Karnataka High Court
Master Vivek K S vs Sri Gajendra C N on 2 July, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF JULY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.No.2601/2013 C/W M.F.A.Nos.1411/2013,
1410/2013, 1366/2013, 2600/2013 & 2602/2013 (MV)
MFA.No.2601/2013
BETWEEN:
MASTER VIVEK K S
S/O SOMACHARI, 9 YEARS
R/AT NO.285, KATTERI VILLAGE
PANDAVAPURA TQ, MANDYA DIST. - 05
SINCE MINOR, REP. BY NATURAL GUARDIAN
MOTHER SMT. MANJULA
W/O SOMACHARI, PRESENTLY R/AT NO.254
KUMBALAGUDU VILLAGE AND POST
KENGERI HOBLI, BANGALORE - 78. ... APPELLANT
(BY SRI P MAHADEVA SWAMY, ADV.)
AND:
1. SRI GAJENDRA C N
S/O NINGEGOWDA
NO.2459/5A, 2ND CROSS
2ND MAIN, VINAYAKANAGAR
MYSORE - 570 001
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
RO NO.31, TBR TOWERS
1ST CROSS, NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 02. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2; R1 - NOTICE DISPENSED
WITH V.C.O. DATED 29.10.2013)
2
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 23.11.2012
PASSED IN MVC NO.7857/2011 ON THE FILE OF XXII
ADDITIONAL SMALL CAUSES JUDGE & MEMBER MACT AT
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA.No.1411/2013
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL INSURANCE CO. LTD.
REGIONAL OFFICE, GROUND FLOOR
NO.31, TBR TOWER
1ST CROSS, NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 560 024
BY ITS MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADV.)
AND:
1. K S VIVEK
S/O SOMACHARI, 8 YEARS
R/AT NO.285, KATTERI VILLAGE
PANDAVAPURA, MANDYA DISTRICT
SINCE MINOR, REP. BY HIS
NATURAL GUARDIAN/MOTHER SMT. MANJULA
PRESENTLY R/AT NO.254
KUMBALGODU VILLAGE AND POST
KENGERI HOBLI, BANGALORE - 560 061
2. SRI GAJENDRA C N
S/O NINGEGOWDA, MAJOR
NO. 2459/5A, 2ND CROSS, 2ND MAIN
VINAYAKANAGARA, MYSORE - 01. ... RESPONDENTS
(BY SRI P MAHADEVASWAMY, ADV. FOR R1; R2 - NOTICE
DISPENSED WITH V.C.O. DATED 29.10.2013)
3
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 23.11.2012
PASSED IN MVC NO.7857/2011 ON THE FILE OF XXII
ADDITIONAL SMALL CAUSES JUDGE & MEMBER MACT AT
BANGALORE, AWARDING COMPENSATION WITH INTEREST &
ETC.
MFA.No.1410/2013
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
REGIONAL OFFICE, GROUND FLOOR
NO.31, TBR TOWER, 1ST CROSS
NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 560 024
BY ITS MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADV.)
AND:
1. SMT. MANJULA
W/O SOMACHARI, 36 YEARS
R/AT NO.285, KATTERI VILLAGE
PANDAVAPURA, MANDYA DISTRICT
PRESENTLY R/AT NO.254
KUMBALGODU VILLAGE AND POST
KENGERI HOBLI, BANGALORE - 560 061
2. SRI GAJENDRA C N
S/O NINGEGOWDA, MAJOR
NO.2459/5A, 2ND CROSS, 2ND MAIN
VINAYAKANAGARA
MYSORE - 01. ... RESPONDENTS
(BY SRI P MAHADEVASWAMY, ADV. FOR R1; R2 - NOTICE
DISPENSED WITH V.C.O. DATED 12.02.2013)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 23.11.2012
PASSED IN MVC NO.7856/2011 ON THE FILE OF XXII
ADDITIONAL SMALL CAUSES JUDGE & MEMBER MACT AT
BANGALORE, AWARDING COMPENSATION WITH INTEREST &
ETC.
4
MFA.No.1366/2013
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
REGIONAL OFFICE, GROUND FLOOR
NO.31, TBR TOWER, 1ST CROSS
NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 560 024
BY ITS MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADV.)
AND:
1. SRI SHANKARACHARI
S/O NARAYANACHARI, 32 YEARS
R/O NO.285, KATTERI VILLAGE
PANDAVAPURA, MANDYA DISTRICT
PRESENTLY R/AT NO.254
KUMBALGODU VILLAGE AND POST
KENGERI HOBLI, BANGALORE.
2. SRI GAJENDRA C N
S/O NINGEGOWDA, MAJOR
NO.2459/5A, 2ND CROSS, 2ND MAIN
VINAYAKANAGARA, MYSORE - 570 001. ... RESPONDENTS
(BY SRI P MAHADEVASWAMY, ADV. FOR R1; R2 - NOTICE
DISPENSED WITH V.C.O. DATED 11.02.2013)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 15.11.2012
PASSED IN MVC NO.8067/2011 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM &
MEMBER, MACT-VII AT BANGALORE, AWARDING
COMPENSATION WITH INTEREST & ETC.
MFA.No.2600/2013
BETWEEN:
SMT. MANJULA
W/O SOMACHARI, 35 YEARS
R/AT NO.285, KATTERI VILLAGE
PANDAVAPURA TQ, MANDYA - 05
5
PRESENTLY R/AT NO.254
KUMBALAGUDU VILLAGE AND POST
KENGERI HOBLI, BANGALORE - 78. ... APPELLANT
(BY SRI P MAHADEVA SWAMY, ADV.)
AND:
1. SRI GAJENDRA C N
S/O NINGEGOWDA
NO.2459/5A, 2ND CROSS, 2ND MAIN
VINAYAKANAGAR, MYSORE - 570 001
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
R.O.NO.31, TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 02. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2; R1 - NOTICE DISPENSED
WITH V.C.O. DATED 29.10.2013)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 23.11.2012
PASSED IN MVC NO.7856/2011 ON THE FILE OF XXII
ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL
CAUSES & MEMBER MACT AT BANGALORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA.No.2602/2013
BETWEEN:
SRI SHANKARACHARI
S/O NARAYANACHARI, 31 YEARS
R/AT NO.285, KATTERI VILLAGE
PANDAVAPURA, MANDYA - 05
PRESENTLY R/AT NO.254
KUMBALAGUDU VILLAGE AND POST
KENGERI HOBLI, BANGALORE - 78. ... APPELLANT
(BY SRI P MAHADEVA SWAMY, ADV.)
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AND:
1. SRI GAJENDRA C N
S/O NINGEGOWDA
NO.2459/5A, 2ND CROSS
2ND MAIN, VINAYAKANAGAR
MYSORE - 570 001
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
R/O NO.31, TBR TOWERS
1ST CROSS, NEW MISSION ROAD
ADJACENT TO JAIN COLLEGE
BANGALORE - 02. ... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R2; R1 - NOTICE DISPENSED
WITH V.C.O. DATED 29.10.2013)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 15.11.2012
PASSED IN MVC NO.8067/2011 ON THE FILE OF IX
ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT
OF SMALL CAUSES & MEMBER, MACT-VII AT 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 Nos.1366/2013, 1410/2013 & 1411/2013 are filed by Insurance Company to reduce compensation awarded to claimants in MVC Nos.8067/2011, 7856/2011 7 and 7857/2011 on the ground that rider of motorcycle was guilty of contributory negligence and compensation awarded by Tribunal under several heads is excessive. MFA Nos.2600/2013, 2601/2013 & 2602/2013 are filed by claimants in MVC No.7856/2011, MVC No.7857/2011 and MVC No.8067/2011 for enhancement of compensation.
2. At the outset, it is necessary to state that claimant in MVC No.8067/2011 namely Shankarachari is the husband of claimant in MVC No.7856/2011 namely Smt.Manjula and father of claimant in MVC No.7857/2011.
3. It is the case of claimants that on 28.09.2011 at about 12 p.m., claimant in MVC No.8067/2011 namely Shankarachari was riding motorcycle bearing No.KA-11-V- 5869, his wife namely Manjula (claimant in MVC No.7856/2011) and his son namely K.S.Vivek aged about 8 years (claimant in MVC No.7857/2011) were pillion riders. When said Shankarachari was proceeding on left side of Mysore-K.R.Pet Road, near K.R.Sagar Cauvery Bridge, tipper lorry bearing No.KA-09-B-2278 came at a high speed from 8 opposite direction and dashed against motorcycle, as a result, rider and pillion riders suffered injuries. The rider of motorcycle has given evidence and produced medical records.
4. The learned counsel for Insurance Company would submit that rider of motorcycle was carrying two pillion riders in motorcycle. Therefore, he had no control over motorcycle and he had lost control over motorcycle. In the circumstances, Tribunal should have held rider of motorcycle guilty of contributory negligence.
5. The learned counsel for Insurance Company has relied on a Division Bench judgment of this court, reported in 2005 ACJ 1359 (in the case of P.S.Somaiah & another Vs. Director, Bangalore Dairy & Others) to contend that rider of motorcycle was guilty of contributory negligence because he was carrying two pillion riders.
6. The learned counsel for claimants, relying on judgment of Madhya Pradesh High Court, reported in AIR 9 2008 MADHYA PRADESH 18 (in the case of Devisingh Vs. Vikramsingh & Others) would submit that rider of motorcycle carrying two pillion riders is in violation of section 128 of the Motor Vehicles Act, 1988 (for short, 'the Act'), however such violation per se does not amount to contributory negligence on the part of rider of motorcycle unless casual connection between cause of accident and violation of section 128 of the Act is established by contending party.
In the case on hand, driver of tipper lorry bearing No. KA-09-B-2278 was not examined before Tribunal to prove that rider of motorcycle had lost balance because there were two pillion riders. Above all, I-pillion rider was the wife and II-pillion rider was the son of rider, aged about 8 years at the time of accident. In the circumstances, submission of learned counsel for Insurance Company that rider of motorcycle did not have proper balance and control over motorcycle due to presence of two pillion riders cannot be accepted.
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7. In the decision reported in 2005 ACJ 1359 (in the case of P.S.Somaiah & another Vs. Director, Bangalore Dairy & Others) apart from rider, there were three grown up children as pillion riders and rider of motorcycle while overtaking a milk tanker had gone to wrong side of road and collided with a van coming from opposite direction. In the circumstances, a Division Bench of this court has held that rider of motorcycle was guilty of contributory negligence.
In the case on hand, I-pillion rider was the wife and II- pillion rider was the son of rider of motorcycle, aged about 8 years at the time of accident. Therefore, the evidence on record does not indicate that there was casual connection between violation of section 128 of the Act and cause of accident.
Regarding quantum of compensation:
8. The claimant in MVC No.8067/2011 had suffered displaced fracture of greater trochanter of right femur. The fracture was reduced by conservative treatment in JSS Hospital at Mysore. The claimant has not examined the doctor who treated him, however, he has examined 11 Dr.S.Ramachandra, Orthopaedic Surgeon of Bowring & Lady Curzon Hospital at Bangalore, who has assessed permanent physical disability of claimant at 8%.
9. The Tribunal has awarded compensation of Rs.1,19,500/- under the following heads:-
I. Pain & Suffering : Rs.15,000/-
II. Medical expenses : Rs.17,600/-
III. Loss of earnings during
Period of treatment : Rs.5,000/-
IV. Future loss of Income : Rs.76,800/-
V. Conveyance, nourishment &
attendant charges : Rs.5,000/-
Total : Rs.1,19,400/-
Rounded Off : Rs.1,19,500/-
10. After going through evidence and impugned judgment, compensation awarded by Tribunal, I find compensation awarded towards "pain & suffering" is inadequate. The 12 Tribunal has not awarded compensation towards "loss of amenities & enjoyment of life". The claimant was aged about 30 years at the time of accident. He suffers from partial permanent disability of right lower limb. Therefore, he has to suffer pain and inconvenience during normal activities of life. Therefore, I award additional compensation of Rs.15,000/- towards "pain & suffering" and compensation of Rs.30,000/- towards "loss of amenities & enjoyment of life. Thus, claimant in MVC No.8067/2011 is entitled to additional compensation of Rs.45,000/- and total compensation of Rs.1,64,500/-.
