Prema Vs Santhosh Kumar S

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.29.03.2019 PASSED IN MVC NO.1303/2018 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT CHANNARAYAPATNA), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 620/2020

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BETWEEN:

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KIRAN S/O SURESH AGED ABOUT 20 YEARS, R/AT GOLLARAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN 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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SANTHOSH KUMAR S S/O CHIKKEGOWDA R/AT SUNDAHALLI VILLAGE, SHRAVANABELAGOLA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT.

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MANAGER UNITED INDIA INSURANCE CO LTD

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HC-KAR

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MADHU COMPLEX MYSORE ROAD, CHANARAYAPATNA TOWN AND TALUK HASSAN DISTRICT

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...RESPONDENTS

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(BY SRI. B.A.RAMAKRISHNA, ADVOCATE FOR R2; V/O DTD 01.08.2025 NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 29.03.2019 PASSED IN MVC NO.1304/2018, ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT CHANNARAYAPATNA), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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Both these appeals arises out of common judgment and award dated 29.03.2019 passed in MVC Nos.1303/2018 and 1304/2018 by the 4th Additional District and Sessions Judge, Hassan District (sit at Channarayapatna), (for short ‘the Tribunal’). The claimant in MVC No.1303/2018 filed appeal in

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HC-KAR

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MFA No.804/2020 and claimant in MVC No.1304/2018 filed MFA No.620/2020 seeking enhancement of compensation.

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Both the claim petitions arise out of a common accident and therefore, taken up for common disposal.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 15.06.2018, the claimant in MVC No.1304/2018 was riding motorcycle bearing registration No.KA-13-U-1652 and the claimant in MVC No.1303/2018 was the pillion rider of the said motorcycle. Both of them were going towards Chanarayapatna. Near Beruru Village, Channarayapatna Taluk, they met with an accident due to rash and negligent riding of motorcycle bearing registration No.KA-06-ES-8527 (for short 'offending vehicle') by its rider. As a result, the claimant in MVC No.1303/2018 sustained fracture of shaft of tibia and the claimant in MVC No. 1304/2018 sustained commuted fracture of proximal third shaft of tibia and fibula of left leg. Both had taken treatment and both have

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suffered permanent disability. With these reasons, they have filed different claim petitions claiming compensation.

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Respondent No.1 is the owner and respondent No.2

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is the insurer of offending motorcycle. Respondent No.1 remained ex parte before the Tribunal. Respondent No.2 filed the written statement denying contents of the claim petition

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and denied its liability to pay the compensation. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimants to prove their case examined three witnesses as PW-1 to PW-3 and marked 33 documents, as per Exs.P-1 to P-33. Respondents have not led any oral and documentary evidence.

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The Tribunal after hearing both parties and appreciating the evidence available on record, by the impugned judgment, disposed of both the claim petitions, awarding the following amount of compensation:

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IN MVC NO.1303/2018

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Particulars	Amount in Rs.
Pain and sufferings	30,000/-
Medical expenses	1,25,000/-
Disability, loss of amenities,	1,00,000/-
inconvenience, discomfort, disadvantage, joyless life, frustration, loss of longevity, sorrow etc.
Attendant charges, food, diet,	50,000/-
nourishment and transportation
expenses and loss of income during laid up period etc.,
Total	3,05,000/-

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IN MVC NO.1304/2018

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Particulars	Amount in Rs.
Pain and sufferings	70,000/-
Medical expenses	4,00,000/-
Disability, loss of amenities,	1,50,000/-
inconvenience, discomfort, disadvantage, joyless life, frustration, loss of longevity, sorrow etc.
Attendant charges, food, diet,	1,00,000/-
nourishment and transportation
expenses and loss of income during laid up period etc.,
Total	7,20,000/-

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The Tribunal held that the accident occured due to contributory negligence of the claimant in MVC No.1304/2018 and rider of the offending motorcycle. The Tribunal has awarded global compensation under each head without making much effort to assess the amount based on the materials available on record.

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The learned counsel for the appellant/claimant vehemently contends that, in MFA No.804/2020, the claimant is an agriculturist and possesses a property extract marked as Ex.P.8. It is further submitted that she was selling milk to the dairy and has obtained a certificate to that effect, marked as Ex.P.7. She was earning Rs.20,000/- per month. However, the Tribunal has not at all considered the same. He further contends that the Tribunal has awarded global compensation under the head of loss of amenities, permanent disability and other expenses. He further stated that there was no proper evaluation of the claimant's income, which has adversely affected the determination of her earning capacity. Appellant has no objection regarding the amount awarded under the head medical expenses and attendant charges etc. But the amount of

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compensation awarded towards loss of future earning capacity due to permanent disability is highly inadequate. Therefore, prayed to enhance the same.

