S. KIRAN @ KIRANGOWDA v. DADAPPER

(BY SRI. JANARDHAN REDDY, ADVOCATE FOR R4; SRI. LAKSHMI NARASAPPA, ADVOCATE ALONG WITH SRI. A.M. VENKATESH ADVOCATE FOR R2; R1, R3 ARE SERVED AND UNREPRESENTED.,) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.012.2016 PASSED IN MVC NO.41/2014 ON THE FILE OF THE ADDITIONAL COURT OF SMALL CAUSES, AS A PRESIDING OFFICER, MACT, MYSURU. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC,. IN MFA NO. 3882/2017 BETWEEN: M/S ICICI LOMBARD GENERAL, INSURANCE COMPANY LIMITED, NO.204, 1ST FLOOR, MYTHRI ARCADE, NEW KANTHARAJ URS ROAD, SARASWATHIPURAM, MYSURU. REP BY ITS MANAGER LEGAL. (BY SRI. A.M VENKATESH.,ADVOCATE ALONG WITH SRI. LAXMI NARAYANAYANNA.) ….APPELLANT - 3 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 AND:

S. KIRAN @ KIRANGOWDA, S/O SRI T. SHANKAREGOWDA, AGED ABOUT 25 YEARS, R/AT NO.388, SIDDALINGAPURA, MYSORE TALUK, MYSORE DISTRICT - 575001.

DADAPEER, S/O ALTAF PASHA, R/AT NO.88, MAHADEVAPURA ROAD, GHOUSIA NAGAR, MYSORE - 575001. (OWNER OF AUTORICKSHAW BEARING REG NO.KL-11/D-5015).

DADAPEER, S/O ALTAF PASHA, R/AT NO.88, MAHADEVAPURA ROAD, GHOUSIA NAGAR, MYSORE - 575001. (OWNER OF AUTORICKSHAW BEARING REG NO.KA-55/2082).

TATA AIG GENERAL INSURANCE COMPANY LIMITED, NO.69, 3RD FLOOR, J P & DEVI JAMBUKESHWARI ARCADE, MILLERS ROAD, BENGALURU - 560052. …RESPONDENTS (BY SRI. SANATH KUMARA K M.,ADVOCATE FOR R1; SRI. JANARDHAN REDDY., ADVOCATE FOR R4; V/O DTD 27.02.2024 NOTICE TO R2 AND R3 IS HELD SUFFICIENT) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.012.2016 PASSED IN MVC NO.41/2014 ON THE FILE OF THE ADDITIONAL COURT OF SMALL CAUSES, AS A PRESIDING OFFICER, MACT, MYSURU, AWARDING COMPENSATION OF RS.4,58,000/- WITH INTEREST - 4 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 @ 9% P.A, FROM THE DATE OF PETITION TILL REALIZATION AND ETC,. THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA ORAL JUDGMENT In these appeals, the appellant have challenged the judgment dated 31.12.2016 passed in MVC.No.41/2014 by the Motor Accidents Claims Tribunal, in the Court of the Judge, Additional Small Causes and Senior Civil Judge, Mysuru (in short ‘the Tribunal’).

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

3. Brief facts of the case are, on 31.03.2013 at 3:30 am near K.T. Street on Irwin road junction, Mysuru while the petitioner was riding the motor cycle bearing registration No. KA-55-K-8306 riding by one Keerthi. Autorickshaw bearing registration No. KA-55-2082 came from came from Nehru circle and brushed against the motor cycle. At the same time, - 5 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 another Autorickshaw bearing registration No. KL-11D-5015 came behind this autorickshaw bearing No. KA-55-2082 and hit on its back. Due to which both the autorickshaws have colluded with the motor cycle and the petitioner sustained fracture of right femur. After taking treatment at K.R. Hospital, Mysuru he has approached the Tribunal for grant of compensation of `2,25,000/-. The claim was opposed by the Insurance Companies of both the autorickshaws. The Tribunal after taking the evidence and hearing both the parties has assessed compensation of `4,58,000/- with interest at 9% p.a, and attributed contributory negligence of 25% against the rider of the motor cycle, 25% against the autorickshaw bearing registration KA-55-2082 and 50% contributory negligence against the autorickshaw bearing No. KL-11-D-

