United India Insurance Company Limited and another reported in (2023) 3 SCC 439, held that to consider future prospects, victim of an accident should be suffering from permanent disability to an extent of more than 50% as held in the case of Sidram (supra).

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Looking to the facts of the present case as narrated above and injury suffered by the claimant, it is not a fit case to add future prospects of 40% to the notional income of the claimant. The Tribunal has erred in adding future prospects.

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The disability stated by the Doctor is pertaining to functional disability and Tribunal has to award compensation on the basis of occupational disability, i.e., the disability of the claimant affecting his earning capacity. As discussed above, the fractures that were sustained by the claimant were facial bone fractures. Under these circumstances, disability stated by PW2 that PW1 has been suffering from permanent disability to an extent of 40% is

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not believable. However, at the wisdom of the Tribunal, it has taken permanent disability at 20% to the whole body. Considering the facts of the case this Court is not inclined to interfere in the said finding.

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Undisputedly, multiplier applicable in the case is 16 since the age of claimant is 34 years. Further, the Tribunal has awarded lesser amount of compensation under the conventional heads. The claimant had sustained fracture and had taken treatment as inpatient. Therefore, the loss of income during laid up period is awarded on the lower side. Similarly, the compensation under the head attendant charges, food and nourishment, conveyance charges, are on the lower side and needs to be enhanced. The Tribunal has awarded medical expenses on the basis of receipts produced on record, which does not call for interference. For the aforesaid discussion following amount of compensation is awarded.

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1.	Loss of future income	3,93,600.00
2.	Pain and suffering	60,000.00
3.	Loss of income during laid	30,750.00

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	up period
4.	Loss of amenities	20,000.00
5.	Medical expenses	99,000.00
	Total	6,03,350.00
	Amount awarded by the Tribunal	7,49,540.00
	Reduced by	1,46,190.00

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Thus the claimant is entitled for total compensation of Rs.6,03,350/- as against Rs.7,49,540/- awarded by the Tribunal. The insurer-appellant herein is liable to pay 60% of Rs.6,03,350/-. Accordingly, point No.2 is answered partly in the affirmative.

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28. Point No. 3: For the reasons discussed above, the following order is passed.

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ORDER

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(1) Both the appeals are partly allowed.

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(2) Impugned judgment and award passed on 08.03.2022 by the XI Addl. Dist. Judge & AMACT,

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Belagavi, in M.V.C. No. 228/2019, is modified holding that the claimant is entitled for total compensation of

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Rs.6,03,350/- as against Rs.7,49,540/- awarded by

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the Tribunal. The insurer-appellant herein is liable to pay 60% of Rs.6,03,350/- to the claimant with proportional interest @ 6% P.A from the date of petition till its realisation.

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