Karnataka High Court
Sri Saravana vs Sri T Kiran Vinod Kumar on 18 March, 2013
Equivalent citations: 2015 AAC 389 (KAR), 2014 (4) AIR KANT HCR 243, (2013) 3 KANT LJ 643, (2013) 3 TAC 512, (2014) 3 ACJ 1968, (2013) 4 ACC 620, (2013) 4 CIVLJ 188
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.10073/2011 (MV)
BETWEEN:
SRI SARAVANA
S/O SRI M PACHANATHAN
AGED ABOUT 32 YEARS
R/A NO.341, A NARAYANAPURA
DOORVANINAGARA POST
BANGALORE-560 016. ... APPELLANT
(BY M/S.HNS LAW ASSOCIATES, ADVOCATES)
AND :
1. SRI T KIRAN VINOD KUMAR
W/O SRI THULASI MADHAVA DASS V
R/O NO.5, 5TH CROSS, MICHEAL PALYA
1ST STAGE, INDIRANAGAR
BANGALORE - 560 038
(OWNER OF MOTOR CYCLE BEARING
NO.KA-03-HF-2025)
2. H D F C ERGO GENERAL INSURANCE CO LTD.
EMBASSY CLASSICS
III FLOOR, VITTAL MALLYA ROAD
BANGALORE-560 001
(POLICY NO.VM00416039000100). ... RESPONDENTS
(BY SRI D VIJAYAKUMAR, ADV. FOR R2; NOTICE TO R1 IS
DISPENSED WITH V.C.O. DATED 10.04.2012)
2
THIS APPEAL IS FILED U/S 173(1) OF MV ACT, TO
MODIFY THE JUDGMENT AND AWARD DATED:15.06.2011
PASSED IN MVC NO.1538/2010, ON THE FILE OF XIII
ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT
OF SMALL CAUSES AT BANGALORE, 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
This is a claimant's appeal for enhancement of compensation.
2. I have heard learned counsel for parties. I have been taken through evidence and the impugned award.
3. The Tribunal having regard to the fact that claimant unmindful of vehicles plying on road was crossing the road has held that claimant guilty of contributory negligence to extent of 30%.
4. The Tribunal has relied on a judgment of this court, reported in ILR 2004 KAR 1104 (in the case of Koosappa 3 Poojari Vs. K.Sadabba & others). The Tribunal has relied on rough sketch marked as Ex.P.4. The contents of this document have not been disputed by either party.
The accident took place at 9 a.m., on 19.02.2010 near the intersection of K.R.Puram Railway Station Road and Tin Factory Road. The claimant was crossing road from south to north. The rider of offending vehicle was proceeding in the direction of west to east. The claimant had crossed major portion of road. The rider of offending vehicle having approached junction had not reduced speed of offending vehicle. There is no evidence on record to show that junction was manned by police at the time of accident.
5. The learned counsel for Insurance Company, relying on the judgment of this court, reported in ILR 2004 KAR 1104 (in the case of Koosappa Poojari Vs. K.Sadabba & others), would submit that claimant had crossed road where he was not supposed to cross road. In the circumstances, 4 Tribunal was justified in holding that claimant was guilty of contributory negligence to an extent of 30%.
6. In the aforestated judgment, claimant was crossing Mangalore-Udupi Road. The accident had taken place on a Highway, where vehicles would normally move at high speed.
In the case on hand, accident had taken place within city limits. The claimant was crossing road near a junction. The rider of offending vehicle on approaching junction should have reduced speed of vehicle. The rider of vehicle owed a duty towards safety of pedestrians. The claimant had crossed a major portion of road and he was few feet away from footpath. Therefore, Tribunal was not justified in holding claimant guilty of contributory negligence to extent of 30%. The claimant had failed to observe vehicles plying on the road before crossing road. Therefore, I hold that claimant was guilty of contributory negligence to extent of 15% and rider of offending vehicle to extent of 85%. 5
7. The claimant had suffered fractures of both bones of left lower limb. The claimant was aged about 30 years at the time of accident. The Tribunal has awarded compensation of Rs.1,55,000/- under following heads:-
I. Pain and Sufferings : Rs. 30,000/-
II. Medical Expenses : Rs. 71,000/-
III. Loss of earning during
Laid up period : Rs. 9,000/-
IV. Towards disability : Rs. 20,000/-
V. Loss of amenities : Rs. 15,000/-
VI. Future medical expenses : Rs. 10,000/-
Total Amount : Rs.1,55,000/-
8. The claimant was working as a Salesman. His job involves movement from place to place. The Medical Officer has assessed permanent physical disability at 16% of left lower limb. The Tribunal has determined income of claimant at Rs.4,500/- per month. The claimant had suffered 6 fractures of both bones of left lower limb. The residual effects of fractures will have impact on his earning capacity. Therefore, I determine permanent physical disability of whole body at 8%. Thus, claimant will be entitled to compensation of Rs.73,440/- (Rs.4,500/- x 12 x 17 x 0.08) under the head "loss of earning capacity and loss of future earnings". This amount is in substitution of compensation of Rs.20,000/- awarded by Tribunal towards "disability". The compensation awarded by Tribunal under the head "loss of amenities & enjoyment of life" is enhanced to Rs.25,000/-.
9. Thus, compensation awarded by Tribunal is modified as follows:-
I. Pain & suffering : Rs.30,000/-
II. Medical Expenses : Rs.71,000/-
III. Loss of earnings during
treatment period : Rs. 9,000/-
IV. Loss of earning capacity
& loss of future Earnings : Rs.73,440/-
7
V. Loss of amenities &
enjoyment of life : Rs.25,000/-
VI. Future medical expenses : Rs.10,000/-
Total compensation : Rs.2,18,440/-
In the discussion made supra, I have held that claimant was guilty of contributory negligence to extent of 15%. Therefore, claimant is entitled to compensation of Rs.1,85,674/-.
10. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned award is modified. The claimant is entitled to compensation of Rs.1,85,674/- with interest at 6% per annum from the date of petition till the date of deposit. The impugned award as it relates to payment and investment is confirmed.
Sd/-
JUDGE SNN