IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.5028/2012 (MV) C/W MISCELLANEOUS FIRST APPEAL No.5450/2012 IN MFA NO.5028/2012 BETWEEN:
THE ORIENTAL INS. CO. LTD., NO.2023, HIG III PHASE, YELAHANKA NEW TOWN, BANGALORE.
DULY REPRESENTED BY:
THE REGIONAL MANAGER, THE ORIENTAL INS. CO. LTD., REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45 RESIDENCY ROAD, BANGALORE – 560 023 – DULY REPRESENTED BY ITS MANAGER.
…APPELLANT (BY SRI A.RAVISHANKAR, ADVOCATE) AND:
1. SRI.CHETHAN, AGED ABOUT 22 YEARS, S/O SRI.CHANDRAIAH, R/O RANGENAHALLI VILLAGE, BARAGUR POST, CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT.
2. SMT. PRAMEELA MRUTHYUNJAYA, AGED ABOUT 40 YEARS, R/O III MAIN, ‘D’ BLOCK, MCEHS LAYOUT, SAHAKARANAGAR, BANGALORE – 560 092.
... RESPONDENTS (BY SRI M.K.BHASKARAIAH, ADVOCATE FOR R1; R2 – NOTICE DISPENSED WITH VIDE ORDER DATED 22.11.2012) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2012 PASSED IN MVC NO.7657/2010 ON THE FILE OF PRINCIPAL MACT & CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.3,41,289/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO.5450/2012 BETWEEN:
CHETHAN, AGED ABOUT 22 YEARS, S/O CHANDRAIAH, R/O RANGANAHALLI VILLAGE, BARAGUR POST, CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT.
…APPELLANT (BY SRI M.K.BHASKARAIAH, ADVOCATE) AND:
1. THE ORIENTAL INSURANCE CO. LTD., NO.2023, HIG III PHASE, YELAHANKA NEW TOWN, BENGALURU – 560 064.
BY ITS MANAGER.
2. SMT. PRAMILA MRUTHYUNJAYA, MAJOR, NO.2203, 3RD MAIN, ‘D’ BLOCK, MCEHS LAYOUT, SAHAKARANAGAR, BANGALORE – 560 092.
... RESPONDENTS (BY SRI A.RAVISHANKAR, ADVOCATE FOR R1; R2 – NOTICE DISPENSED WITH VIDE ORDER DATED 14.11.2014) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2011 PASSED IN MVC NO.7657/2010 ON THE FILE OF PRINCIPAL MACT & CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.5028/2012 is filed by the Insurance Company questioning the liability and MFA No.5450/2012 is filed by the claimant for enhancement of compensation. Both the appeals are against the judgment and award dated 03.02.2011 passed in MVC No.7657/2010 on the file of Principal M.A.C.T. and Chief Judge, Court of Small Causes, Bangalore.
2. The claimant filed the claim petition under Section 166 of Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in the road traffic accident which occurred on 10.10.2010. It is stated that the claimant was riding motorcycle bearing No.KA-44-H- 5017, at that time, a car bearing No.KA-50-M-0166, came in a rash and negligent manner and dashed against the motorcycle. As a result, the claimant sustained grievous injuries. He was treated initially at Government Hospital, Tiptur and was shifted to Sanjay Gandhi Institute of Trauma and Orthopedics, Bangalore. It is stated that the claimant was inpatient for more than three months. It is stated that he was earning Rs.6,000/- per month.
3. On service of summons, Insurance Company appeared and filed its objections denying the averments of the claim petition and also contended that the driver of the car had no valid and effective driving licence as on the date of the accident. The claimant examined himself as PW-1 and also examined Dr.Prakashappa as PW-2 in support of his case and got marked 13 documents.
4. Based on the material on record and also after assessing the evidence, the Tribunal awarded total compensation of Rs.3,41,289/- to the claimant with interest at the rate of 6% p.a. Aggrieved by the fastening of entire liability on the insurer, the insurer is before this Court in MFA No.5028/2012, whereas claimant not being satisfied with the quantum of compensation, is before this Court in MFA No.5450/2012.
