Shambhu B S Vs Ravikumar

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NC: 2025:KHC:31228 MFA No. 7483 of 2015

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF AUGUST, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 7483 OF 2015 (MV-I)

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BETWEEN:

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SHAMBHU B S, S/O LATE SIDDARAMANNA, AGED ABOUT 62 YEARS, R/AT NO.114, NANDI BEST COUNTY-II, VIDYARANYAPURA POST, BENGALURU-560 097. D L ADDRESS: NO.178, BEL COLONY, JALAHALLY POST, BENGALURU-560 013.

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…APPELLANT

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(BY SRI K V SHYAMAPRASADA, ADVOCATE)

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AND:

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Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA

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RAVIKUMAR, S/O NARASIMHA MURTHY, MAJOR,

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R/AT NO.213, NARAYANAPPA ROAD, M E S SCHOOL, NAGASHETTIHALLI, BENGALURU-560 094.

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M/S RELIANCE GEN. INSURANCE CO. LTD., NO.28, CENTENARY BUILDING, 5^TH FLOOR, M.G.ROAD, BENGALURU-560 001. REP. BY ITS MANAGER.

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…RESPONDENTS

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(BY SMT. T.N MALATHI, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V/O DATED 11.03.2022)

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2 - NC: 2025:KHC:31228 MFA No. 7483 of 2015

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.06.2015 PASSED IN MVC NO.4691/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES AND MEMBER MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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Being aggrieved by the judgment and award in MVC No.4691/2013 by learned III Additional Senior Civil Judge and Member, MACT, Court of Small Causes, Bengaluru, dated 30.06.2015, the petitioner is before this Court in appeal.

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The factual matrix that is relevant for the purpose of this appeal are that, on 21.07.2013 at about 01.30 p.m., the petitioner was proceeding on his motorcycle bearing No. KA.04.HN.2802 near Gangamma

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Circle Bus Stop at Jalahalli, the driver of the tempo traveller bearing No.KA.05.AD.7546 came in rash and negligent manner and without giving any signal, overtook

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HC-KAR

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the two wheeler of the petitioner and stopped the vehicle abruptly resulting in the petitioner hitting against the rear side of the tempo traveller and due to the same, the petitioner sustained grievous injuries. He was immediately shifted to B.E.L., Hospital, Bengaluru, where he took treatment and thereafter, he was shifted to M.S. Ramaiah Hospital, Bengaluru. It was contended that the negligence was on the part of the driver of the tempo traveller which is owned by respondent No.1 and insured by respondent No.2. Accordingly, the petitioner claimed adequate compensation from them. The petitioner also contended that he was aged 60 years, earning ₹20,000/- per month

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by doing Real Estate business and he has suffered the functional disablement and as such, he is entitled for the compensation.

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Respondent No.1 did not appear despite service of notice. Respondent No.2- Insurance Company appeared through its counsel and resisted the claim petition contending that the compensation claimed is highly

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excessive, imaginary and untenable and that there was negligence on the part of the petitioner himself. It was contended that there is a delay of two days in filing the FIR and as such, the vehicle of respondent No.1 has been falsely implicated in the case. Inter alia , it was also contended that the driver of the tempo traveller was not having a valid driving licence at the time of the accident.

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On the basis of the above contentions, the Tribunal framed appropriate issues and the petitioner was examined as PW1 and Exhibits P1 to P12 were marked in evidence. The RMO of M.S. Ramaiah Hospital was examined as PW2 and the Medical Officer, who assessed the disability of the petitioner was examined as PW3 and Exhibits P13 to P17 were marked in evidence. The Official of respondent No. 2-Insurance Company was examined as RW1 and Exhibit R1 was marked.

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5. After hearing both the sides, the Tribunal came

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to the conclusion that there is a contributory negligence on

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the part of the petitioner to the extent of 25% and determined the total compensation payable at ₹2,20,000/-

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under different heads as below:

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Sl.No.	Compensation Heads	Amount
1.	Pain and sufferings	Rs.50,000/-
2.	Loss of amenities	Rs.25,000/-
3.	Medical expenses	Rs.50,000/-
4.	Loss of future income	Rs.51,000/-
5.	Loss of income during laid up period and rest period	Rs.26,000/-
6.	Conveyance, nourishment & attendant charges	Rs.10,000/-
7.	Repair charges	Rs.8,000/-
	Total	Rs.2,20,000/-

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Being aggrieved by the same, the petitioner is

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before this Court in appeal.

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The arguments by the learned counsel appearing for the petitioner/appellant and the learned counsel for respondent No.2-Insurance Company are heard and the Tribunal records have been secured.

