The High Court
Case Details
- 1 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 2579 OF 2015 (MV-I) BETWEEN: MR. ABHILASH, S/O K.A. GEORGE, AGED ABOUT 27 YEARS, R/AT KALYOTTU HOUSE, NEAR CHANDAMUNDESHWARI TEMPLE, NELYADI POST, PUTTUR TALUK, PRESENTLY RESIDING AT HAPPY HOME, JEPPU BAPPAL, MORGANS GATE MANGALORE TALUK. (BY SRI. GURUPRASAD B.R, ADVOCATE AND: 1. SHRI RAM INSURANCE CO. LTD., 1003-E8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN - 302 022, REPRESENTED BY ITS MANAGER. 2. MR. N. ABOOBAKKER , S/O N. ISUBU, AGED ABOUT 52 YEARS, R/O HIDAYAT NAGAR, SHANTIBETTU, NELYADI GRAMA, PUTTUR TALUK - 574 201. …APPELLANT (BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R1; VIDE ORDER DATED 15.07.2016, NOTICE TO R2 IS DISPENSED WITH) …RESPONDENTS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.08.2014 PASSED IN MVC NO.113/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the claimant challenging the judgment and award dated 21.08.2014, passed by the II Additional Senior Civil Judge, Mangalore, Dakshina Kannada (for short “the Tribunal”), in MVC No.113/2012, seeking enhancement of compensation. 2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 3.
Legal Reasoning
Brief facts of the case are that, on 09.11.2011, the claimant along with two others traveling on motor - 3 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR cycle bearing registration No.KA-19/R-5637, on NH 75. At Golithottu Village of Puttur Taluk they met with accident due to the rash and negligent driving of the Eicher lorry bearing registration No.KA-21-7069, by its' driver. As a result, the rider and pillion riders of the motor cycle were thrown on road and sustained grievous injuries. They were shifted to Pragathi Specialty Hospital, Puttur, and admitted as inpatients. As per the advice of the doctor, the petitioner was shifted to A.J. Hospital and was admitted as inpatient, from 10.11.2011 to 29.11.2011. He underwent surgery. He has spent more than Rs.2 Lakhs towards medical expenses. At the time of accident, he was working as supervisor in Manish Traders at Nelyadi of Puttur Taluk and earning Rs.9,000/- per month. With these reasons he prayed to award compensation. 4. Respondent No.2 is the owner and respondent No.1 is the Insurer of the offending lorry. Respondent No.2 did not appear before the Tribunal. Respondent No.1 - 4 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR contended that it is not liable to pay compensation, it denied the contents of the claim petition. It has also contended that the accident was caused due to negligence of the rider of the motor cycle. With these reasons, prayed to dismiss the claim petition. 5. From the rival contentions of the parties, the Tribunal has framed following issues: " Whether the petitioner proves that the accident that occurred on 9.11.2011 at about 9.00 p.m. near Golithottu school of Golithottu village, Puttur taluk was due to rash and negligent driving of the driver of the Eicher Lorry bearing Registration No.KA-21-7069 and due to which the above petitioner has sustained injuries? 2) Whether the 2nd respondent proves that the alleged accident occurred due to the negligence on the part of the petitioner/rider of the Motor cycle bearing registration No.KA-19-R-5637? 3) Whether the 2nd respondent further proves that the petition is bad for non joinder of necessary parties, i.e. insured and insurer of the above said motor cycle? - 5 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR 4) Whether the petitioner proves that he is entitle for any compensation? If so, to what amount and from whom? 5) What Award or Order? 6. All the three riders of the motor cycle have filed the claim petitions in MVC Nos.113/2012, 471/2012 and 472/2012. The petitioner examined two witnesses as PWs.1 and 2 and marked 12 documents at Exs.P1 to P12. Respondent has not examined any witnesses, but marked one document as Ex.R1. 7. Tribunal after hearing the parties and appreciating materials available on record held that the accident occurred due to contributory negligence of the petitioner as well as the driver of the offending lorry and apportioned contributory negligence in the ratio of 60:40 (negligence of the rider of the motor cycle is fixed at 40%). - 6 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR 8. Tribunal assessed the age of the claimant/petitioner as 24 years, income of the claimant as Rs.4,500/- per month, applied multiplier as 17, and assessed the disability as 8% to the whole body, awarded the following amount of compensation: SL.NO. PARTICULARS 01 02 03 04 05 Pain and sufferings Attendant charges, food and extra and nourishing conveyance etc., Medical Expenses Loss of future prospectus due to disability Future Medical Expenses TOTAL AMOUNT IN RS. 29,000-00 19,000-00 1,26,847-00 73,440-00 10,000-00 Rs.2,58,287-00 9. Being dissatisfied with the award of compensation as well as with holding that accident occurred due to contributory negligence on the part of the rider of the motor cycle, the petitioner/claimant has preferred this appeal. - 7 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR 10. Heard the arguments of the learned counsels for claimant and Insurer . 11. The claimant contended that the Tribunal has assessed the income of the claimant on lower side and the amounts of compensation awarded on all the heads are inadequate. Hence, prayed to enhance the same. Further submits that there were no evidence to hold that rider/petitioner was negligent in driving his vehicle. Hence prays to set aside said findings. 