Karnataka High Court
Sri. Subramani vs United India on 27 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.7918/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7918/2018 (MV-I)
BETWEEN
SRI. SUBRAMANI
S/O LATE PALANI
RESIDING AT
NO.38/15, 10TH CROSS
NEW BUILDING
MARIYAPPANAPALYA
SRIRAMPURA
BENGALURU-560021.
...APPELLANT
(BY SRI. GIRIMALLAIAH, ADVOCATE, PHYSICALY
HEARING)
AND
1. UNITED INDIA
INSURANCE COMPANY LTD.,
REGIONAL OFFICE, T P HUB
KRISHI BHAVEN, 6TH FLOOR
HUDSON CIRCLE
NRUPATHUNGA ROAD
BANGALORE-560001.
2. SRI DHANANJAY M N
S/O MADAIAH
MAJOR
(AGE NOT KNOWN TO THE APPELLANT)
NO.1/C, 60, MALATHAHALLI
BANGALORE-560026
...RESPONDENTS
2 MFA NO.7918/2018
(BY SRI. S.KRISHNA KISHORE, ADVOCATE FOR R1
PHYSICALY HEARING, V/O DTD:8/10/2021 SERVICE OF
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 23/07/2018, PASSED
IN MVC NO.951/2016, ON THE FILE OF THE X ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH-
16), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant, challenging the judgment and award dated 23.07.2018, passed in M.V.C.No.951/2016, on the file of the Small Causes And Motor Accident Claims Tribunal, Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity) for seeking enhancement of the compensation, as well as questioning 30% negligence fastened on the claimant.
3 MFA NO.7918/2018
Brief facts:
2. That on 27.12.2015, at about 6.10 p.m., the claimant was crossing M.K.K. Road near Mairyappanapalya metro station, at that time, an auto rickshaw bearing registration No.KA-02-AD-7403 driven by its driver in a rash and negligent manner dashed against the claimant. Due to the impact, the claimant sustained severe injuries and was admitted to K.C. General Hospital and was treated for the said injuries.
3. Hence, a claim petition was filed by the appellant-claimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.2,28,650/-, along with interest at 9% per annum from the date of petition till the date of realisation.4 MFA NO.7918/2018
4. Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for respondent No.1 - insurance company and perused the materials on record.
5. The learned counsel for the appellant-
claimant submitted that the claimant aged 63 years was crossing the cross and when he was about to cross the road completely and only remaining 6 feet distance remaining to reach the edge of the road, at that moment, the offending autorickshaw came in a rash and negligent manner and hit the claimant and the claimant had sustained injuries and therefore submitted that 30% negligence fastened by the Tribunal is not correct.
6. On the other hand, the learned counsel for the respondent - insurance company submitted that the place where the pedestrian crossed the road was not the zebra crossing. Therefore, it amounts to 5 MFA NO.7918/2018 negligence. Therefore, submitted that the Tribunal was justified in passing the judgment and award. Further, submitted that the compensation awarded is just and appropriate. Therefore, prays to dismiss the appeal.
REGARDING RASH AND NEGLIGENCE :
7. It is an undisputed fact that the auto rickshaw had hit the claimant while crossing the road. The Tribunal held that since the autorickshaw was coming on correct direction and the claimant was not crossing the road in earmark / zebra crossing for the pedestrian and therefore the claimant had also contributed 30% negligence. Hence, it is held that the claimant had contributed 30% negligence. But upon considering the evidence on record, the complaint, FIR and charge-sheet it is seen that the entire negligence is on the part of the driver of the autorickshaw. 6 MFA NO.7918/2018
8. Exhibit-P4 is the spot sketch and Exhibit-P3 is the spot panchanama. Upon considering both these documents, it is proved that the claimant was crossing the road from South to North direction. The total width of the road is 68 feet, i.e., either side of the median the width of the road is 34 feet. The claimant had crossed the median of the road and further crossed 28 feet width and was only remaining 6 feet to reach the edge of the road on the Northern side. At that time, the offending autorickshaw hit the claimant.
