Karnataka High Court
Shivanand vs Sri.Basappa And Anr on 23 September, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC-K:7636
MFA No. 201835 of 2018
C/W MFA No. 201836 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 201835 OF 2018 (MV-I)
C/W
MISCL. FIRST APPEAL NO. 201836 OF 2018
BETWEEN:
SHIVANAND S/O HANAMANTARAYA BIRADAR,
AGE: 27 YEARS, OCC: AGRICULTURE & COOLIE,
R/O CHEERALADINNI, TQ:B.BAGEWADI,
NOW RESIDING AT DARBAR GALLI,
BAGALKOT ROAD, VIJAYAPUR-586 101.
...APPELLANT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
1. SRI.BASAPPA S/O RAVUTHAPPA HULLAR,
AGE ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O HEGGUR TC, TQ:BILAGI, DIST: BAGALKOT,
Digitally signed by
MOHANKUMAR
NOW RESIDING AT TELAGI,
M
Location: HIGH
TQ : B.BAGEWADI-586 212,
COURT OF
KARNATAKA
OWNER OF MOTOR CYCLE NO.KA-28/Y-2587.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
S.S. FRONT ROAD, SANGAM BUILDING,
VIJAYAPUR-586 101.
DATE ACCIDENT: 15.09.2015,
POLICY NO.2401043115P104352402,
VALID FROM: 18.07.2015 TO 17.07.2015
...RESPONDENTS
(BY SRI.MANVENDRA REDDY, ADV. FOR R2; NOTICE TO R1
SERVED)
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NC: 2023:KHC-K:7636
MFA No. 201835 of 2018
C/W MFA No. 201836 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD PASSED BY THE COURT OF THE III ADDL. DIST. JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV, VIJAYAPUR,
AT: VIJAYAPUR IN M.V.C. NO.17/2016 DATED 24.11.2017
MODIFYING THE IMPUGNED ORDER AND BE PLEASED TO
ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS
PRAYED FAR BY THE APPELLANT.
IN MFA NO.201836/2018:
BETWEEN:
SMT. YAMANAWWA W/O RAVATAPPA HULLUR,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O HEGGUR TC, TQ:BILAGI,
DIST: BAGALKOT,
NOW RESIDING AT TELAGI,
TQ:B.BAGEWADI-586 121.
...APPELLANT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
1. SRI.BASAPPA S/O RAVUTHAPPA HULLAR,
AGE ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O HEGGUR TC, TQ:BILAGI, DIST: BAGALKOT,
NOW RESIDING AT TELAGI,
TQ : B.BAGEWADI-586 212,
OWNER OF MOTOR CYCLE NO.KA-28/Y-2587.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
S.S. FRONT ROAD, SANGAM BUILDING,
VIJAYAPUR-586 101.
DATE ACCIDENT: 15.09.2015,
POLICY NO.2401043115P104352402,
VALID FROM: 18.07.2015 TO 17.07.2015
...RESPONDENTS
(BY SRI.MANVENDRA REDDY, ADV. FOR R2; NOTICE TO R1
SERVED)
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NC: 2023:KHC-K:7636
MFA No. 201835 of 2018
C/W MFA No. 201836 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD PASSED BY THE COURT OF THE III ADDL. DISTRICT
JUDGE AND MACT NO.IV, VIJAYAPUR, AT: VIJAYAPUR IN M.V.C.
NO.19/2016 DATED 24.11.2017 MODIFYING THE IMPUGNED
ORDER AND BE PLEASED TO ALLOW THE CLAIM PETITION BY
GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANT.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though appeals are listed for admission, with consent of learned counsel for parties, they are taken-up for final disposal.
2. Challenging common judgment and separate awards dated 24.11.2017 passed by III Addl. District Judge and MACT-IV, Vijayapura (for short 'tribunal') in MVC nos.17/2016 and 19/2016, these appeals are filed.
3. Shri Sanganagouda B. Patil, learned counsel for appellants submitted that appeals were by claimants challenging finding of tribunal on contributory negligence and seeking enhancement of compensation.
4. It was submitted that on 15.09.2015 claimant - Shivanand was riding motorcycle bearing registration no.KA- 28/W-9389 (motorcycle no.1) on Kolhar - B.Bagewadi road, an accident occurred due to rash and negligent riding of -4- NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 motorcycle bearing registration no.KA-29/Y-2587 (motorcycle no.2) by its rider, which dashed against claimant's motorcycle. Due to which Shivanand and pillion rider Smt.Yamanawwa sustained grievous injuries. Despite taking treatment, they did not recover fully and sustained disability.
5. Claiming compensation, they filed claim petition under Section 166 of Motor Vehicles Act ('M.V.Act' for short) against owner and insurer of motorcycle no.2. On service of notice, only respondent no.2 - insurer filed objections denying claim petition averments, alleging contributory negligence and also violation of terms and conditions of policy.
6. Based on pleadings, tribunal framed issues and recorded evidence wherein claimants and Dr.S.S.Bedar were examined as PWs.1 to 3 and Exhibits P1 to P13 were marked. No evidence was led on behalf of respondents.
7. On consideration, tribunal held that accident occurred due to contributory negligence of riders of both motorcycles to extent of 50% each and held claimants entitled to only 50% of compensation. It was submitted that after investigation, police filed charge-sheet against rider of other -5- NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 motorcycle and therefore, apportionment of negligence and denial of 50% compensation was not justified.