12. The insurer supported the impugned judgment and award and submits that there are no reasons to interfere with the findings of the Tribunal. 13. From rival contentions of the parties, following questions arises for determination: (i) Whether the Tribunal is justified in holding that accident has taken place due to contributory - 8 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR negligence of the rider of the motor cycle to an extent of 40% is proper? (ii) Whether the claimant/petitioner is entitled to enhancement of compensation? POINT NO.1 14. Learned counsel for the appellant submits that the Tribunal had determined the contributory negligence of rider of the motor cycle on the ground that there was two pillion riders along with rider of the motor cycle, thereby violated the traffic rules. He further contended that as per the Spot Map (Ex.P5), the lorry went to wrong side of the road and hit the motor cycle. The width of the road at the spot of accident was 22 feet. It clearly indicates that the entire negligence for occurrence of the accident was on the part of lorry driver. This fact was not considered by the Tribunal. Tribunal found fault with riders of the motor cycle only on the ground that there were three riders on the motor cycle, even such case was not made by the police. Going three persons on a motor cycle is an offence - 9 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR under Motor Vehicles' Act but that itself cannot be ground to infer that rider of motor cycle was negligent. On this
Legal Reasoning
point, the counsel for the appellant relied on the judgment of the Hon'ble Apex Court in the case of Mohammed Siddique and another Vs. National Insurance Company Limited (Civil Appeal No.79/2020) decided on 08.01.2020 and further submits that in view of the law laid down in the aforesaid judgment the findings of the Tribunal that the rider of the motor cycle contributed to an extent of 40% in occurrence of the accident is incorrect and improper. 15. He further contends that the claimant has suffered several injuries, out of them, one injury is grievous injury i.e., fracture of right femur for which he underwent surgery, he was admitted as an inpatient in the hospital for 20 days. He has produced the medical bill, totally amounting to Rs.1,65,000/- and odd. The Tribunal without any reasons awarded Rs.1,26,847/- towards - 10 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR medical expenses. The tribunal has also not awarded a just and reasonable amount of compensation under other heads. He further contends that the Tribunal has assessed the age of the claimant as 24 years, but applied the multiplier as 17 instead of 18. The income assessed by the tribunal is also on the lower side. As per evidence of PW.2, the claimant has been suffering from permanent disability of 15%, but the Tribunal has taken only 8%. In view of these reasons, the amount of compensation awarded by the Tribunal is not just and reasonable and hence, prays for enhancement of the compensation. 16. Learned counsel for the Insurer vehemently contends that the Tribunal in the impugned judgment, discussed in detail about the negligence of the rider of the motorcycle in para No.17. The accident had taken place due to the contributory negligence of the rider of the motor cycle. He could have avoided the accident had he possessed the knowledge of driving. Since there were two - 11 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR pillion riders, rider of the motor cycle could not avoid the accident. Facts and circumstance of the case reveal that accident was caused due to contributory negligence. In view of the said reasons, the law laid down in the case of Mohammed Siddique and another vs. National Insurance Company Limited and others, relied by the counsel for the appellant is not applicable to the facts of the present case. 17. The learned counsel for the insurer fairly submitted that the Tribunal has committed an error in reducing the amount of medical expenses. The Tribunal has also not taken suitable multiplier, though it has determined the age of the claimant as 24 years. Tribunal awarded reasonable compensation on other heads are proper and the same does not call for any interference by this Court. - 12 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR 18. The fact of accident and injury sustained by the claimant are not in dispute. Claimant in this case was the rider of the motor cycle. It is pertinent to note that he has no license to ride the motor cycle. There were three riders on the motor cycle and none of them were wearing helmets. It is true that mere violation of the traffic rules in all the cases does not amount to negligence as held in the case of Mohammed Siddique and another vs. National Insurance Company Limited and others, relied by the learned counsel for the appellant, but considering the facts in the present case, acts of claimant indicate he has contributed for the accident in question. In Ex.P5, which is relied by the learned counsel for the appellant, the accident had taken place on the left side of the road to the motor cycle rider. The said road was situated from East to West. The rider was riding the motor cycle from East to West. The spot of the accident shown in Ex.P5 is about 5 feet away from Southern end of the Tar Road. There was 5 feet mud road towards the Southern side of the said tar - 13 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR road. If the rider of the motor cycle had control over the vehicle, he could have apprehended the danger of the accident and could have tried to avoid the said accident by taking the vehicle to the Southern side of the road. Looking to all these facts and circumstances, it can be stated he had contributed for the accident in question. 