IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.3663 OF 2014 (MV) BETWEEN Sri. Rangaswamaiah @ Rangaswamy S/o Late Kodappa Aged about 41 years R/at Abuthnahalli Tumkur Taluk @ District-572 101.
(By Sri.Prabhuswamy N, for Sri. V.B.Siddaramaiah, Advocates) AND 1. The United India Insurance Co.Ltd., Prabhu Building Main Road, Puttur Dakshina Kannada District-574 216 Rep. by its Branch Manager ... Appellant 2. Sri. Rukumaya K S/o Devanna Gowda Kattahara House Kaniyoor Village Puttur Taluk, South Kenara District (Mangalore)-575 001. ... Respondents (By Sri.L.Sreekanta Rao, Advocate for R1 Vide Order dated 15.07.2016 notice to R2 dispensed with) This MFA is filed under Section 173(1) of M.V. Act against the judgment and award dated 01.06.2013 passed in MVC No.1240/2011 on the file of the Senior Civil Judge & Additional MACT-15, Kunigal, partly allowing the claim petition for Compensation and seeking enhancement of Compensation.
This MFA coming on for final hearing, this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant - injured and the learned counsel for respondent no.1 and perused the records. Notice to Respondent No.2 is dispensed with.
2. This appeal is directed against the impugned judgment and award rendered by the Tribunal in MVC No.1240/2011 dated 1.6.2013, whereby the Tribunal has awarded total compensation of Rs.7,96,200/- however fastening 60% contributory negligence on the injured - claimant and thereby directing the Insurance Company to pay only 40% out of the above awarded compensation to the claimant. Thus, the Insurance Company was saddled with the liability to an extent of only 40% to pay the compensation. This appeal has preferred filed by the appellant – injured seeking for enhancement of compensation awarded by the Tribunal as well as for exonerating the injured of the 60% contributory negligence and thereby for a direction fixing 100% liability on the Insurance Company.
3. The factual matrix is that on 2.5.2011 at about 8.30 p.m. when the appellant – injured along with one Gangaiah were proceeding towards Kunigal side on a Hero Honda Motor cycle bearing Reg.No.KA-06-U-2767 from Yadeyur, though the appellant was riding slowly and cautiously, when they reached Magadipalya at Venkateshwara Weigh Bridge, a Maruthi car bearing Reg.No.KA-19-MB-3033 came from Kunigal side in a rash and negligent manner and dashed against their motor cycle. As a result, the appellant as well as the pillion rider Gangaiah fell down and sustained grievous injuries and immediately were admitted to hospital and were provided treatment. Since the appellant incurred huge medical expenses in view of the injuries, he filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending car remained absent and was placed exparte. However, the insurer did appear before the tribunal, filed its written statement and contested the claim petition. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. However, it was contended that the accident occurred due to the negligence of the claimant as well who was riding the motorcycle without a driving licence.
5. The tribunal, after evaluation of the oral and documentary evidence has held that the accident though had occurred due to rash and negligence of the driver of the offending vehicle, also attributed 60% contributory negligence on the appellant - claimant and consequently awarded total compensation of Rs.7,96,200/- with interest at 6% per annum from the date of petition till the date of realization. However, only 40% of the said sum was liable to be paid by the Insurer. It is this judgment which is under challenge in this appeal.
6. The learned counsel for the appellant produces a copy of the Division Bench judgment of this Court in MFA No.3080/2013 rendered on 15.10.2014 in respect of the pillion rider Gangaiah who died in the very same accident where the present appellant is the rider of the vehicle. In the said judgment, the question as regards contributory negligence of 60% attributed on the rider of the motorcycle has been dealt with and the Division Bench on an examination of the entire evidence on record, has set aside the finding of the tribunal attributing 60% contributory negligence on the rider. Thereby, it has held that the accident occurred due to the rash and negligent driving of the driver of the offending car. In view of the settled position as regards contributory negligence held by the Division Bench judgment of this Court in MFA No.3080/2013, the learned counsel contends that the finding of the Tribunal attributing 60% contributory negligence on the rider be set-aside in this appeal as well and the Insurer be directed to deposit the entire compensation.