9. Upon considering these facts and scenario of the accident, it is seen that the claimant had almost crossed the road and therefore remaining only six feet distance remaining to reach the edge of the road, at that moment, the driver of the Autorickshaw had taken the autorickshaw cautiously then the accident would have been avoided. Further, upon considering the place of the accident, it is seen that the 7 MFA NO.7918/2018 Autorickshaw driver was intended to take the Autorickshaw to left side. Therefore, if the autorickshaw driver would have gone straight or would have taken left turn, then the accident would have been avoided. But without doing these two things, the driver has dashed on the pedestrian. Therefore, considering the evidence on record, it is seen that the Tribunal has erroneously fastened 30% negligence on the claimant. The claimant being a pedestrian and coolie quite naturally was crossing the road, even though there was no zebra crossing, but the circumstances arises to cross the road, which cannot be found fault with always. Particularly, in the present case, the claimant cannot be found fault with. Therefore, the finding of the Tribunal that the claimant had contributed 30% negligence is set-aside and the driver of the autorickshaw is held 100% negligent in causing the accident.
8 MFA NO.7918/2018REGARDING QUANTUM OF COMPENSATION:
10. The compensation awarded by the Tribunal is as follows:
Pain and Sufferings : Rs. 40,000/-
Attendant Charges, Extra : Rs. 21,000/- Nutritious Food and Conveyance Expenses Loss of income during laid up : Rs. 21,000/-
period
Medical Expenses : Rs. 47,850/-
Loss of future income due to : Rs. 58,800/-
permanent disability
Loss of future amenities and : Rs. 30,000/-
happiness
Future Medical Expenses : Rs. 10,000/-
TOTAL : Rs. 2,28,650/-
11. As per the Wound Certificate at Exhibit-P7, Discharge Summary, Exhibit-P8, coupled with other documentary medical evidence, and the evidence of PW-2 Doctor, it is proved that the claimant was aged 63 years and had sustained injuries viz., open lacerated of 4 x 3 cm exposing fractured bone fragment, bleeding from the nose and abrasion of 3 x 2 cm and over left elbow. The claimant was working 9 MFA NO.7918/2018 as a Coolie. Therefore, considering this, the quantum of compensation awarded by the Tribunal under the head 'Pain and Sufferings, at Rs.40,000/-, is on lower side and hence a sum of Rs.60,000/- is awarded.
12. The compensation amount awarded by the Tribunal under the 'Medical Expenses' at Rs.47,850/- is per actual bills and receipts and the same is kept in tact.
13. The Tribunal had taken 10% disability to the whole-body and taken the notional income of the claimant at Rs.7,000/- per month. The claimant was aged 63 years and the accident has occurred during the year 2015. Therefore, as per Chart of income recognized by the Karnataka State Legal Services Committee, a sum of Rs.9,000/- is to be taken as notional monthly income of the claimant. The doctor had stated the claimant had suffered 36% permanent 10 MFA NO.7918/2018 disability to the left lower limb and 12% functional disability to the whole body. The criteria for calculating functional disability is elaborately discussed by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another1 Therefore, considering the principles laid down by the Hon'ble Supreme Court stated supra, and the injuries suffered by the appellant and the avocation of the appellant-
claimant being coolie, certainly the disability will affect his earning capacity. Accordingly, 12% permanent disability is taken to the whole-body. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another2 is '7'. Therefore, the compensation under the head 'Loss Of Dependency along with Loss of Future Prospects in Life' is recalculated and quantified as follows:
1
(2011) 1 SCC 343 11 MFA NO.7918/2018 Rs.9,000/- x 1,080 (12%) x 7 x 12 = Rs.90,720/-
14. The compensation awarded by the Tribunal under the head 'Attendant, Nourishment and Conveyance Charges' at Rs.21,000/-, is on lesser side and hence a sum of Rs.30,000/- is awarded under the said head.