19. The findings of the Tribunal holding that the rider contributed 40% towards the accident is not proper. It is also pertinent to note that the respondent has not examined either driver of the lorry or any other witnesses to establish that he was forced to go to wrong side of the road at the time of accident; It is also not a case of the respondent that in the cross examination of PW1 that all of a sudden while overtaking by the lorry, the offending motor cycle came from the opposite side. There were no justifiable reasons to the driver of the lorry to go to wrong side of road. Under these circumstances, the contributory negligence of the rider of the motor cycle for the accident - 14 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR is taken as 10% and 90% of the contributory negligence is of the lorry driver. Accordingly, point No.1 is answered partly in the affirmative. POINT NO.2 20. It is noticed that the claimant has sustained the fracture of right femur and other injuries which are stated in the wound certificate (Ex.P8). Medical records reveal that he was admitted as an inpatient in the hospital from 10.11.2011 to 29.11.2011. Ex.P9 is the discharge summary. Ex.P10 shows that he underwent surgery and has suffered the permanent disability to an extent of 15% to the right lower limb. He had taken follow up treatment for a period of 1 1/2 months to 3 months. In Ex.P9 as well as in Ex.P10, it is mentioned that he had also sustained fracture of right tibia. Claimant has produced hospital and medical bills as per Ex.P12. According to calculation, the total amount is Rs.1,65,246.89. The same is not seriously disputed by the Insurer. - 15 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR 21. The Tribunal has assessed the income of the claimant as Rs.4,500/- per month though the claimant contended that he was earning Rs.9,000/- per month. The income assessed by the Tribunal appears to be on the lower side. The claimant has not produced acceptable evidence to prove his income. Therefore following the chart prepared by KSLSA, the notional income of the claimant is taken as Rs.6,500/- per month. The multiplier applicable between the age group of 18 to 25 years is 18, as per the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in 2009 ACJ 1298. The Tribunal has assessed the age of the claimant as 24 years, but taken the multiplier as 17 which is incorrect. The Tribunal has taken the permanent disability at 8% to the whole body in view of Ex.P10 and the evidence of PW2, the claimant has been suffering from permanent disability to an extent of 15% to right lower limb. Hence, assessment - 16 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR of the Tribunal on permanent disability is correct and does not call for interference. 22. On appreciation of materials available on record, the amount of compensation awarded by the Tribunal is on the lower side, which requires enhancement. Accordingly, the following amounts of compensation are awarded : SL NO. PARTICULARS AMOUNT (IN RS.) 01 Pain and suffering 02 Medical Expenses 03 Attendant charges, conveyance 60,000-00 1,65,246-00 50,000-00 charges 04 Loss of income during laid up 19,500-00 period 05 Loss of future income due to 1,12,320-00 permanent disability (6,500x12x18x8%) 06 Future Medical Expenses 07 Loss of Amenities TOTAL 25,000-00 40,000-00 4,72,066-00 - 17 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR Total compensation awarded by the Tribunal - Rs.4,72,066-00 - Less 10% contributory negligence attributed by the rider of the motor cycle Rs.47,206-00 ____________ Rs.4,24,860-00 60% of the awarded amount (Rs.2,58,287x60%) Amount of enhancement Rs.1,54,972-00 ____________ Rs.2,69,888-00 ____________ 23. It is not in dispute that respondent No.1 is the owner and respondent No.2 is the Insurer of the offending vehicle. Therefore, both are jointly and severally liable to pay compensation. 24. The claimant is entitled for interest at the rate of 6% p.a. from the date of filing of the petition till realization. For above reasons, point No.2 is answered 'partly in the affirmative'. - 18 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR
Decision
25. In the result, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and award dated 21.08.2024, passed by the II Additional Senior Civil Judge, Mangalore, Dakshina Kannada stands modified. iii. The claimant is entitled to enhancement of Rs.2,69,888/- along with interest at the rate of 6% p.a. from the date of petition till its realization. iv. The Respondent No.1 shall deposit the said amount within a period of six weeks from the date of award. v. Send back the trial Court records along with a copy of this judgment. vi. Release and deposit of the amount as is as ordered by the Tribunal. - 19 - NC: 2025:KHC:22055 MFA No. 2579 of 2015 HC-KAR vii. No order as to costs. viii. Draw award accordingly. Sd/- (UMESH M ADIGA) JUDGE SNC List No.: 1 Sl No.: 9 CT: BHK