SINCHANA v. SHREYASH P.P

It is contended that the said accident has taken place due to the sole negligence on the part of the petitioner/appellant. It is further contended that even the driver of the Maruthi Wagon-R Car has also not produced his driving license. Therefore, respondent No.3-Insurance Company is not liable to pay the compensation. - 6 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR

8. Based upon the rival pleadings, the learned Tribunal framed six issues.

9. Before the Tribunal, to substantiate and prove case of the petitioner/appellant, petitioner/appellant was minor at the time of the accident and she got examined her mother-Smt.K.V.Latha as PW1 further got examined two witnesses, namely, Dr.Mohan K as PW.2 and Sri.N.Tyagaraju as PW.3 and got marked 18 documents as per Ex.P1 to Ex.P18 and closed the petitioner's/appellant's evidence. To evidence of the petitioner/appellant, one of the official of respondent No.3 by name K.C.Shalini entered the witness box as RW.1 and got marked two documents as per Ex.R1 and Ex.R2 and closed its side evidence.

10. The learned Tribunal on hearing the arguments and on evaluation of the evidence placed on record by the petitioner/appellant, awarded a total compensation of Rs.3,37,175.25 under the different components as under: - 7 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR Heads Amount Sl. No. 1. 2. 3.

4. 5.

6. Pain and Sufferings Medical Expenses Food and Nourishment Transportation Charges Loss of Amenities in life Future loss of income

7. Attendant Charges Rs.50,000/- Rs.2,77,187/- Rs.15,000/- Rs.15,000/- Rs.25,000/- Rs.38,880/- Rs.5,000/-

8. Future Medical Expenses Rs.10,000/-

9. Loss of income during laid up period Rs.13,500/- Total Rs.4,49,567/- LESS 25% of liability fixed on the petitioner Total compensation payable by the 3rd respondent Rs.1,12,391.75 Rs.3,37,175.25

11. Being aggrieved and dissatisfied by the said award and also fastening the contributory negligence to the extent of 25% on the part of petitioner/appellant and questioning the same, this appeal filed by the petitioner/appellant.

12. Along with appeal memo, petitioner/appellant has also filed interim application under - 8 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR Order XLI Rule 27 of the Code of Civil Procedure (for short 'CPC') to receive the additional documents towards medical bills to show the medical expenses alleged to have been spent by the petitioner/appellant after the judgment and award passed by the Tribunal. As per this application, in all Rs.90,500/- is spent by the petitioner/appellant towards further medical expenses after the judgment and award passed by the Tribunal. To this interim application, no objections were filed by any of the respondents.

13. Heard the arguments of learned counsel for the petitioner/appellant Sri. Srinivas V., and learned counsel appearing respondent No.3-Insurance Company Smt. Kushi for Sri. Ravish Benni and perused the records.

14. Learned counsel for the petitioner/ appellant with all vehemence submits that, the said accident has taken place due to rash and negligent driving of the Maruthi Wagon-R Car bearing Reg.No.KA-12-N-4435 by its driver i.e., respondent No.1. Respondent No.2 insured his - 9 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR vehicle with respondent No.3. He submits that, merely because the petitioner/appellant was not possessing the valid driving license, the Tribunal has wrongly fastened the contributory negligence to the extent of 25% and deducted the compensation to that effect. He further submits that, the petitioner/appellant was a girl aged 17 years at the time of accident. She has suffered substantial injuries in the said accident. Even the award of compensation on other components so stated in the body of the judgment is meager one. He further submits that, the Tribunal has not properly considered the income of the petitioner/ appellant. When the said accident has taken place, at least the Tribunal ought to have taken the notional income of the petitioner/appellant for calculating income. He further submits though petitioner/appellant has spent substantial money towards the medical expenses not only during the treatment period even after passing the judgment, but the Tribunal has awarded Rs.10,000/- towards future medical - 10 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR expenses, which is incorrect and very much meager. He would further submit that, she is a girl, because of these injuries, frequently she is suffering from headache and she cannot enjoy the life as she was enjoying prior to the accident and because of this accidental injuries, she has stopped her education. Thus, he submits that, whatever the compensation claimed by the petitioner/appellant be awarded. It is further submitted that, towards marriage prospects also there is no award passed by the Tribunal. Hence, he prays to enhance the compensation.

15. Per contra, learned counsel for respondent No.3-Insurance Company submits that, petitioner/appellant was not holding driving license, at least 50% contributory negligence have to be fastened on the petitioner/appellant. However, the Tribunal has taken her negligence to the extent of 25%, which is just and proper. He would further submits that whatever the compensation awarded by the Tribunal is just and proper and he prays to dismiss the appeal. - 11 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR

16. I have given my anxious consideration to the arguments of both the side. On meticulous reading of the materials placed on record including the Trial Court records, so far as occurrence of the accident on the said date is not in dispute. It is the specific assertion of the petitioner/appellant in the petition that, on the date of accident, when she was moving on her two wheeler at

3.50 p.m. on 04.05.2018 on Mysore to Hunsur Road, near Aishwarya Petrol Bunk junction, Mysuru City in the limits of V.V.Puram Traffic Police Station, on account of the rash and negligent driving of the driver of car bearing Reg.No.KA-12-N-4435 i.e., respondent No.1 the said accident has taken place.