5015. Pleading inadequacy, seeking enhancement and questioning attribution of 25% contributory negligence, the petitioner questioning the liability to fastened to the extent of 50%, the Insurance Company of the autorickshaw KA.11-D- 5014 are before this Court. - 6 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017

4. Heard the arguments of Sri. Sanath Kumar. K.M, learned counsel for the petitioner, Sri. Janardhan Reddy, learned counsel Insurance Company of autorickshaw bearing registration No. KA-55-2082 and Sri. A.M. Venkatesh, learned counsel for the Insurance Company of autorickshaw bearing registration No. KL-11-D-5015.

It is contended by the learned counsel for the petitioner that the petitioner was aged 22 years has suffered fracture of right femur, being a driver who was earning more than `15,000/- p.m,. Medical evidence is placed though PW.2 that the petitioner has sustained 50% of the limb disability. The Tribunal has taken the income at `9,000/- p.m, on the lower side, compensation awarded under different heads is lesser and sought for enhancement.

It is the contention of the Sri. Janardhan Reddy, learned counsel that the accident involving the motor cycle and autorickshaw bearing KA-55-2085 having a lesser impact as both the motor cycle, there was no injury caused to the petitioner or damage to vehicles. The autorickshaw bearing - 7 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 KL-11-D-5015 hit from behind and aggravated the accident resulting in fracture of right leg of the petitioner. The Tribunal is erred in attributing the contributory negligence of 25% against autorickshaw KA-55-2085. Since the driver of the autorickshaw was not holding any driving license, the Tribunal has rightly fastened liability against the owner to pay 25% of the compensation.

It is the argument of Sri. A.M. Venkatesh, learned counsel that, before the autorickshaw bearing KL-11-D-5015 hitting against the autorickshaw bearing No. KA-55-2082, there was already an accident. The driver of the autorickshaw KL-11-D-5015 has no role in the alleged of accident, the Tribunal erroneously attributed 50% contributory negligence. Compensation awarded is on the higher side, the petitioner has not produced any proof of income, inspite of it the Tribunal has taken his income at `9,000/- p.m, disability assessed at 17% for the whole body in not proper, interest at 9% award is excess, as no banks will offer such a rate of interest at relevant point time and he sought for modification. - 8 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017

I have given my anxious consideration to the arguments addressed on behalf of the parties and perused the records.

The accident is not in dispute. At the time of accident there were three riders on the motor cycle and the accident took place at 3:30 am on 31.03.2013, it is an earlier hour of the day. The motor cycle was going from South to North, wherein the autorickshaw KA-55-2082 was coming from the East to West. The impact of the accident was not so forceful motor cycle as well as the autorickshaw were standing after brushing each other. The evidence on record did not point out that the autorickshaw or the motor cycle was not damaged nor the riders the motor cycle. The sketch of the spot clearly point out that the motor cycle has almost crossed the junction. Wherein the autorickshaw bearing KA- 55-2082 came and hit on the right side of the motor cycle. The Tribunal has not appreciated the factual matrix of the accident and only on the ground of triple riding and no driving license attributed contributory negligence of 25%. Evidence - 9 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 on record speaks no driving license or the triple riding is not the cause for the accident. Hence, it is not proper to attribute any negligence against the rider of the motor cycle.

Material on record goes to show that when the motor cycle and autorickshaw were already involved in a minor rubbing, autorickshaw bearing No. KL-11-D-5015 came behind and hit against the autorickshaw bearing No. KA-55- 2082 as well as the motor cycle which aggravated the accident. Wherein the petitioner suffered the facture of his right limb. No evidence is placed by examining the rider of the said autorickshaw why he came and dashed on hind portion of another autorickshaw. The absence of any explanation the negligence on the part of the autorickshaw KL-11-D-5015 has to be taken minimum of 70% and that of the autorickshaw KA-55-2082 at 30%. Accordingly, the compensation as to be apportioned.