8. For enhancement in MFA.no.201835/2018, it was submitted that claimant - Sri Shivanand was 20 years of age and earning Rs.9,000/- per month as coolie. He sustained fracture of right occipital calvarium with thin posterior inter - hemispheric hemorrhage and fracture of 2nd and 3rd metatarsals, assessed by PW.3 to have caused 40% permanent disability. And though claimant was entitled for compensation towards future loss of income, tribunal erred in not granting same. Even compensation awarded under other heads was contended to be meager and enhancement sought.
9. In MFA no.201836/2018, it was submitted that claimant - Smt.Yamanawwa was 50 years of age, earning Rs.9,000/- per month as coolie. Even though she sustained fracture of right collar bone and other serious injuries and took inpatient treatment for 8 days spending money, tribunal awarded inadequate compensation and sought enhancement.
10. On other hand, Sri Manvendra Reddy, learned counsel for respondent no.2 - insurer sought to support -6- NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 awards. It was submitted that claim petitions were under Section 166 of M.V. Act wherein tribunal had concluded that accident was due to contributory negligence of both motorcycle riders. It was submitted that PW.1 - Shivanand, admitted that at time of accident except two motorcycles, no other vehicles were moving on road. He also admitted about not possessing driving licence. Hence, award did not call for interference. Likewise, even assessment of compensation was justified and sought dismissal of appeals.
11. Heard learned counsel, perused impugned judgment and awards and records.
12. From above submissions, following points arise for consideration:
"(i) Whether apportionment of 50% contributory negligence against Shivanand and consequent denial of 50% of award amount to claimants was justified?
(ii) Whether claimants were entitled for enhancement of compensation?"
Point no.(i):
13. Thus, challenge of finding on contributory negligence is mainly on ground that charge-sheet was filed -7- NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 against rider of other motorcycle. But admission referred to by tribunal about riding motorcycle without driving licence, absence of any other vehicle on road and collision of motorcycles from opposite directions would substantiate finding of tribunal that it was due to negligence of riders of both motorcycles. Said finding is not established to be perverse. Hence, point no.(i) is answered in affirmative. Point no.(ii):
14. Though claimants stated that they were earning more than Rs.9,000/-, same was not substantiated with specific evidence. In absence, same has to be assessed at Rs.8,000/- which is adopted as notional income for year 2015.
15. Claimant - Shivanand, sustained fractures of 2nd and 3rd metatarsals, fracture of right occipital calvarium with thin posterior inter hemispheric hemorrhage. PW.3 - Dr.S.S.Bedar, who examined him for assessment of disability observed that claimant was suffering from headache, giddiness, difficulty in pronouncing some words and sagging of face on right side due to paralysis of facial nerve. Even loss of memory to some extent and difficulty of vision in right eye were noted. Based on same, towards intellectual disability, 25% disability is -8- NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 assessed and 20% due to paralysis of facial nerve, resulting in combined neurological disability of 40%.
16. However, as noted by tribunal, PW.3 admitted that he was not neurologist or psychiatrist and did not treat claimant. In claim petition under M.V.Act, there is no bar against assessment of disability by a doctor who did not treat victim. But, such assessment has to be viewed carefully against exaggeration. Since PW.3 found that accidental injuries had affected memory to some extent, caused irritable nature etc., notional disability of 10% can be considered. Thus, compensation towards future loss of income would be :
Rs.8,000/- x 10% x 12 x 18 = Rs.1,72,800/.
17. Further, tribunal awarded Rs.57,000/- towards pain and suffering, which would be just and proper considering fractures sustained by claimant. Likewise, award of Rs.93,488/- towards medical expenses against bills produced and Rs.5,000/- towards diet etc, would also be just and proper. Normally, fractures take three months to heal. Therefore, claimant is awarded Rs.24,000/- towards loss of income during laid-up period.
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NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018
18. As per opinion of PW.3, claimant sustained loss of amenities due to paralysis of facial nerve on right side. Therefore, award of Rs.25,000/- would be meager and hence enhanced to Rs.35,000/-. Thus, total compensation would be Rs.3,82,288/-.
19. Claimant - Smt.Yamanawwa stated to have suffered from fracture of right collar bone and also bilateral parietal acute SAH, bilateral frontal operculum tiny acute hemorrhagic contusion and left parietal scalp mild subgaleal haematoma. Admittedly, no doctor is examined to assess disability. In absence, tribunal awarded Rs.59,000/- towards pain and suffering, Rs.8,000/- towards incidental expenses for inpatient treatment period of 8 days and Rs.13,600/- towards loss of income during laid-up period. Considering fact that she sustained one fracture apart from head injury, above award would be just and proper and not call for enhancement. Award of Rs.46,958/- towards medical expenses against bills produced which is in complete reimbursement thereof, would not call for interference. Further, award of Rs.25,000/- towards loss of amenities after noting that fracture was united would also be proper. Under above circumstances, there would be no scope
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NC: 2023:KHC-K:7636 MFA No. 201835 of 2018 C/W MFA No. 201836 of 2018 for enhancement. Thus, point no.(ii) is answered partly in affirmative in case of Shivanand and in negative in case of Smt.Yamanawwa.
20. Consequently, following:
ORDER
(i) MFA.no.201835/2018 is allowed in part, claimant - Shivanand is held entitled for enhanced compensation of Rs.1,91,144/-
(being 50% of total compensation of Rs.3,82,288/-) with interest at 9% p.a. from date of claim petition till deposit.
(ii) Insurer is directed to deposit same within six weeks from date of receipt of certified copy of this judgment.
(iii) On deposit, enhanced compensation to be released.
(iv) MFA.no.201836/2018 is dismissed.
Sd/-
JUDGE
MKM
List No.: 1 Sl No.: 53