Karnataka High Court
Sri Mahesh K M vs Sri G Ashok on 10 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.2252 OF 2015 (MV)
BETWEEN:
Sri Mahesh K M
S/o Sri Mahadevappa
Age 31 years
Occ: Tailor
R/o No.137/7
Somasundara Palya
Hosur Road
Bengaluru-560 012.
...Appellant
(by Smt. Sunitha B H, Advocate for
Sri Suresh M, Latur, Advocate)
AND:
1. Sri G Ashok
S/o late Gopala
C/o E Krishnamurthy G P
Secretary, B/H Irrigation
Hospet
Bellary District-583 201.
2. The Regional Manager
National Insurance Co. Ltd
Shubharam Complex
M G Road
Bengaluru-560 001.
...Respondents
(by Sri Ravish Benni, Advocate for R2;
Notice to R1 is dispensed with)
2
This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act against the judgment and award
dated 17.07.2014 passed in MVC No.7447 of 2011 on the file
of the VIII Additional Senior Civil Judge and XXXIII ACMM
Member Motor Accident Claims Tribunal, Bengaluru, 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 appeal is preferred by the claimant against the judgment and award dated 17th July, 2014 passed in MVC No.7447 of 2011 by the VIII Additional Small causes Judge and the Motor Accident Claims Tribunal, Bengaluru (for short hereinafter referred to as 'Tribunal'), seeking enhancement of compensation.
2. For the sake of convenience, parties in this appeal are referred to with respect to their status before the Tribunal.
3. Facts in nutshell for the purpose of adjudication of this appeal are that, on 28th July, 2011 at about 1.10 pm, the claimant was crossing the road in front of Shanti Sagar Hotel and at that time, a car bearing registration No.KA-35/M-4099 being driven by its driver in a rash and negligent manner, 3 dashed to the claimant and as a result of the same, the claimant sustained grievous injuries. It is further averred in the claim petition that on account of the said accident, he was not able to continue his avocation as a tailor and therefore, he filed claim petition before the Tribunal seeking compensation.
4. On service of notice Respondent No.1 unrepresented and accordingly, placed ex-parte. Respondent No.2- Insurance Company entered appearance and filed detailed written statement contending that the claim made by the claimant is on the higher side and also stated that complaint has been lodged by the claimant after two days of the incident and accordingly sought for dismissal of the claim petition. On the basis of the pleadings on record, the Tribunal formulated issues for its consideration. In order to prove the claim petition, the claimant has examined three witnesses as PW1 to PW3 and produced twenty documents and the same were marked as Exhibits P1 to P20. On the other hand, no evidence has been adduced by the respondents. The Tribunal, after considering the material on record, by its judgment and award dated 17th July, 2014 allowed the claim petition in part and awarded compensation of Rs.1,24,800/-. 4 The Tribunal observed that the claimant has also contributed to an extent of 25% towards accident and deducting 25% of the amount from out of the total compensation awarded Rs.93,600/- with interest at the rate of 8% per annum from the date of petition till realisation. Being not satisfied with the compensation awarded by the Tribunal, the claimant has preferred this appeal, seeking enhancement of compensation.
5. I have heard Smt. Sunitha B.H. Advocate on behalf of Sri Suresh M. Latur for the appellant and Sri Ravish Benni, Advocate appearing for respondent No.2-Insurance Company.
6. Smt. Sunita, learned counsel appearing for the appellant-claimant argued that the finding recorded by the Tribunal fastening liability in an extent of 25% towards contributory negligence is without any basis and the same is required to be interfered with in this appeal. She further contended that the quantum of compensation arrived at by the Tribunal is on the lower side. She submits that considering the fact that the claimant has sustained disability to an extent of 6% to the whole body, the compensation awarded by the Tribunal under the head loss of future earning capacity is required to be modified in this appeal. 5
7. Per contra, Sri Ravish Benni, learned counsel appearing for the respondent-Insurance Company argued that the finding recorded by the Tribunal towards contributory negligence on the part of the claimant in an extent of 25% is just and proper and the same has been rightly appreciated by the Tribunal after considering Exhibit P4-spot sketch. Therefore, he contended that no interference be made insofar as fastening of liability is concerned. As regards quantum of compensation is concerned, he argued that the award made by the Tribunal is just and proper and does not warrant interference in this appeal. He further contended that the claimant was tailor by occupation and the Doctor has opined in his evidence that the injury sustained by the claimant do not come in the way of his occupation and therefore, the finding recorded by the Tribunal with regard to disability at 6% cannot be re-visited in this appeal and hence sought for dismissal of the appeal.
