Yashwantha Vs Gopala

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.03.2023 PASSED IN MVC No.1817/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPTANA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No. 6230/2023

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BETWEEN:

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THE MANAGER UNITED INDIA INSURANCE CO. LTD., KANTHARAJ URS ROAD MYTHRI ORCADE, NEAR SARASWATHI TALKIES MYSORE CITY NOW BY ITS REGIONAL OFFICE KRISHI BHAVAN, NRUPATHUNGA ROAD BANGALORE – 560 001. BY ITS AUTHORISED SIGNATORY.

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...APPELLANT

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(BY SRI B A RAMAKRISHNA, ADVOCATE)

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AND:

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SRI YASHWANTHA AGED ABOUT 27 YEARS S/O KRISHNAPPA

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HC-KAR

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NC: 2026:KHC:37906 MFA No. 5429 of 2023 C/W MFA No. 6230 of 2023

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CNR: KAHC010402652023

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R/O GANJAM, K.G.ROAD SRIRANGAPATNA TOWN AND TALUK MANDYA DISTRICT.

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SRI GOPALA

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MAJOR BY AGE S/O RAMALINGACHARA No.34, DODDABYADARAHALLI VILLAGE PANDAVAPURA TALUK, MANDYA DISTRICT.

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...RESPONDENTS

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(BY SRI SREENIVASAN M Y, ADVOCATE FOR R1 V/O DTD. 17.6.2026, NOTICE TO R2 D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.03.2023 PASSED IN MVC No.1817/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T, SRIRANGAPATNA, AWARDING COMPENSATION OF Rs. 5,37,926/- WITH INTEREST AT 6 PERCNET P..A. FROM THE DATE OF PETITION TILL PAYMENT OF THE ENTIRE AMOUNT.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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MFA No. 5429/2023 is filed by the claimant

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seeking enhancement of compensation and MFA No. 6230/2023 is filed by the Insurer challenging the liability and quantum of compensation awarded in the judgment

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HC-KAR

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CNR: KAHC010402652023

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and award dated 01.03.2023 passed in MVC No. 1817/2018 by the Additional Senior Civil Judge,

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Srirangapatna.

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Even though the appeals are listed for `Admission' today, they are taken up for hearing with the consent of the learned counsel appearing for parties.

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Claimant made a claim petition before the

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Tribunal praying to award compensation for the injuries sustained by him in a road traffic accident that occurred on 27.11.2018 due to the rash and negligent driving by the rider of bike bearing registration No. KA-11-Q-9066. The Tribunal after recording evidence, appreciating the evidence on record, assessed the compensation and

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awarded compensation under different heads as under:

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Head of compensation	Amount
1. Pain, shock and agony	Rs.30,000/-
2. Medical expenses	Rs.31,426/-
3. Food, diet, Nourishment, conveyance, and other incidental expenses	Rs.12,000/-

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HC-KAR

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CNR: KAHC010402652023

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4. Loss of income during treatment period	Rs.12,500/-
5. Towards Future Medical expenses	Rs.5,000/-
6. Loss of income towards permanent disability	Rs.4,32,000/-
7. Disappointment and discomfort and loss of amenities	Rs.15,000/-
TOTAL	Rs.5,37,926/-

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The Tribunal has also awarded i nterest at the

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rate of 6% p.a. from date of petition till the date of realization and directed respondent No. 2 – Insurer to deposit the said award amount with interest. The Tribunal held that the accident occurred due to the sole negligence on the part of rider of insured vehicle. Insurer has challenged liability and also quantum of compensation and claimant has filed the appeal seeking enhancement of the compensation awarded.

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Heard learned counsel for claimant and learned

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counsel for Insurer.

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HC-KAR

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CNR: KAHC010402652023

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Learned counsel for Insurer would contend that

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charge sheet has been filed against the rider of the insured vehicle – claimant and owner of the vehicle. That itself indicates that there is contributory negligence on the part of claimant also. Claimant was not holding valid Driving License as on the date of the accident and therefore, he has contributed to the accident. There is head on collision and it is in the middle of the road and that itself indicates that there is contributory negligence on the part of the claimant. Considering the said aspect, the Tribunal has erred in saddling the entire liability on the insurer of the offending vehicle. He further contends that C.W.1 - Doctor who examined the claimant has stated that

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the claimant is having 27% disability of left lower limb, 20% disability of left upper limb and to particular portion of the body is 47% and the Tribunal has erred in taking the disability to the whole body at 16%. With this, he prayed to allow the appeal filed by the Insurer.

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HC-KAR

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CNR: KAHC010402652023

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Learned counsel for claimant would contend

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that the charge sheet is filed against the rider of insured vehicle for offence under Sections 279, 337 and 338 of IPC and that itself indicates that the accident occurred due to the sole negligence on the part of the rider of the insured vehicle. A perusal of the sketch indicates that the accident has occurred on the left side of the road on which the claimant was moving and there is no negligence on the part of the claimant. Even though there is no Driving License for the claimant to ride the motorcycle, there is no negligence on the part of the claimant in riding the motorcycle. He has placed reliance on the decision of the Hon'ble Apex Court in the case of Sudhir Kumar Rana

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Vs. Surinder Singh and others reported in AIR 2008 SC 2405 . He further submits that claimant had sustained two fractures, was admitted in the hospital for 12 days and considering the same compensation awarded by the Tribunal under the heads pain and suffering’, loss of amenities’ `loss of income during laid up period’ and

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HC-KAR

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CNR: KAHC010402652023

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`future medical expenses’ are on lower side. With this he prayed to allow the appeal filed by the claimant and enhance the compensation.