17. To prove the said factum of the accident, the petitioner/appellant much relies upon contents of Ex.P4. This Ex.P4 a sketch produced by the petitioner/appellant was prepared by the police at the time of conducting the spot Panchanama. Evidently, this accident has taken place in a junction area and when the petitioner/appellant was - 12 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR moving on Mysuru-Hunsur Road towards Bogadi, driver of the wagon-R car coming from the opposite direction dashed two wheeler being driven by petitioner/appellant. At the said place, the road is having sufficient width. It shows that, because of the rash and negligent driving of the Maruthi Wagon R Car, the said accident has taken place. However, the Tribunal has considered the negligence on the part of the petitioner/ appellant also to the extent of 25% as she was a minor and not possessing the effective driving license. Accident is admitted. It is not the case of the petitioner/appellant that, registered against petitioner/appellant for violating the provisions of the Motor Vehicle Act, 1988 for not possessing driving license. As rightly observed by the Tribunal that, it is the duty of the rider or driver of the vehicle to drive the vehicle with effective driving license only on a public road. If not, it violates Section 3 of the Motor Vehicles Act, 1988. But in case, no registered against - 13 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR petitioner/appellant for the offence of not possessing the driving license. A question arose before the Co-ordinate Bench of this Court as to whether any contributory negligence can be attributed to the victim who was not holding effective driving licence, in MFA No.617/2021 in the case of Shivegowda vs. Nanjegowda. The Co- ordinate Bench of this Court, relying upon earlier judgments this Court held that 'if victim was not possessing driving licence, no contributory negligence can be attributed to him/them.' Thus, by applying the same ratio it is held that, the Tribunal is not right in fastening contributory negligence on the victim. Thus, the whole negligence in causing the accident is fastened on the driver of the offending vehicle. Thus, the submission of Counsel for respondent No.3 that, there is contributory negligence on the part of this victim cannot be accepted.

18. So far as, injuries that have been sustained by the petitioner/appellant in the said accident is concerned, as per the medical records produced at Ex.P5 by the - 14 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR petitioner/appellant having considered by the Tribunal, the petitioner/ appellant has sustained in all three injuries as under: "1. Abrasion over right wrist.

2. Swelling on both side forehead, CT Scan shows EDH left Temporal region.

3. Fracture of left clavicle."

19. As per the opinion of the doctor, injury Nos.1 and 2 are grievous in nature. According petitioner/appellant, she has suffered a lot because of these injuries and even she has undergone the treatment both as inpatient and outpatient and has spent substantial money towards medical expenses.

20. Considering all these aspects, the learned Tribunal has awarded compensation of Rs.50,000/- towards pain and suffering. In my opinion, it requires no interference as rightly the Tribunal has awarded the compensation towards pain and suffering. - 15 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR

21. The learned Tribunal considered the medical receipts to the extent of Rs.2,77,187/-, which shows that the petitioner/appellant has incurred the medical expenses towards the treatment period. To that effect, Ex.P9- Medical bills were produced before the Tribunal. In addition to the same, as per the documents produced by the petitioner/appellant, the petitioner/appellant also had spent Rs.90,500/- towards further medical expenses after passing the judgment and award. The petitioner/appellant has filed the interim application under Order XLI Rule 27 of CPC to receive the additional documents. To the said application, none of the respondents have filed objections. Even the contents of these documents have not been denied by any of respondents. Therefore, they show that, in addition to Rs.2,77,187/- after judgment and award, the petitioner/appellant has spent Rs.90,500/-. Therefore, the petitioner/ appellant is held entitled for compensation of Rs.2,77,187/- + Rs.90,500 = Rs.3,67,687/- towards medical expenses. - 16 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR

22. As the petitioner/appellant has suffered multiple fractures, though the Tribunal has awarded Rs.15,000/- towards food and nourishment, it shall have to be enhanced to Rs.25,000/- in view of she taking treatment both as in-patient and out patient, that it would meet the ends of justice.

23. The Tribunal has awarded Rs.15,000/- towards transportation charges for taking treatment in the hospital. In my opinion, the said award so made is just and proper and requires no interference.

24. The Tribunal has awarded Rs.25,000/- towards loss of amenities in life. It is submitted by learned counsel for the petitioner/appellant that, now frequently because of the fracture being sustained by the petitioner/appellant, she is suffering from headache everyday and even she has stopped her education in the middle. She cannot enjoy her life as she enjoyed prior to the accident. Therefore, - 17 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR under this head it requires enhancement. Accordingly, it is enhanced to Rs.30,000/-.