8. Having heard the learned counsel for the parties, I have perused the records. It is not in dispute that the claimant sustained injuries on account of road traffic accident on 28th July, 2011. Perusal of Exhibit P4-spot sketch, would 6 disclose that the clamant was crossing the road where there is no zebra crossing or pedestrian walk and that too he was crossing the road upon median in the Highway. Though the respondents have not adduced any evidence with regard to liability, however, the perusal of Exhibit P4 itself would be res ipsa loquitur where it shows that the claimant himself has invited accident by crossing the Highway on the median and therefore, the finding recorded by the Tribunal fastening liability in an extent of 25% on the claimant is just and proper and do not call for interference in this appeal. Learned counsel has placed reliance on the judgment of the Apex Court in the case of KIRAN v. SAJJAN SINGH AND OTHERS reported in 2014 ACJ 2550 and the Division Bench judgment of this court in the case of A. ANANDAN v. ABDUL AZEEZ AND OTHERS reported in 2004 ACJ 1091 wherein the facts of the case referred to above are distinct from the facts of the case on hand. In the present case, perusal of Exhibit P4-spot sketch itself would clearly establish the fact that the claimant was crossing the Highway through median and as such, invited the accident himself and therefore the judgments 7 referred to by the learned counsel appearing for the appellant cannot be made applicable to the case on hand.
9. Insofar as quantum of compensation is concerned, it is not in dispute that the claimant has sustained injuries as set out in the wound certificate produced at Annexure-P6. In order to prove that the injuries are grievous in nature, the claimant has examined the Doctor as PW2 who has deposed that on account of the injury sustained by the claimant, the disability suffered to the whole body would be to the tune of 6%, and the said deposition has to be accepted. Though the Doctor has deposed that the fracture of mandible will not come in the way of claimant discharging the work as a Tailor, however, taking into account the age of the claimant, who was 28 as on the date of accident, it is to be inferred that there shall be a chance of the claimant earning more than what he was earning at the time of accident. In that view of the matter, the submission made by the learned counsel appearing for the Insurance Company cannot be accepted. Though the claimant has asserted that he was earning Rs.9,500/- per month, no document is produced to substantiate the same. In the absence of producing any proof 8 regarding the income, it is useful to take the notional income. As per the Lok Adalat chart, with relevance to the accident of the year 2011, the notional income that is taken is Rs.6,500/- per month and the same is taken in this case also. As per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier would be 17. Accordingly, the claimant would be entitled for Rs.79,560/- (Rs.6,500/- x 12 x 17 x 6%) towards loss of future earning capacity due to disability. After appreciating the material on record, and considering the nature of injury sustained by the claimant as per Exhibits P6 and P8-discharge summary, I am of the considered opinion that the claimant is entitled for compensation of Rs.40,000/- towards pain and suffering; and Rs.40,000/- towards loss of amenities. Taking the monthly income of the claimant at Rs.6,500/- per month, the compensation towards loss of income during the laid up period would be Rs.19,500/- and the same is awarded. The compensation awarded by the Tribunal under medical expenses and future medical expenses, remain unaltered. In total, the claimant is entitled 9 for total compensation of Rs.2,33,860/- as against Rs.1,24,800/- awarded by the Tribunal. After deducting the amount of 25% towards the contributory negligence of the claimant, the compensation payable to the claimant, would be Rs.1,75,395/-. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realisation.
10. In the result, the appeal is allowed in part.
Sd/-
JUDGE lnn