5. Heard the learned counsel for the claimant and learned counsel for the Insurer. Perused the records.
6. Learned counsel for the Insurance Company in MFA No.5028/2013 submits that the Tribunal committed an error in fastening the entire liability on the insurer, since the rider of the motorcycle i.e., claimant was also responsible for the occurrence of the accident. He submits that the permitted capacity to drive the motorcycle is 1+1, whereas statement of one of the pillion rider is that the claimant was driving the motorcycle with two pillion riders at the time of accident. Therefore, learned counsel for the appellant would rely on Ex.P1 – FIR and also Ex.P2 spot mahazar to contend that the claimant was riding his motorcycle with two pillion riders. Therefore, he submits that the contributory negligence to the extent of 25% is to be fastened on the claimant.
7. Per contra, learned counsel for the claimant – appellant in MFA No.5450/2012 would submit that even though the claimant was riding the motorcycle with two pillion riders, on that ground the Insurance Company cannot seek for absolving its liability on the ground of contributory negligence. Further, he submits that the driver of the car is not examined in support of their case. He further submits that the compensation awarded by the Tribunal is on the lower side. The Tribunal has taken the income of the claimant at Rs.3,000/- per month, whereas the Tribunal ought to have taken Rs.6,000/- per month as the income of the claimant, since the accident is of the year 2010.
8. On hearing the learned counsels and after going through the records, the following questions arise for consideration:-
“1. Whether the claimant is also contributed to the accident by riding the motorcycle with two pillion riders?
2. Whether the claimant is entitled for enhanced compensation?”
9. The accident occurred on 10.10.2010 between the motorcycle bearing No.KA-44-H-5017 and car bearing No.KA-50-M-0166 and accidental injuries suffered by the claimant is not in dispute in this appeal. The only ground urged by the Insurance Company is that the claimant was riding his motorcycle with two pillion riders and has contributed to the accident. The claimant has examined one of the pillion rider and in his statement, the pillion rider has stated as follows:-
£Á£ÀÄ ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVgÀÄvÉÛãÉ. ¢£ÁAPÀ 10.10.2010 gÀAzÀÄ ¨É½îUÉ ¸ÀA§A¢üUÀ¼ÁzÀ zÀ±Àð£ï ºÁUÀÄ ZÉÃvÀ£ï ªÀÄÆgÀÄ d£ÀgÀÄ ¸ÉÃj KA.44.H.5057 ¢éZÀPÀæzÀ°è ZÉÃvÀ£À£ÀÄ F »AzÉ w¥ÀlÆgÀÄ ºÁ¸À£ï ¸ÀPÀð¯ï §½ EgÀĪÀ ¸ÀĪÀÄ ªÉÊ£ïì ±Á¥ï£À°è PÉ®¸À ªÀiÁqÀÄwÛgÀĪÁUÀ ©lÄÖ ºÉÆÃVzÀÝ §mÉÖUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ¯ÉAzÀÄ gÀAUÉãÀºÀ½è¬ÄAzÀ w¥ÀlÆgÀÄ ¸ÀĪÀÄ ªÉÊ£ïì CAUÀrAiÀÄ ºÀwÛgÀ §AzÀÄ £ÀAvÀgÀ ªÉʱÁ° ¨Ágï ºÀwÛgÀ ºÉÆÃV ZÉÃvÀ£À£À ¸ÉßûvÀ£À£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §gÀ®Ä w¥ÀlÆgÀÄ-CgÀ¹PÉgÉ gÀ¸ÉÛAiÀÄ, w¥ÀlÆgÀÄ NGO PÀZÉÃjAiÀÄ ªÀÄÄA¨sÁUÀ ¨É½UÉÎ ¸ÀĪÀiÁgÀÄ 9.30 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÀÅ ªÀÄÆgÀÄ d£ÀgÀÄ ¢éZÀPÀæ ªÁºÀ£ÀzÀ°è ºÉÆÃUÀÄwÛgÀĪÁUÀ JzÀÄgÀÄUÀqɬÄAzÀ CgÀ¹PÉgÉ PÀqÉUÉ ºÉÆÃUÀ®Ä §AzÀ PÉA¥ÀÄ §tÚzÀ PÁgï£ÀÄß CzÀgÀ ZÁ®PÀ CwªÉÃUÀ & CeÁUÀgÀÆPÀvɬÄAzÀ Nr¹PÉÆAqÀÄ §AzÀÄ DvÀ£À ªÀÄÄA¨sÁUÀ §gÀÄvÀÛzÀÝ ªÁºÀ£ÀªÀ£ÀÄß ¸ÉÊqï ºÉÆqÉAiÀÄ®Ä vÀ£Àß PÁgÀ£ÀÄß gÀ¸ÉÛAiÀÄ JqÀ ¨sÁUÀ¢AzÀ §® ¨sÁUÀPÉÌ Nr¹PÉÆAqÀÄ §AzÀÄ ZÉÃvÀ£ï Nr¸ÀÄwÛzÀÝ ªÉÄîÌAqÀ ¢éZÀPÀæ ªÁºÀ£ÀPÉÌ rQÌ ºÉÆr¹ C¥ÀWÁvÀ¥Àr¹zÀ ¥ÀjuÁªÀÄ JgÀqÀÆ ªÁºÀ£ÀUÀ¼ÀÄ dRAUÉÆAqÀÄ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï Nr¸ÀÄwÛzÀÝ ZÉÃvÀ£À£À §®PÁ°UÉ §®ªÁzÀ ¥ÉlÄÖ ©zÀÄÝ ªÀÄÆ¼É vÀÄAqÁV ºÉÆÃgÀ §AzÀÄ gÀPÀÛUÁAiÀĪÁVzÀÄÝ ªÀÄzÀå PÀĽwzÀÝ £À£Àß §®PÁ°UÉ & £À£Àß »A§¢ PÀĽwÛzÀÝ zÀ±Àð£ï §®PÁ°UÉ ¥ÉlÄÖUÀ¼ÀÄ ©zÀÄÝ gÀPÀÛUÁAiÀĪÁVgÀÄvÀÛzÉ.
