IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A. No.5093/2017 (MV) BETWEEN:
SRI GOVINDARAJU K.V. S/O. VENKATASWAMAIAH AGED ABOUT 38 YEARS, TECHNICIAN IN BANGALORE DAIRY, R/O. KOTHIHALLI, TUMKUR TALUK, TUMKUR – 572 103. ... APPELLANT (BY SRI RAMESH K.R., ADVOCATE) AND:
1. DHEEMNATH S/O. RAVINDRANATH H.G. AGED ABOUT 37 YEARS, R/AT 3RD LINK, JAYANAGAR (WEST), TUMKUR – 572 103.
2. UNITED INDIA INSURANCE CO. LTD., JAYADEVA COMPLEX, B.H. ROAD, TUMKUR – 572 101.
REP. BY ITS BRANCH MANAGER. ... RESPONDENTS (BY SRI JWALA KUMAR, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V/O. DATED 29/11/2018) ***** THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.10.2016 PASSED IN MVC NO.454/2015 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with consent of learned counsel appearing on both sides, it is taken up for final disposal.
2. This appeal is directed against the judgment and award passed by the learned II Addl. Senior Civil Judge and MACT at Tumakuru, wherein the claim petition bearing MVC.No.454/2015 came to be partly allowed and a compensation of Rs.2,21,234/- was ordered together with interest at 6% p.a. from the date of petition till the date of realization.
3. The proceedings came to be initiated because of the road traffic accident dated 22/10/2014 at about 5.30 p.m. when the petitioner was riding his pulsar motorbike bearing Regn.NO.KA-41-U-9178 from Heggere New Extension towards main road, in front of Raja Tiles Factory, near Heggere on NH-206 Road, Tumakuru Taluk, the rider of Yamaha motorbike bearing Reg.No.KA-06-EN- 3217 drove it in high speed, rash and negligent manner and dashed to the petitioner. As a result, petitioner – claimant sustained serious injuries and was admitted to Colombia Asia Hospital, Bangalore, for treatment and was an inpatient till 31/10/2014 and was also outpatient for a period of eight months. He was drawing a salary of Rs.30,000/- as he was working in Bangalore Diary. He is said to be aged about 36 years. He has sustained injuries like fracture of distal tibia/fibula with defect in the medical malunion, lacerated wound over left leg medical aspect of ankle measuring 8 x 2 c.m. with bone deep and laceration over left side face.
4. Learned counsel for the appellant would submit that the petitioner – claimant was very healthy before the accident and he has become weak because of the injuries sustained in the accident and his life is not that much free and easy after the accident when compared to pre- accident period and hence, prays for enhancement.
5. Learned counsel for respondent – Insurance Company opposes for enhancement of compensation.
6. In the context and in the circumstances of the case, Rs.2,21,234/- total compensation granted by the Tribunal appears to be on the lower side. Considering the award of medical expenses and the other expenses, I find that an amount of Rs.1,00,000/- should have been granted. Thus, a global compensation of Rs.1,00,000/- is granted (i.e., 1,81,734 + 1,00,000 = 2,81,734/-). The Tribunal has considered the contributory negligence on the part of the petitioner, which is denied by the appellant and affirmed by the respondent.
7. In the context and in the circumstances of the case, though actual negligence on the part of the claimant cannot be ascertained, it cannot be said that there was no negligence on the part of the appellant. However, it may not be to the extent of the percentage determined by the Tribunal. Hence, it is just and proper to limit the percentage of 20% of contributory negligence instead of 50%.
8. Accordingly, the appeal is partly allowed. The total compensation of Rs.2,81,734/- is awarded. The respondent – Insurance Company is directed to pay the enhanced compensation to the appellant – claimant. However, the appellant – claimant is considered to be partly negligent and the same is quantified to an extent of 20%. Though, out of the total compensation with interest, the appellant – claimant is entitled for 80% from the Insurance Company. The balance amount whatever is payable to be deposited by the Insurance Company within 30 days from the date of receipt of the certified copy of the order. To the above extent, this impugned judgment and award is modified.
Sd/- JUDGE *mvs