Santhosh Kumar Vs the Manager

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1 - NC: 2025:KHC:946 MFA No. 5974 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA MISCELLANEOUS FIRST APPEAL NO.5974 OF 2014(MV-I)

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BETWEEN:

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SANTHOSH KUMAR, S/O LATE MALLIKARJUNA, AGED ABOUT 24 YEARS, R/AT MEGHALA BEEDI, BANATHAMARAMMANA, BADAVANNA, KANAKAPURA TOWN, KANAKAPURA, RAMANAGARA DISTRICT.

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…APPELLANT

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(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)

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AND:

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Digitally signed by AASEEFA PARVEEN

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Location: HIGH COURT OF KARNATAKA

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THE MANAGER, NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, NO.2-B,UNITY BUILDING ANNEXE, MISSION ROAD,LALBAGH ROAD, BANGALORE-560 027.

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JAYARAM S/O THIMMAIAH, NO.319,3RD CROSS, 3RD MAIN ROADM, KAMALANAGAR, BANGALORE-560 079

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…RESPONDENTS

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(BY SMT. HARINI SHIVANAND, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH; V/O. DATED 19.01.2015)

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.07.2014 PASSED IN MVC NO.2017/2012 ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM, MEMBER-MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

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ORAL JUDGMENT

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Heard Sri.Shripad V. Shastri, learned counsel for the appellant and Smt.Harini Shivanand learned counsel for respondent No.1. Both the learned counsel appears through video conference.

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The claimant in MVC No.2017/2012 that stood pending before the Motor Accident Claims Tribunal, Bengaluru and was disposed of through order dated 9.7.2014 is before this Court seeking enhancement of compensation.

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The fact of the case in nutshell as projected by the appellant before the Tribunal are that on 29.03.2012 while he was proceeding on his motorcycle bearing Registration No.KA.42 L.1674 and was riding the said motorcycle, one Tempo bearing Registration No.KA-42-2894, which was driven

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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by the driver in a rash and negligent manner hit the two wheeler, due which the appellant fell down and sustained injuries.

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Arguing the matter, learned counsel for the appellant contends that the accident occurred due to negligence on part of the driver of the tempo vehicle which is involved in the accident. However, only because the appellant failed to produce his driving licence, the Tribunal fastened liability to an extent of 25% on part of the appellant for the accident to occur. Learned counsel states that sufficient material was placed before the Tribunal to show that the entire negligence lies on part of the driver of tempo vehicle which is involved in the accident. Learned counsel also contends that no evidence whatsoever was produced by the respondents to establish any act of negligence on part of the appellant.

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Smt.Harini Shivanand learned counsel for respondent No.1 submits that as the appellant failed to produce his driving licence, the Tribunal held that contributory negligence can be taken to an extent of 25% and thereby

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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deducted 25% of the amount awarded and ordered the insurance company to pay 75% of the awarded amount.

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Admittedly no evidence whatsoever was produced by the respondents projecting negligence on part of the appellant. On the other hand the appellant examined himself as PW1 and narrated the manner of happening of accident. He also produced Ex.P1-copy of FIR, Ex.P2-copy of mahazar, Ex.P3- copy of seizer mahazar, Ex.P4-copy of IMV report and Ex.P9- copy of charge sheet in support of his contention that the driver of the tempo vehicle was at fault. Even if it is considered that the appellant was not holding valid driving licence to drive motorcycle by the date of accident, that fact alone cannot be taken to hold that he is responsible for the accident to occur and that his negligence is to an extent of 25%. When the entire material that is produced clearly speaks that the investigating agency after completion of the investigation came to conclusion that the accident occurred due to the negligence of the driver of the tempo vehicle which is involved in the accident, the Tribunal is not expected to take a different view, that too in the absence of any convincing material to show that the negligence on part of the appellant

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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also contributed for the accident to occur. Therefore, this Court is of the view that the respondent No.1 is at liability to pay entire amount that is awarded as compensation.

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Arguing on the quantum that is awarded as compensation, learned counsel for the appellant submits that the appellant sustained grievous injuries in the road traffic accident and became disabled by an extent of 80%. PW3 who examined the appellant clearly speaks about the said fact. However, the Tribunal did not award any sum as compensation towards loss of future earnings which is unjustifiable. Learned counsel further submits that the compensation granted under all other heads is also on lower side.

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Smt.Harini Shivanand learned counsel for respondent No.1 on the other hand states that the Tribunal awarded justifiable sum under all heads, except towards loss of future earnings on account of disability. Learned counsel further submits that PW3 clearly deposed that he assessed the disability at pre-matured stage and thus the disability in respect of whole body cannot be taken as 80%.

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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The Tribunal through the impugned order awarded a sum of Rs.1,00,000/- under the head pain and suffering, Rs.1,97,200/- towards medical expenses, Rs.20,000/- towards future medical expenses, Rs.10,000/- towards conveyance, nourishment and other incidental charges and Rs.50,000/towards loss of amenities. The Tribunal is of the opinion that the appellant is entitled to a sum of Rs.3,77,200/- as compensation in total.

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By all the evidence produced, the appellant succeeded in establishing that he sustained fracture of C6, C7, T1, Brachial plexus injury, fracture of clavicle with fracture scapula left side and fracture of D11 and D12. As rightly contended by learned counsel for respondent No.1, PW3 in cross-examination stated that he assessed disability at a premature stage. However, having considered the nature of injuries, this Court is of the view that disability in respect of whole body can be taken as 20%. The version of the appellant is that he was earning Rs.5,000/- per month as a quarry supervisor. The documents produced by the appellant establishes that he was aged about 22 years by the date of accident. Thus, taking the income of the appellant as

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NC: 2025:KHC:946 MFA No. 5974 of 2014

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Rs.5,000/- per month, the disability in respect of whole body as 20% and by applying appropriate multiplier '18', the compensation which the appellant is entitled under the head loss of future earnings on account of permanent physical disability to the whole body will be Rs.2,16,000/- (5,000/- x 12 x 18 x 20%). The compensation that is granted by the Tribunal under all other heads is justifiable. Thus, the appellant is entitled to a sum of Rs.2,16,000/-, in addition to the sum that is awarded by the Tribunal.

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Thus, the appeal is disposed of with the following

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ORDER

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i) The appeal is allowed in part.

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ii) The contributory negligence attributed on part of the appellant to the extent of 25% is set aside.

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iii) The respondent No.1 is at liability to pay entire sum of Rs.3,77,200/- that is awarded by the Tribunal together with the enhanced sum of Rs.2,16,000/- to the appellant.

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iii) The enhanced sum shall carry interest at the rate of 6% per annum from the date of petition till the date of deposit.

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