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Learned counsel for the appellant in MFA No.620/2020 contends that the claimant sustained an open commuted fracture of third shaft of tibia and fibula of left leg. He was admitted thrice to the hospital, initially for 15 days, and subsequently for 3 days and 7 days, making a total of 25 days . Due to open comminuted fracture, an external fixator was fixed at the fracture spot. He was aged about 18 years and as such, both the claimants have examined the doctor, who had issued the disability certificate. However, the Tribunal did not consider the same. The appellant has no objection in respect of the compensation awarded under the head of pain and suffering, medical expenses, attendant and other charges etc. The main grievance of the claimant is that the amount awarded under the head loss of future earning capacity due to permanent disability, including other heads, is highly inadequate. Evidence of doctor was not at all considered by the Tribunal to consider the loss of future earning capacity. Therefore, prayed to re-

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appreciate the evidence and award just and proper compensation.

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Learned counsel further contends that the Tribunal has erroneously held that the claimant in MVC No.1304/2018 (appellant in MFA No.620/2020) had contributed negligence to an extent of 25% for causing the accident in question. The Tribunal assigned the reason that the rider of the motorcycle was not wearing a helmet at the time of accident and he had no valid and effective driving license. But that cannot be a ground to prove that it amounts to negligent in riding the motorcycle. While it may be true that such conduct amounts to a violation of the Motor Vehicles Rules, making him liable for punishment in any criminal case that may be registered against him, it certainly does not bar him from claiming compensation, nor can it be construed as negligence in riding the motorcycle. He relied on the judgment in the case of Sudhir Kumar Rana Vs. Surinder Singh and Others¹ . Therefore, he prays to set aside the said finding of the Tribunal that the accident occurred due

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1 AIR 2008 SC 2405

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to negligence of rider of the motorcycle i.e., appellant in MFA No.620/2020 and prays to enhancement of compensation.

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Learned counsel for respondent No.2 in both cases vehemently contended that the Tribunal has awarded more than just compensation. In the impugned judgment, the Tribunal has assigned reasons for not awarding compensation in respect of loss of future earning capacity due to permanent disability independently. Since the Tribunal did not believe the evidence of PW.3, the amount of compensation awarded is more than adequate, though it is not bifurcated under the individual heads. Therefore, reconsideration of the same is not required. He further contends that it is an admitted fact by PW.1 and PW.2 that rider of the motorcycle i.e., the appellant in MFA No.620/2020, had no valid and effective driving licence to ride the said motorcycle at the time of accident. Both of them have also admitted that he was not wearing helmet. He was riding the motorcycle on a public road i.e., on the main road, without taking proper precautions, which certainly amounts to negligence. He has not stated anywhere that he was an expert in riding the motorcycle or had experience in

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riding the motorcycle. Under these circumstances, riding a vehicle on a public road without a valid license is not only an offence but also constitutes negligence. The judgment in the case of Sudhir Kumar Rana (supra) is not applicable to the facts of the present case. The Tribunal, after properly appreciating the evidence, held that the claimant in MVC No.1304/2018 contributed to the accident in question and apportioned 25% of the liability to her. It does not call for any interference by this Court. With these reasons, prayed to dismiss both the appeals.

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IN MFA NO.620/2020

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The facts of the accident and injury sustained by both the claimants are not in serious dispute. Respondents have not challenged the impugned judgment and award in both the judgments. Therefore, there is no need to reconsider the said facts.

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The claimant/appellant in MFA No.620/2020 was admittedly rider of the vehicle bearing registration No.KA-13-U1652 and he was not holding a valid and effective driving

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licence at the time of riding of the said vehicle. It is also not in

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dispute that he was not wearing a helmet. In the crossexamination of PW.2 i.e., the appellant in MFA No.620/2020, nothing was brought out to show that he was negligently riding

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the said vehicle on the public road. On the contrary, it was suggested that he was riding a vehicle in a high speed and hit against the unknown vehicle and sustained the injuries. Three days after the said incident, he lodged a false complaint against rider of the offending vehicle. Except for the said suggestion, it was not brought out that he had no experience in riding the motorcycle. It is an assertive contention of the respondent No.2 that the accident occurred due to negligence of the appellant in MFA No.620/2020. The owner or rider of the offending vehicle was not examined to rebut the evidence of PW.1 and PW.2. Fairly, both PW.1 and PW.2 admitted that PW.2 had no valid license and he was not wearing a helmet at the time of accident. The Tribunal without assigning any other reasons held that PW.2 contributed to an extent of 25% for causing the accident in question. The said finding is erroneous.

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In the similar facts and circumstances of the case,

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Hon'ble Apex Court in the case of Sudhir Kumar Rana (referred supra) held that:

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"8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence."

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In the said case, without any other material, the Tribunal as well as the High Court held that since the rider of the vehicle had no valid driving licence, it amounted to negligent riding. However, the Hon’ble Apex Court did not agree with this view and, on the contrary, held that mere non-holding of a driving licence by itself does not amount to negligent driving or riding

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of the vehicle, therefore, the finding of the Tribunal in this regard is not tenable.