Further, as regards the question of enhancement, the learned counsel contends that prior to the accident, the appellant was hale and healthy aged about 40 years and was doing mason work and earning Rs.400 to 500 per day. Hence, his income taken by the Tribunal at Rs.4,500/- requires interference and contends that his notional income be taken at Rs.5,000/- to compute the compensation towards ‘Permanent disability’. Further, he contends that the compensation granted by the Tribunal under other heads also be enhanced suitably. Particularly, he contends that since he was an in- patient in hospital for a period of 148 days, the compensation towards ‘Attendant charges’ and towards ‘Loss of income during period of hospitalization’ may be enhanced suitably. Hence, on these grounds, the learned counsel seeks that his appeal be allowed and the compensation awarded by the Tribunal be enhanced suitably.
7. Per contra, the learned counsel appearing for the insurer contends that though this being a case of injury, the Tribunal while granting compensation towards ‘Permanent disability’, has erred in adding 30% of his income towards ‘future prospects’. He contends that ‘future prospects’ cannot be added to the income of the injured and it shall be added only in cases where the accident has resulted in the death of a person.
It is his further contention that when already the Tribunal has taken into consideration his whole body disability at 50% and has awarded compensation towards ‘Permanent disability’, it was not justified in again granting compensation towards ‘Deformity’. Hence, he contends that the compensation granted under the said head be absolved. However, he does not dispute the judgment of the Division Bench of this Court in MFA No.3080/2013 exonerating the rider of the vehicle – appellant herein of the contributory negligence.
8. Having regard to the contentions of both the parties and on a careful evaluation of the material on record, I find that there is no dispute about the accident that occurred on 2.5.2011 and with regard to the injuries sustained by the appellant in the said accident. As rightly contended by the counsel for the appellant, I find that the Tribunal has taking the income of the injured slightly at a lower side. Hence, I hereby take his notional income at Rs.5,000/- in order to compute the compensation towards ‘Permanent disability’. Though the whole body disability taken by the Tribunal at 50% and the multiplier applied at ‘14’ is maintained, as contended by the learned counsel for the Insurer, I find that the Tribunal has erred in adding 30% of his income towards ‘future prospects’. Since it is a case of injury, I find that no amount shall be added to the income towards ‘future prospects’.
Hence, with the income at Rs.5,000/- and whole body disability at 50%, applying ‘14’ multiplier, the compensation towards ‘Permanent disability’ works out to Rs.4,20,000/- (5000 x 12 x 14 x 50/100) as against Rs.4,91,400/- awarded by the Tribunal.
Further, in view of the fact that the disability aspect has been taken care of, I hereby absolve the compensation of Rs.50,000/- granted by the Tribunal towards ‘Deformity’.
In view of the fact that the appellant was an in- patient in hospital for a period of 148 days and had incurred huge expenses towards ‘attendant charges’, I find that the compensation granted by the Tribunal towards the said head is inadequate. Hence, I hereby award a compensation of Rs.30,000/- towards ‘Attendant charges’ as against Rs.14,800/- awarded by the Tribunal. Further, I hereby award a compensation of Rs.30,000/- towards ‘Loss of income during the period of hospitalization’ as against Rs.20,000/- awarded by the Tribunal. Thus, the total compensation comes to Rs.6,50,000/- as against Rs.7,96,200/- granted by the Tribunal, which shall carry interest at 6% from the date of petition till the date of realisation.
However, in view of the judgment of the Division Bench in MFA No.3080/2013 disposed of on 15.10.2014, the appellant is exonerated of the 60% contributory negligence and the entire liability is fastened on the Insurance Company.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out
taxi and conveyance charges 50,000 Towards deformity Loss of Compensati on under the said head is absolved 20,000 Nil amenities in life Loss of income during the period of hospitalizatio n 50,000 Nil 50,000 20,000 10,000 30,000 TOTAL 7,96,200 7,00,000 Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 01.06.2013 passed by the Tribunal in MVC No.1240/2011 is hereby modified. The compensation payable to the appellant / claimant is re- assessed by this court at Rs.7,00,000/- as against Rs.7,96,200/- assessed by the Tribunal. The compensation shall carry interest at the rate of 7% p.a.
from the date of petition till the date of realisation. The finding of 60% contributory negligence on the rider of the vehicle is hereby absolved and the Insurer is saddled with the entire liability. The first respondent – United India Insurance Co. Ltd. shall deposit the entire compensation with interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellant / claimant, on proper identification. However, the rate of interest and deposit as held by the Tribunal is concerned shall remain unaltered.
Office to draw the decree accordingly.
Sd/- JUDGE KS