IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.1092/2014 [MV] BETWEEN:
BASAVARAJ S/O DURGAPPA AGED ABOUT 37 YEARS ANNEHAL VADDARAHATTY VILLAGE CHITRADURGA TALUK-577501.
(BY SRI.SPOORTHY HEGDE N, ADV.) AND:
1. JAYAPANNA S S/O SANNAPPA AGED ABOUT 44 YEARS OWNER OF THE MOTORCYCLE NO.KA-16-R-5389 R/O JAMPANNAHATTY VILLAGE ANNEHALL POST CHITRADURGA TALUK-577501.
2. M/S. NATIONAL INSU.CO. LTD., BY ITS BRANCH MANAGER B M COMPLEX LAKSHMI BAZAR CHITRADURGA TOWN-577501.
(BY SRI.K N SRINIVASA, ADV. FOR R2 R1 IS SERVED & UNREPRESENTED) ...APPELLANT …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.11.2013 PASSED IN MVC NO.602/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-V. CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 12.11.2013 passed in MVC No.602/2012 on the file of the II Additional Senior Civil Judge, Additional MACT V, Chitradurga.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 04.09.2011 the claimant was proceeding as a pillion rider in a Motor Cycle bearing Reg.No.KA-
16-Q-2713 along with one Nagendra, when they reached near Halappa’s land another Motor Cycle bearing Reg.No.KA-16-R-5389 came in a rash, negligent manner and dashed to the claimant’s vehicle. Due to the impact the claimant fell down and suffered grievous injuries. Immediately he was shifted to District Government Hospital, Chitradurga, subsequently he took treatment as inpatient at Kasturbha Hospital Manipal, for about 40 days.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal and filed their respective objections denying the claim petition averments. It is also stated that the alleged accident took place due to negligent riding of the motor cycle by the rider of the claimant’s vehicle. First respondent is the owner of the vehicle, which is insured with the 2nd respondent – Insurance Company. Second respondent admitted issuance of policy and stated that the claimant would be said to be the rider of the offending vehicle, who did not possess valid and effective driving licence as on the date of accident. The claimant examined himself as PW.1 and got marked the documents Exs.P1 to P38. The respondent examined RW.1 and marked the documents Exs.R1 and R2. The Tribunal on appreciating the material on record awarded total compensation of Rs.60,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads and saddled 50% contributory negligence on the claimant :
a. Pain and suffering 20,000/-
b. Medical expenses 35,000/-
c. Attendance, traveling expenses 5,000/-
Total Rs.60,000/-
Thus the claimant was entitled to only compensation of Rs.30,000/- with interest at 6% p.a. from the date of petition till the date of realization. Aggrieved by the quantum of compensation awarded as well as saddling of 50% contributory negligence on the claimant, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side and he submits that the Tribunal committed an error in saddling 50% of contributory negligence on the claimant. It is his submission that the claimant was a pillion rider and the rider of the motor cycle was one Nagendra. Learned Counsel submits finding of the Tribunal is that riders of both the Motor Cycles contributed to the occurrence of the accident, which is against the material on record and seeks to set aside the said finding. Further with regard to the quantum of compensation, it is his submission that the claimant has suffered fracture of bones of right fore arm as well as other injuries to the body, but the Tribunal failed to award proper compensation for the injuries suffered and treatment taken. It is his further submission that the Tribunal failed to award any compensation on the head loss of amenities. Hence he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation and has rightly saddled 50% contributory negligence on the claimant. It is his submission that both the motor cycles involved in the accident attributed contributory negligence to the occurrence of the accident. It is submitted that riders of Motor Cycle was not possessing driving license as on the date of accident. Further it is also submitted that at the time of accident three persons were traveling in the claimant’s vehicle and as such there is violation of policy condition. Therefore, the Tribunal has rightly saddled 50% contributory negligence on the claimant which needs no interference.
7. On hearing the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration is as to :
a. Whether the Tribunal is justified in saddling 50% contributory negligence on the claimant ?
b. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to the above points is in the affirmative for the following reasons :
The occurrence of the accident on 04.09.2011 involving Motorcycle bearing Reg.No.KA-16-Q-2713 and Motor Cycle bearing Reg.No.KA-16-R-5389 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation and being aggrieved by saddling of 50% contributory negligence on him. The Tribunal based on material on record has given a finding that riders of both the motor cycles equally contributed negligence to the occurrence of the accident in question. It is also further submitted that the rider of the offending vehicle was not possessing valid and effective driving license to ride the motor cycle. The Tribunal considering the document such as IMV report has come to the conclusion that the accident had occurred on the middle of the road and there was head on collusion between the two motor cycles. Considering the manner in which the accident had occurred, the Tribunal has given a definite finding that the riders of both the motor cycles equally contributed negligence to the occurrence of the accident and thus saddled 50% contributory negligence on the claimant, which needs no interference. The claimant has suffered fracture of bones of right fore arm and has undergone surgery, he was inpatient from 6.9.2011 to 12.09.2011. The Tribunal has awarded a sum of Rs.20,000/- towards pain and suffering, Rs.5,000/- towards attendance and traveling expenses, apart from Rs.35,000/- towards medical expenses and awarded total compensation of a sum of Rs.60,000/-. But as the claimant has suffered fracture of bones of right fore arm and has undergone surgery he would be entitled for compensation on the head ‘loss of amenities’. Looking to the injuries suffered, treatment taken and pain and suffering undergone by the claimant, I am of the opinion that the claimant would be entitled for another sum of Rs.30,000/- on the head of loss of amenities. In view of 50% contributory negligence, he would be entitled to Rs.15,000/- on the said head. Thus the compensation is enhanced by another sum of Rs.15,000/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.15,000/- in addition to Rs.30,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms