Vijay J Parwatikar Vs Babu Zavier

RELIANCE GENERAL INSURANCE COMPANY LTD., HAVING OFFICE AT SHUBHASRI MAHENDRA TOWERS, 2^ND FLOOR 11^TH MAIN, III BLOCK, JAYANAGARA BENGALURU - 560 011.

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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HC-KAR

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CNR: KAHC010083532024

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REPRESENTED BY ITS MANAGER POLICY No. 140521723340005131.

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…RESPONDENTS

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(BY SRI H S LINGARAJU, ADVOCATE FOR R2 V/I DTD, 14.02.2024, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.11.2023 PASSED IN MVC No.517/2021 ON THE FILE OF THE VIII ADDITIONAL SMALL CUASES JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH-5), 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 MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the claimant seeking enhancement of the compensation awarded in the judgment and award dated 20.11.2023 passed in MVC No. 517/2021 by the VIII Additional Small Causes Judge and

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Member, MACT, Bengaluru (SCCH-5).

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Even though the matter is listed for `Admission' today, it is taken up for hearing with the consent of the learned counsel appearing for appellant and learned counsel appearing for respondent No. 2 - Insurer.

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HC-KAR

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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CNR: KAHC010083532024

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Appellant – claimant made a claim petition before the Tribunal praying to award compensation for the injuries sustained by him in a road traffic accident that occurred on 18.02.2018 contending that the accident occurred due to the negligence on the part of the driver of Milk Canter bearing registration No.KA-01-AD-03 which was parked on the right side of the road without any signal, endangering to human life and without taking any precaution to avoid the accident. The Tribunal after recording evidence, appreciating the evidence on record, assessed the compensation and awarded compensation under different heads as under:

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1.	Pain and suffering	Rs.20,000.00
2.	Conveyance, nourishment and attendant charges	Rs.20,000.00
3.	Medical expenses	Rs.33,023.00
4.	Loss of amenities in life	Rs.15,000.00
5.	Loss of income during laid up period	Rs.16,167.00
	TOTAL	Rs.1,04,190.00

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HC-KAR

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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CNR: KAHC010083532024

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The Tribunal held that claimant has contributed

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to the extent of 50% to the accident and has deducted 50% of total compensation and awarded Rs.52,095/- with interest at the rate of 6% p.a. from date of petition till the date of realization. The Tribunal has directed respondent No. 2 – Insurer to pay the said award amount with interest. Challenging the said contributory negligence and seeking enhancement of the compensation awarded, claimant has filed the present appeal.

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Heard learned counsel for appellant - claimant and learned counsel for respondent No.2 – Insurer.

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Learned counsel for appellant would contend that Milk Canter was parked on the right side of the road without any signal, as a result of which the accident occurred and whole negligence is on the part of the driver of said Milk Canter. He further submits that the extent of contributory negligenc,e on the part of the claimant, as held by the Tribunal at 50% is on higher side. He further submits that claimant has sustained grade-IV splenic

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HC-KAR

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CNR: KAHC010083532024

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injury, grade-I liver injury, lung contusions, aortic pseudoaneurysm with moderate hempoeritoneum with 3^rd and 4^th rib fracture. Considering the said injuries, compensation awarded by the Tribunal under the head pain and suffering’ is on lower side. Spleen of the claimant has been removed and therefore, he has to suffer for life time and considering the same, compensation awarded by the Tribunal towards loss of amenities’ requires to be enhanced. Claimant was admitted in the hospital for 10 days and the Doctor had advised rest for 3 months and therefore, he is entitled to compensation under the head `loss of income during laid up period’ for 3 months. Medical bill of the claimant – Ex.P.14 indicate that claimant had paid Rs.2,57,415.00 after discount of Rs.41,160.00 from total bill amount of Rs.2,98,575.00. The Tribunal has rightly awarded medical expenses of Rs.33,023.00 based on the bills – Ex.P.8 to Ex.P.13. The Tribunal has erred in not awarding said medical bill as per Ex.P.14 only on the ground that the said bill has been

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HC-KAR

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CNR: KAHC010083532024

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sponsored by Biocon. Claimant, as per evidence of the Doctor – P.W.2, has to take vaccination once in every 5 years and cost of the said vaccination is Rs.2,500/- and therefore, he is entitled to compensation under the head `future medical expenses’. With this he prayed to allow the appeal and enhance the compensation awarded by the Tribunal.