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Having heard learned counsel for the parties,

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this Court has perused the judgment, award, Ex.P.3 and Ex.P.6 – copies of charge sheet and mahazar made available by learned counsel for claimant.

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Considering the above, the following points

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arise for consideration in these appeals:

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a) Whether the Tribunal is justified in holding that the accident occurred due to the sole negligent driving of the rider of the insured vehicle?

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b) Whether the compensation awarded by the Tribunal is just and proper?

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ON POINT No. (a) : The accident occurred on

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27.11.2018 at about 09.45 pm on Bannuru

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Srirangapatna road. Ex.P.3 is the mahazar of the spot of accident and it contains sketch of the spot of accident. As per the evidence of P.W.1, i.e. cross-examination, width of

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HC-KAR

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CNR: KAHC010402652023

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road is 20 feet and he was riding his motorcycle from Srirangapatna side towards Bannuru and driver of the offending/insured vehicle was driving from Bannuru to Srirangapatna. On perusal of the said sketch contained in Ex.P.3 it is seen that the accident occurred at a distance of 3 feet from the road side on which the claimant was riding the motorcycle. Since the width of the road is 20 feet it cannot be said that the accident has taken place in the middle of the road. Even though it is stated that the accident is head on collision, as the accident has occurred on the right side of the offending vehicle, it clearly indicate that the accident occurred due to the sole rash and negligent driving by the rider of the insured vehicle. Charge sheet - Ex.P.6 is filed against the rider of the insured vehicle for offence under Sections 279, 337 and 338 of IPC. Charge sheet filed against the claimant is for offence under Section 181 of the Motor Vehicles Act and it

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is for driving the motorcycle without Driving License. As per the said charge sheet, the accident occurred due to

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HC-KAR

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CNR: KAHC010402652023

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the sole negligence on the part of the rider of the insured vehicle. Merely because claimant was not holding Driving License it cannot be held that he has contributed to the accident. The Hon'ble Apex Court in the case of Sudhir

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Kumar Rana (supra) has observed as under:

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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 which was being driven 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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There is nothing on record to show that claimant was driving his motorcycle rashly and negligently.

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HC-KAR

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CNR: KAHC010402652023

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If he was not driving rashly and negligently, merely because he was not holding Driving License, he could not be held to be guilty of contributory negligence. Considering all these aspects the Tribunal has rightly held that the accident occurred due to the rash and negligent driving by the rider of the insured vehicle. Accordingly, point No. (a) is answered.

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ON POINT No. (b) Claimant had sustained fracture of left shaft femur, fracture of left DER and lacerated injury. C.W.1 is the Doctor who examined the claimant and assessed his disability. The Doctor has stated that claimant is having disability of lower limb at 27%, disability of left upper limb at 20% and total disability towards particular portion of body is 47%. The Tribunal considering the evidence of the Doctor has rightly taken 1/3^rd of said disability, i.e., 16% to the whole body. The Tribunal has rightly taken the income and rightly awarded loss of future income in a sum of Rs.4,32,000/-.

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HC-KAR

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CNR: KAHC010402652023

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Considering that the claimant had sustained 2 fractures, compensation awarded by the Tribunal towards pain and suffering’ requires to be enhanced from Rs.30,000/- to Rs.60,000/- and loss of amenities’ has to be enhanced from Rs.15,000/- to Rs.30,000/-.

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Considering that the claimant had sustained 2 fractures, of upper limb and lower limb, had to take rest for 3 months, compensation under the head `loss of income during laid up period’ requires to be awarded for 3 months in a sum of Rs.37,500 (12500 X 3).

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C.W.1 – Doctor has stated that claimant has to undergo surgery for removal of implant and stated that he has to incur expenses of about Rs.10,000/to Rs.15,000/- for the same. Inspite of said evidence, the Tribunal has erred in awarding only Rs.5,000/- towards future medical expenses’. Therefore, claimant is entitled to future medical expenses’ in a sum of Rs.15,000/-.

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HC-KAR

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CNR: KAHC010402652023

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The Tribunal has rightly awarded compensation

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under the heads medical expenses’ and food, diet, nourishment, conveyance and other incidental expenses’.

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In view of the above, claimant is entitled to

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total compensation under various heads as under:

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Head of compensation	Amount
1. Pain, shock and agony	Rs.60,000/-
2. Medical expenses	Rs.31,426/-
3. Food, diet, Nourishment, conveyance, and other incidental expenses	Rs.12,000/-
4. Loss of income during treatment period	Rs.37,500/-
5. Towards Future Medical expenses	Rs.15,000/-
6. Loss of income towards permanent disability	Rs.4,32,000/-
7. Disappointment and discomfort and loss of amenities	Rs.30,000/-
TOTAL	Rs.6,17,926/-

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Claimant is entitled to total compensation of

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Rs.6,17,926/- as against Rs.5,37,926/- awarded by the

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HC-KAR

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NC: 2026:KHC:37906 MFA No. 5429 of 2023 C/W MFA No. 6230 of 2023

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CNR: KAHC010402652023

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Tribunal with interest at the rate of 6% p.a. from date of petition till the date of realization. Consequently, the claimant is entitled enhanced compensation of Rs.80,000/with interest at the rate of 6% p.a. from date of petition till the date of realization. Accordingly, point No. (b) is answered.

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In view of the above, the following;

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O R D E R

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a) Appeal filed by the Insurer in MFA No. 6230/2023 is dismissed.

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b) Appeal filed by the claimant in MFA No. 5429/2023 is allowed in part.

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c) Claimant is entitled to enhanced compensation of Rs.80,000/- with interest at the rate of 6% p.a. from date of petition till the date of realization.

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