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The claimant in MVC No.1304/ 2018 sustained an open comminuted fracture of both the bones of left leg. He was aged about 18 years. He was examined as PW.2 and in his evidence he has stated about the difficulties he has been facing after sustaining the injuries. He was examined by PW.3, who assessed restriction of movement of the left leg and assessed the proper disability to the whole body as 21.24%. The restrictions in mobility and stability components were mentioned in his affidavit and it is reproduced in the impugned judgment. The disability stated by PW.3 is a physical disability. When there are materials, it was a duty of the Tribunal to consider the same. However, the Tribunal didn't consider them and assessed compensation. Considering the nature of work, age of the claimant and injuries sustained by him, the disability affecting his earning capacity is taken as 15% to the whole body.

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The claimant was working as a Bar-bender according to his evidence and he contends that he was earning

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Rs.20,000/- per month. There are no materials to substantiate the same. Therefore, his notional income has to be assessed. Following the chart prepared by the Karnataka State Legal Services Authority, his national income has to be taken as Rs.12,500/- per month. According to medical records, he was aged about 19 years at the time of accident and the proper multiplier applicable to the facts of the case is '18'. On the basis of the same, loss of future earning capacity due to permanent disability is to be assessed.

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The Tribunal in this case awarded global compensation under the heads of loss of amenities, inconvenience, discomfort, disadvantage, joyless life, frustration, loss of longevity, sorrow etc. The said compensation needs to be bifurcated and loss of amenities has to be awarded under a separate head. The appellant has not disputed the amounts awarded under the heads of 'pain and suffering', 'medical expenses' and attendant charges etc. Therefore there is no need to recalculate the same.

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IN MFA NO.804/2020

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In this case, the claimant sustained type 2 open fracture of middle third shaft of right tibia. She was admitted to the hospital as an inpatient on 15.06.2018 and discharged on 24.06.2018. PW.3 assessed her permanent disability at 14.2% to the whole body. As stated in the above case, the disability stated by PW.3 is a physical disability. Considering the materials, functional disability of the claimant affecting her earning capacity can be taken as 10% to the whole body. The age of the claimant as per claim petition is 35 years. PW.3 has stated that her age was 36 years. Therefore, her age is taken as 36 years. The multiplier applicable between the age group 36 to 40 is '15' and the same is applicable to the facts of this case.

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She has produced Exs.P.7 and P.8 to prove her income. The author of Ex.P.7 is not examined and supporting materials are also not placed on record. It is not the case of appellant that after the accident she was not cultivating the said land or it was left fallow or she has sold the said property. Whatever income she could have earned from the said land might have reduced due to the accident. Under these

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circumstances, her notional income has to be assessed. As

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stated in the above case, her national income is taken as Rs.12,500/- per month. In this case as well, the learned counsel for the appellant has submitted that the amounts awarded under the heads of 'pain and suffering', 'medical expenses', and 'attendant charges', etc., are not disputed. The dispute pertains only to the amount awarded under the head of 'pain and suffering. Considering the same, the following amounts are awarded in both cases:

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IN MFA NO.804/2020

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Particulars	Amount in Rs.
Pain and sufferings	40,000/-
Medical expenses	1,25,000/-
Loss of future earning capacity due to disability	2,25,000/-
(Rs.12,500/- x 12 x 15 x 10%)
Attendant charges, food, diet, nourishment and transportation expenses and loss of income during laid up period etc.,	50,000/-
Loss of amenities	25,000/-
Total	4,65,000/-
Amount awarded by the Tribunal Enhancement-	3,05,000/- *1,60,000/-*

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IN MFA NO.620/2020

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Particulars A	mount in Rs.
Pain and sufferings	70,000/-
Medical expenses	4,00,000/-
Loss of future earning capacity due to disability	4,05,000/-
(Rs.12,500/- x 12 x 18 x 15%)
Attendant charges, food, diet, nourishment and transportation expenses and loss of income during laid up period etc.,	1,00,000/-
Loss of amenities	25,000/-
Total	10,00,000/-
Add: 25% contributory negligence awarded by the Tribunal is set aside	1,80,000/-
Amount awarded by the Tribunal Enhancement-	7,20,000/- *4,60,000/-*

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Undisputedly, the respondents are jointly and severally liable to pay the enhanced amount of compensation with interest at the rate of 6% p.a. on the

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enhanced amount from the date of petition till its realization.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeals are allowed in part .

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ii) The judgment and award dated 29^th March 2019, passed in MVC.Nos.1303/2018 and 1304/2018, by the 4 th Additional District and Sessions Judge, Hassan District (sit at Channarayapatna), stands modified.

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iii) The claimant in MFA No.804/2020 is entitled to enhanced compensation of Rs.1,60,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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iv) The claimant in MFA No.620/2020 is entitled to enhanced compensation of Rs.4,60,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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v) The respondent No.2 - Insurance Company in both the cases shall deposit the

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