25. So far as disability is concerned, the doctor has assessed the disability to the extent of 12% and also has stated that, petitioner has to undergo surgery for removal of the implant which may cost around Rs.30,000/-. To that effect, before the Tribunal PW.2-Dr.Kumar has given evidence. He has assessed the disability to the extent of 12% to the particular limb and the disability of 4% to whole body. Considering the said aspect, the Tribunal has awarded Rs.38,880/- towards future loss of income holding her notional income at Rs.4,500/- per month. There regarding income petitioner/appellant at the time of accident. As there is no proof regarding income, it is just and proper to rely upon the guidelines issued by the Karnataka State Legal Services Authority with regard to the income of the petitioner/ appellant. As the accident had taken place in the year 2018, the proper notional income that has to be - 18 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR assessed Rs.12,500/- per month. The petitioner/appellant was aged about 17 years at the time of filing the petition and at the time of filing the appeal she was aged 19 years i.e., she has become major. The proper multiplier that is to be applied is 18. Rs.12,500/- is to be multiplied with 12 and proper multiplier is '18' and as the Tribunal has rightly considered the disability to the extent of 4% to the whole body, the loss of income to be calculated as Rs.12,500 X 12 X 18 X 4/100 = 1,08,000/-.

26. The Tribunal has awarded Rs.5,000/- towards attendant charges. In my opinion, the same is just and proper and requires no interference.

27. The Tribunal has awarded Rs.10,000/- towards future medical expenses and no appeal has preferred by respondents, it remains as is and without any interference.

28. The Tribunal has awarded Rs.13,500/- towards loss of income during laid-up period by holding her income - 19 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR at Rs.4,500/- per month for a period of 3 months. But now, this court assessed her income at Rs.12,500/- per month. Therefore, the petitioner/appellant is held entitled to Rs.37,500/- (Rs.12,500/- X 3 = Rs.37,500/-) towards loss of income during laid up period.

29. The petitioner/appellant is unmarried girl. It is submitted that, because of the said accidental injuries, she suffered lot and still suffering from headache everyday. There is no evidence to accept the same. However, as she is an unmarried girl, these injuries may come in the way of her marriage prospects also. Hence, towards loss of marriage prospects certain amount is to be awarded. Therefore the petitioner/appellant is held entitled to Rs.25,000/- towards loss of marriage prospects.

30. Thus, the petitioner/appellant is held entitled for a total enhanced compensation as under: Sl.N o. 1. 2. Heads Amount in Rs. Pain and Sufferings Medical Expenses 50,000/- 3,67,687/- - 20 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 25,000/- 15,000/- 30,000/- HC-KAR

3. Food and Nourishment Transportation Charges Loss of Amenities in life

4. 5.

6. Future loss of income 1,08,000/-

7. Attendant Charges

8. Future Medical Expenses

9. Loss of income during laid up period

10. Towards marriage prospects 5,000/- 10,000/- 37,500/- 25,000/- Total 6,73,187/-

31. The petitioner/appellant is entitled for a total enhanced compensation of Rs.6,73,187/- as against Rs.3,37,175/-, which is awarded by the Tribunal.

32. It is held that the said accident has taken place because of the actionable negligence of the driver of the offending Wagon-R car to the extent exclusively and there is no contributory negligence on the part of the petitioner/appellant as contended by the respondent No.3 Therefore, respondents together jointly and severally are held liable to pay the compensation. But, under law of - 21 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR indemnity, respondent No.3 to deposit compensation. Thus, the petitioner/appellant is entitled for a compensation of Rs.6,73,187, rounded off to Rs.6,73,000/- together with interest at the rate of 6% per annum from the date of filing the petition till realization.

33. Accordingly, I pass the following: ORDER i) ii) The appeal is allowed-in-part. The appellant/petitioner is held entitled for total compensation of Rs.6,73,000/- as against Rs.3,37,175/- awarded by the learned Tribunal, thereby there would be enhancement compensation *Rs.3,35,825/- together with interest at 6% per annum from the date of filing of petition till realization on the enhanced compensation. iii) The impugned judgment and award passed in MVC No.1246/2018 dated 27.09.2019 passed by the learned III Additional District *Corrected vide chambers order dated 10.09.2025. - 22 - NC: 2025:KHC:30034 MFA No. 1907 of 2020 HC-KAR Judge and MACT, Mysuru, is hereby modified to the above extent. iv) Respondent Nos.2 and 3 are jointly and severally held liable to the compensation. However, respondent No.3 to deposit the same within a period of 6 weeks from the date of receipt of a copy of this judgment together with accrued interest. v) So far as the order so passed in respect of deposit and release passed by the Tribunal is concern, it remains unaltered. vi) There shall be modified award accordingly. vii) Registry is directed to send back the Trial Court records along with a copy of this judgment forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SMJ,PHM List No.: 1 Sl No.: 17