15. The Tribunal has awarded compensation towards 'Loss Of Amenities' at Rs.30,000/-, which is on lower side and hence a sum of Rs.40,000/- is awarded under the said head.
16. In view of the accidental injuries, the claimant would have taken rest for atleast for a period of Six months. Therefore, by taking the notional income at Rs.9,000/- per month and calculating the laid up period for Four months, the claimant is entitled for a sum of Rs.54,000/- (Rs.9,000 x 6 months), 2 AIR 2009 SC 3104 12 MFA NO.7918/2018 under the head 'Loss Of Earning During Laid Up Period'.
17. The Tribunal has awarded compensation towards 'Future Medical Expenses' at Rs.10,000/-, which is on lower side and hence a sum of Rs.30,000/- is awarded under the said head.
18. Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:
Pain and Sufferings : Rs. 60,000/-
Attendant Charges, Extra : Rs. 30,000/- Nutritious Food and Conveyance Expenses Loss of income during laid up : Rs. 54,000/-
period
Medical Expenses : Rs. 47,850/-
Loss of future income due to : Rs. 90,720/-
permanent disability
(Rs.9,000 x 1080 (12%) x 7 x 12)
Loss of future amenities and : Rs. 40,000/-
happiness
Future Medical Expenses : Rs. 30,000/-
TOTAL : Rs. 3,52,570/-
13 MFA NO.7918/2018
19. Therefore, the appellant-claimant is
entitled for compensation of Rs.3,52,570/- as
against Rs.2,28,650/-. The appellant - claimant is entitled for an additional compensation of Rs.1,23,920/- (Rs.3,52,570 - Rs.2,28,650) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal.
20. Since this Court has already set-aside the finding of the Tribunal that the claimant has contributed 30% negligence. Therefore, the claimant is entitled for full compensation as stated above, without making any deduction. The respondent -
Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment. 14 MFA NO.7918/2018 REGARDING LIABILITY:
21. The Tribunal had fixed the liability on the owner of the autorickshaw, since the driver of the autorickshaw was not holding the Driving License as on the date of the accident. The second respondent -
owner of the autorickshaw has not appeared before the Tribunal and not contested the case and was placed exparte before the Tribunal. When the insurance company has taken the contention that the driver of the autorickshaw was not holding the Driving License, it was the burden cast on the second respondent - owner to prove that the driver was holding a valid Driving License. Therefore, the respondent - insurance company has raised a defence and has also successfully established the said defence. Hence, as per Section-149(1) of the M.V Act and also as per the principles laid down by the Hon'ble Supreme Court in the case Pappu And Others Vs. 15 MFA NO.7918/2018 Vinod Kumar Lamba And Another3 and also as per the judgment of this High Court in the case of New India Assurance Company Limited vs. Yellavva And Another 4, and also as per the Hon'ble Supreme Court the judgment in the case of National Insurance Company Limited Vs. Swaran Singh And Others 5, an order of pay and recovery is made.
22. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated
23.07.2018, passed in M.V.C.No.951/2016, on the file of the Small Causes And Motor Accident Claims Tribunal, Bengaluru, is modified to the aforesaid extent.
3 (2018) 3 SCC 208 4 2020 ACJ 2560 5 (20 04 ) 3 SCC 29 7 16 MFA NO.7918/2018 iii. The appellant - claimant is entitled for an additional compensation of Rs.1,23,920/- (Rs.3,52,570 - Rs.2,28,650) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal.
iv. The finding of the Tribunal that the claimant had contributed 30% negligence is set-aside and the driver of the autorickshaw is held 100% negligent in causing the accident.
v. Respondent No.1 - insurance company
shall pay the compensation to the
appellant/claimant, and thereafter recover the same from the owner of the offending vehicle - second respondent.
vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified 17 MFA NO.7918/2018 copy of the order passed by this Court forthwith without any delay.
vii. Draw award accordingly.
viii. No order as to costs.
Sd/-
JUDGE JJ