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Learned counsel for respondent No. 2 – Insurer would contend that charge sheet has been filed against the driver of the Milk Canter and also claimant who was the rider of the motorcycle and considering the same, the Tribunal has rightly held that claimant has contributed to the extent of 50% of negligence. Compensation awarded under other heads is just and proper and there are no grounds for enhancement.

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Having heard learned counsel for the parties,

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this Court has perused the judgment, award and trial Court records.

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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HC-KAR

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CNR: KAHC010083532024

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Claimant was working in a private company and the Tribunal has taken his monthly income at Rs.16,167.00. As per wound certificate - Ex.P.3 claimant has sustained the following injuries:

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a. There was distension of abdomen with guarding and tenderness. CT abdomen showed splenic laceration and liver laceration. Renal parenchymn laceration with haemoperitoneum.

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b. There was tenderness on right side of chest. CT thorax shows fracture of 3^rd and 4^th Ribs.

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Considering the said injuries, compensation

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awarded by the Tribunal under the head `pain and suffering’ in a sum of Rs.20,000.00 requires to be enhanced to Rs.1,00,000/-.

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There is removal of spleen of the claimant due to the accident and it has affected his immunity and he is prone to infections. Considering the same, compensation awarded by the Tribunal under the head `loss of amenities

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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HC-KAR

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CNR: KAHC010083532024

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in life’ in a sum of Rs.15,000.00 requires to be enhanced to Rs.2,00,000.00.

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The Tribunal has rightly awarded medical expenses in a sum of Rs.33,023.00 based on Ex.P.8 to Ex.P.13. Ex.P.14 is the bill of medical treatment issued by Mazumdar Shaw Medical Center’. Total amount of the said bill is Rs.2,98,575.50 and after discount of Rs.41,160.00 the patient payable amount is Rs.2,57,414.96 and amount paid is Rs.2,57,415.00. The Tribunal, considering the mode of payment mentioned in Ex.P.14 as IP Cash, Biocon Cash Paying Plan, Biocon Limited – Cash’ has considered that it is paid by Biocon and it is sponsored by Biocon and not awarded the said medical expenses of Rs.2,57,415.00. Brother of the claimant was working in Biocon and he has paid the said amount through his bank account using `IP cash – Biocon Cash Paying Plan’ and there is no sponsor by Biocon and it is only a mode of payment of the bill. Therefore, claimant

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HC-KAR

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CNR: KAHC010083532024

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is entitled to medical expenses of Rs.2,57,415.00 as per Ex.P.14.

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The Tribunal has awarded compensation under the head loss of income during laid up period’ for one month. Considering the injuries sustained, claimant being admitted in the hospital for 10 days and evidence of the Doctor that claimant has to take rest for three months, loss of income during laid up period’ is to be awarded for three months in a sum of Rs.48501.00 (16167 X 3).

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The Tribunal considering that the claimant was admitted in the hospital for 10 days has rightly awarded `conveyance and attendant charges’ in a sum of Rs.20,000.00. P.W.2 – Doctor has stated that due the claimant undergoing splenectomy there is increased risk of certain kinds of bacterial infections due to which he has to take compulsory vaccinations once in every five years and approximate cost of the same would be Rs.2,500.00 each time. Claimant was aged 28 years at the time of accident and during his life time he has to take vaccination at-least

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HC-KAR

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CNR: KAHC010083532024

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for 8 times. Therefore, he is entitled to a sum of Rs.20,000.00 (2500 X 8) towards `future medical expenses’.