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The learned counsel appearing for the appellant contended that the Tribunal erred in fastening 25%

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contributory negligence on the appellant. It is contended that the cross-examination of PW1 clearly shows that the driver of the tempo traveller had overtaken the two wheeler of the petitioner after brushing it on the side and had abruptly stopped the same, resulting in the petitioner's two wheeler touching the rear of the tempo traveller. It is also contended that the Ex.P3 which is the sketch of the spot of the accident prepared by the Investigating Agency was not properly assessed by the Tribunal. Therefore, it is contended that fastening of liability on the petitioner to the extent of 25% is not permissible. He also contends that the quantum of compensation awarded by the Tribunal is also on the lower side and there is a need for reassessment of the same.

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9 . Per contra, learned counsel appearing for the respondent No.2-Insurance Company defends the

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impugned judgment and points out that the crossexamination of PW1 clearly establish that there was

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NC: 2025:KHC:31228 MFA No. 7483 of 2015

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contributory negligence on his part. He also defends the

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quantum of compensation awarded by the Tribunal.

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A perusal of the records would reveal that the FIR was registered by the Police while the petitioner was still taking treatment in the hospital. It is also relevant to note that the Investigating Officer has visited the spot and conducted the spot mahazar and has drawn a sketch as per Exhibit P3. A perusal of Exhibit P3 shows that the accident had occurred after a junction and the tempo traveller had travelled across the road, coming towards its left side while overtaking the two wheeler of the petitioner. This aspect shows that there was negligence on

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the part of the tempo traveller. Obviously, the charge sheet has been filed against the driver of the offending vehicle. The cross-examination of PW1 would show that the tempo traveller came from his hind side and after hitting his vehicle, it went ahead and stopped suddenly. The perusal of MVI Report at Exhibit P5 would show that the front of the two wheeler was damaged as well as the

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rear of the tempo traveller had suffered dents. This would

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indicate that the tempo traveller had moved across the road at the spot of the accident and had come in contact with the two wheeler and after crossing it, it suddenly stopped. The spot sketch clearly establish that the accident occurred at a distance of 5 feet from the edge of the road. There was no reason for the driver of the tempo traveller to come on the extreme left side where the two wheeler was moving. Even if we hold that the tempo traveller stopped abruptly, obviously, the two wheeler which was on the back side of the tempo traveller cannot be found fault with. There was ample space for the tempo

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traveller to proceed on the right side of the two wheeler and this aspect has not been explained by respondent No. 2 either through the testimony of RW1 or by way of cross- examination of PW 1.

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In the light of the above, the finding of the

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Tribunal that there is a contributory negligence to the extent of 25% by the petitioner appears to be bereft of

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any acceptable reason. Under these circumstances, the finding of the Tribunal to that extent is not sustainable in law.

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So far as the quantum of compensation is concerned, it is relevant to note that the petitioner is aged about 63 years and though he claims that he was doing real estate business, there is nothing on record to show the same. The Tribunal has assessed the income of the petitioner at ₹6,000/- per month which cannot be found fault with. The petitioner had sustained fracture of the zygomatic arch and according to PW3, there is a disability of 10 to 20 percent. After examining the evidence of medical records, the Tribunal holds that there is a disability of 10% and calculates the compensation amount. No fault can be found with the said calculation. It is pertinent to note that the functional disability of the petitioner by way of fracture of the zygomatic arch and other bones of his face would not come in the way of his

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NC: 2025:KHC:31228 MFA No. 7483 of 2015

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earning capacity and therefore, it is not necessary for this Court to interdict the Tribunal's finding on this aspect.

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The Tribunal has awarded a sum of ₹50,000/-

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towards the pain and sufferings, ₹50,000/- towards medical expenses, ₹25,000/- towards loss of amenities, ₹51,000/- towards loss of future income, ₹26,000/towards loss of income during laid up period and ₹10,000/towards conveyance, nourishment and attendant charges. These aspects also cannot be found fault with. In addition to it, the Tribunal has also assessed the damage to his vehicle to the extent of ₹8,000/-. This Court do not find any reason to hold that the compensation awarded by the Tribunal is on the lower side. There is no reason to enhance the compensation amount awarded to the petitioner. Under these circumstances, the indulgence is required only in respect of the contributory negligence of 25%. Hence, the appeal deserves to be allowed in part. Consequently, the following:

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HC-KAR

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:ORDER:

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The appeal is allowed in part.

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The appellant is entitled for a total compensation of ₹2,20,000/- as determined by the Tribunal. The fastening of 25% contributory negligence on the part of the appellant is set aside.

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Respondent No.2-Insurance Company is directed to deposit the entire compensation amount as determined by the Tribunal within six weeks from the date of this judgment.

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All other aspects of the impugned order remain unaltered.

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Sd/(C M JOSHI) JUDGE

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tsn*

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List No.: 1 Sl No.: 26

Shambhu B S v. Ravikumar

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Shambhu B S v. Ravikumar

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