11. The claimant in MVC No.7856/2011 namely Smt.Manjula had suffered type III open fracture of both bones of right leg. She was treated in JSS Hospital at Mysore. She was operated for reduction of fractures. She underwent wound debridement for external injuries. She was an inpatient for a period of one month in JSS Hospital at Mysore.
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12. The Tribunal has awarded compensation of Rs.3,77,180/- to claimant in MVC No.7856/2011 under the following heads:-
I. Pain & Sufferings : Rs.75,000/-
II. Medical expenses, conveyance &
Nourishment charges : Rs.1,35,000/-
III. Loss of earnings during the
Period of treatment : Rs.13,500/-
IV. Future loss of income : Rs.1,03,680/-
V. Future Medical expenses : Rs.35,000/-
VI. Loss of amenities & enjoyment of life: Rs.15,000/-
Total : Rs.3,77,180/-
13. On hearing the learned counsel for parties and after going through the impugned judgment, I find Tribunal has not awarded adequate compensation towards "loss of earnings during laid up period" and "loss of amenities & enjoyment of life". Therefore, I award additional compensation of Rs.25,000/- towards "loss of amenities & 14 enjoyment of life" and additional compensation of Rs.10,000/- towards "loss of earnings during laid up period". Thus, claimant in MVC No.7856/2011 is entitled to additional compensation of Rs.35,000/- and total compensation of Rs.4,12,180/-.
14. The claimant in MVC No.7857/2011 namely Master K.S.Vivek aged about 8 years at the time of accident had suffered following injuries:-
I. Fracture of shaft of left femur
II. Swelling and pain over left thigh.
He was treated in JSS Hospital at Mysore. He was operated for reduction of fracture.
15. The Tribunal has awarded compensation of Rs.1,50,000/- to claimant in MVC No.7857/2011 under the following heads:-
I. Pain & Suffering : Rs.25,000/-
II. Medical expenses, conveyance &
Nourishment charges : Rs.40,000/-
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III. Disability : Rs.50,000/-
IV. Future medical expenses : Rs.20,000/-
V. Loss of educational prospects : Rs.15,000/-
Total : Rs.1,50,000/-
16. On hearing the learned counsel for parties and after going through the evidence and impugned judgment, I find compensation awarded by Tribunal towards "loss of amenities & enjoyment of life" (wrongly shown as "disability" in the impugned award) is inadequate.
17. The claimant was aged about 8 years at the time of accident. The injuries suffered in accident and residual effects of injuries will have bearing on his future and may interfere with his education. The claimant has been deprived of his pleasure of childhood and he cannot take part in sports. Therefore, I award additional compensation of Rs.35,000/- towards "loss of amenities & enjoyment of life". Thus, claimant in MVC No.7857/2011 is entitled to total compensation of Rs.1,85,000/-.
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18. In the result, I pass the following:-
ORDER MFA No.1366/2013, MFA No.1410/2013 & MFA No.1411/2013 filed by Insurance Company are dismissed. MFA No.2600/2013, MFA No.2601/2013 & MFA No.2602/2013 filed by claimants in MVC No.7856/2011, MVC No.7857/2011 and MVC No.8067/2011 are accepted in part. Compensation of Rs.1,19,500/- awarded by Tribunal to claimant in MVC No.8067/2011 is enhanced to Rs.1,64,500/-. Compensation of Rs.3,77,180/- awarded by Tribunal to claimant in MVC No.7856/2011 is enhanced to Rs.4,12,180/-. Compensation of Rs.1,50,000/- awarded by Tribunal to claimant in MVC No.7857/2011 is enhanced to Rs.1,85,000/-. The amount deposited by Insurance Company shall be transferred to Tribunal.
Sd/-
JUDGE SNN