As regarding quantum of compensation concerned the petitioner was aged 22 years, he has suffered fracture of femur of right bone, he was under hospitalized for - 10 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 27 days, subsequently he was hospitalized for 6 days for removal of implant. PW.2 Dr. Kiran Kalaiah, the orthopedic surgeon who assessed the petitioner for disability and came to conclusion that limb disability of 52%. If the limb disability is taken at 52% the right lower limb constitute 25% whole body disability then 52 X 25% = 13%, wherein the Tribunal taken at 17%. Having regard to the age, avocation and facture of femur it is proper to assess 15% of functional disability on the part of the petitioner.

The petitioner has to be compensated with `30,000/- towards pain and suffering, medical bills of `39,124/-, loss of income during five months laid up at `40,000/-, incidental expenses such as attendance, food and nourishment and conveyance together at `25,000/-, loss of amenities and discomfort at `30,000/-. As regarding further loss of income is concerned in the year 2013 a person with no proof of income will earn not less than `8,000/-, the petitioner though claiming that he is a driver has not placed any evidence to prove his income. Hence, he has to be - 11 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 treated with no proof of income and his notional income has to be taken at `8,000/- p.m, and for his age applicable multiplier is ‘15’. Loss of further income will be 8,000 X 12 X 18 X 15% = `2,59,200/-. All put together total compensation comes to `4,23,324/- as against `4,58,000/- assessed by the Tribunal, thereby, reduction of `34,800/-.

As regarding rate of interest is concerned the Tribunal has awarded interest at 9% p.a,. In the year 2013 no banks will offer the interest at the said rate. The Tribunal did not recorded any reasons why higher rate of interest is awarded.

In this regard the Division Bench of this Court in the case of MS.JOYEETA BOSE AND ORS. -VS- VENKATESHAN.V. AND ORS. in M.F.A.No.5896/2018 c/w M.F.A.Nos.4444/2018 and 4659/2018 (MV) DD 24.08.2020 with reference to Section 149(1) of Motor Vehicles Act, 1988, Rule 253 of Karnataka Motor Vehicles Rules, 1989 and Section 34 of Civil Procedure Code, at Para 52 has laid down principles regarding award of interest, it reads thus: - 12 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 "52. Thus, under Section 34 of CPC being squarely applicable to the interest awarded by the tribunal and Section 34 empowering the tribunal to award pendente lite interest and discretion being vested with the Court/Tribunal to award interest from the date of suit or petition is to the maximum extent of 6% p.a. or in other words, not exceeding 6% p.a., the contention raised by the learned Advocates appearing for the Insurance Company deserves to be accepted and accordingly, it is accepted. . . . . . . . . . . ." In view of the above, interest at the rate of 9% per annum is not justified and it shall be 6% per annum.

As regarding liability concerned autorickshaw KL-11-D-5015 having a valid driving license and policy of insurance is in force. Hence, out of the compensation of `4,23,324/- the insurer of the said autorickshaw has to pay 70% of the compensation.

As regarding liability on the part of autorickshaw KA-55-2082 admittedly the driver did not possess valid driving license. Hence, its Insurance Company can avoid its liability for violation of terms and conditions of the policy. Since, the accident is more than 11 years and the petitioner is a 3rd party, it is not proper to direct him to recover the compensation from the owner. In this regard the - 13 - NC: 2024:KHC:38626 MFA No. 7005 of 2017 C/W MFA No. 3882 of 2017 law is laid down by the Hon’ble Apex Court in the case of PAPPU YADAV AND OTHERS -V- VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208. is to be relied to apply the principle of pay and recovery. In view of the law laid down the Insurance Company has to deposit the compensation and recover the same from the owner of the motor vehicle.