10. Further the spot mahazar also would indicate that the claimant was riding two wheeler with two pillion riders. This Court in MFA No.25390/2011 and connected matters decided on 07.04.2017 at paragraph 12 has held as follows:-
“12. Therefore, in the fact situation, when the rider of the motorcycle has taken the responsibility of taking two pillion riders on such a small moped, he is compromised with his ability to drive carefully and cautiously on a highway. It is needless to say that the accident has taken place in such a way that all the three persons on the moped are injured. While observing as above, this Court further notice that the other two persons who are pillion riders are also aware that moped is not meant for taking more than two persons. Inspite of the fact that they knew about it, they have traveled on the said motorcycle putting their life into risk and as well as the life of the other road users to the risk, thereby contributing to the accident being caused which is matter of serious concern.”
11. The above decision would indicate that riding of the motor bike with two pillion riders would amount contributing to the accident being caused. Thus, in the case on hand, since the claimant was riding the motorcycle with two pillion riders, it may be held that the claimant is also responsible for causing the accident. Learned counsel for the claimant would submit that in the cross- examination, the said suggestion was not put to the claimant and there is no evidence on record. When the statement of one of the pillion rider clearly states that the claimant was riding motorcycle with two pillion riders, no other evidence is necessary. Thus, I hold that the claimant is also responsible for 25% of contributory negligence.
12. The accident is of the year 2010. The tribunal has taken only Rs.3,000/- per month as income of the claimant. The claimant was an agriculturist. The income taken by the Tribunal for calculating compensation is on the lower side. This Court and Lok Adalath while settling the accident claims of the year 2010, normally would take Rs.6,000/- per month as notional income. Hence, I deem it appropriate to take Rs.6,000/- per month as notional income of the claimant, for awarding the compensation under the head ‘loss of earning on account of disability’. Thus, the income of the claimant is taken at Rs.6,000/-, with multiplier ‘18’ for determining computation on the head ‘loss of future earnings’ would be Rs.3,24,000/- (6,000x12x18x25%). The Tribunal assessed the disability of the claimant at 25%, taking into consideration the evidence of the Doctor – PW-2 and medical records, which is proper and needs no interference. Hence, I am of the view that the compensation awarded under the heads ‘pain and sufferings’ and ‘attendant charges’ is on the lower side, which requires to be enhanced. Thus, the claimant would be entitled for the modified compensation as follows:-
SL.NO. PARTICULARS AMOUNT (Rs.) 1. Towards loss of future earnings 3,24,000
Thus, the appellant - claimant in MFA No.5450/2012 is entitled for total compensation of Rs.5,73,289/- as against Rs.3,41,289/- awarded by the Tribunal. As it is held that the claimant is responsible for contributory negligence to an extent of 25%, the claimant would be entitled for 75% of the compensation i.e., Rs.4,29,967/- (Rs.5,73,289 x 75/100=4,29,967/-) along with interest at the rate of 6% p.a. Accordingly, the appeals are allowed-in-part.
The amount in deposit by the Insurance Company to be transmitted to the concerned Tribunal.
Sd/- JUDGE VMB