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In view of the above, total compensation

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payable to the claimant is calculated as under:

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1.	Pain and suffering	Rs.1,00,000.00
2.	Conveyance and attendant	Rs.20,000.00
	charges
3.	Medical expenses	Rs.2,57,415.00
4.	Loss of amenities in life	Rs.2,00,000.00
5.	Loss of income during laid up period	Rs.48,501.00
6.	Future medical expenses	Rs.20,000.00
7.	Medical expenses awarded by the Tribunal	Rs.33,023.00
	TOTAL	Rs.6,78,939.00

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The Tribunal, considering that charge sheet is filed both against the claimant and the driver of Milk Canter held that there is contributory negligence on the part of the claimant to the extent of 50%. Ex.P.4 is the

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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HC-KAR

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CNR: KAHC010083532024

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mahazar of the spot of accident and Ex.P.5 is the sketch of scene of offence. Ex.P.6 is copy of charge sheet and charge sheet is filed against both the claimant and driver of the Milk Canter which was parked on the right side of the road as it had broken down. There was no signal or indicating mark to indicate that the Milk Tanker had broken down. Claimant who was overtaking a bus dashed to the parked Milk Canter. If there was any indicating mark to indicate that the Milk Canter was parked as it had broken down, claimant could have avoided the accident.

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Procedure to be followed in cases where there is any brake down of any vehicle and it is to be parked on the road, is prescribed in Regulation No. 28 of the Motor Vehicles (Driving) Regulations, 2017 and it reads as under:

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“ Vehicle breakdown. In case a vehicle

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with more than two wheels has broken down at a place where it can be recognized in time as a stationary obstacle,-

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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HC-KAR

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CNR: KAHC010083532024

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(i) the hazard warning lights of the vehicle shall be switched on immediately;

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(ii) on highways and major roads with fast speed, reflective traffic warning triangles shall be placed at a distance of fifty meters behind the broken-down vehicle; and

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(iii) if there is a bend on the road where the vehicle is parked, reflective traffic warning triangles shall be placed before the bend.

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As per the said Regulations, reflective triangles should be placed at a distance of 50 meters behind the broken down vehicle and hazard warning lights of the vehicle should be switched on. Charge sheet does not indicate any such precautions being taken by the driver of the Milk Canter. Considering the said aspect, contributory negligence on the part of the claimant as held by the Tribunal at 50% is on higher side. Therefore, contributory

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HC-KAR

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CNR: KAHC010083532024

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negligence on the part of claimant is held at 25% and negligence on the part of driver of Milk Canter is held at 75%.

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In view of the above, claimant is entitled to 75% of the total compensation assessed of Rs.6,78,939.00 which comes to Rs.5,09,204.00. Therefore, claimant is entitled to total compensation of Rs.5,09,204.00 with interest at the rate of 6% p.a. from date of petition till the date of realization as against Rs.52,095.00 awarded by the Tribunal. Consequently, claimant is entitled to enhanced compensation of Rs.4,57,109.00 with interest at the rate of 6% p.a. from date of petition till the date of realization. Respondent No. 2 – Insurer is liable to pay the enhanced compensation with interest.

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In the result, the following;

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O R D E R

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i) Appeal is allowed in part.

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ii) Appellant – claimant is entitled to enhanced

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compensation of Rs.4,57,109.00 with interest at

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HC-KAR

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NC: 2026:KHC:36809 MFA No. 845 of 2024

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CNR: KAHC010083532024

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the rate of 6% p.a. from date of petition till the

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date of realization.

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iii) Respondent No. 2 – Insurer is directed to deposit the enhanced compensation with interest within a period of six weeks from this day failing which it is liable to pay interest at the rate of 9% p.a. from this day till the date of payment.

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iv) Claimant is entitled to release of entire enhanced compensation.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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LRS List No.: 1 Sl No.: 44 Ct.sm

Vijay J Parwatikar v. Babu Zavier

Case brief

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Vijay J Parwatikar v. Babu Zavier

Case brief

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