Karnataka High Court
Ravikumar @ Ravikumar Poddar vs Oriental Insurance Company Ltd on 12 August, 2024
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NC: 2024:KHC:32216
MFA No. 7540 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.7540 OF 2016 (MV-I)
BETWEEN:
1. RAVIKUMAR @ RAVIKUMAR PODDAR,
S/O DHAMARAO PODDAR,
AGED ABOUT 33 YEARS
No.46, 3RD CROSS, 3RD MAIN,
KIRLOSKAR COLONY,
BANGALORE - 560 086.
ALSO AT GAYATHRINILAYA,
PLOT No.29, JANATHA LAYOUT,
S.B. TEMPLE ROAD,
GULBARGA-585101.
...APPELLANT
(BY SRI R.H.DESHPANDE, ADVOCATE)
Digitally signed by
PRAJWAL A AND:
Location: HIGH COURT
OF KARNATAKA
1. ORIENTAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
M.G.ROAD, BANGALORE - 560 001.
2. BASAVARAJ M.PATIL,
S/O MALLANNA,
PLOT No.2-909/69,
CHINDE LAYOUT,
SADAM ROAD,
SWASTIKNAGAR,
KALBURGI-585104.
...RESPONDENTS
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NC: 2024:KHC:32216
MFA No. 7540 of 2016
(BY SRI. K. LAKSHMI NARASAPA, ADVOCATE FOR
SRI. A.M.VENKATESH, ADVOCATE FOR R1,
VIDE COURT ORDER DATED 03.01.2024,
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.08.2016
PASSED IN MVC NO.3338/2015 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM,
MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the judgment and award dated 05.08.2016 passed in M.V.C.No.3338/2015 by the IX Additional Small Causes and Additional MACT, Bengaluru ('the Tribunal' for short) seeking enhancement of compensation and also questioning the liability fastened against the owner of the motorcycle.
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
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NC: 2024:KHC:32216 MFA No. 7540 of 2016
3. Brief facts of the case are, on 22.02.2015 at about 00.45 a.m., the petitioner was travelling as a pillion rider in the motorcycle bearing No.KA-32-S-215 rided by respondent No.2 near Jayanthi Hotel, K.B. Junction of Vatal Nagaraj Road at Bengaluru City, the respondent No.2 hit the motorcycle to the road median, due to which the petitioner fell down and sustained head injuries. He was treated at Suguna Hospital at Bengaluru and Chirayu Hospital at Kalaburagi for several days. Seeking compensation, the petitioner has approached the Tribunal. The claim was opposed by the Insurance Company. The Tribunal after considering the evidence and on hearing both the parties, by the impugned judgment awarded the following compensation at interest at 9% per annum and fastened the liability against the owner of the motorcycle:
1. Pain and sufferings Rs. 50,000/-
2. Loss of income during laid up Rs. 20,000/-
period
3. Actual medical expenses Rs. 1,07,382/-
4. Conveyance Rs. 3,000/-
5. Attendant charges Rs. 3,000/-
6. Food, nourishment and diet Rs. 5,000/-
charges Total Rs. 1,88,382/-
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NC: 2024:KHC:32216 MFA No. 7540 of 2016 Pleading inadequacy and seeking enhancement of compensation and challenging the liability fastened against the owner, the petitioner is before this Court.
4. Heard Sri R.H. Deshpande, learned counsel for the petitioner and Sri K. Lakshmi Narasappa, learned counsel for Sri A.M. Venkatesh, learned counsel for respondent No.1 Insurance Company.
5. It is contended by learned counsel for the petitioner that for the reason of the motorcycle there were three riders, the Tribunal fastened the liability against the owner. At the time of the accident, the rider of the motorcycle was holding valid driving licence and policy of insurance was in force and hence the Insurance Company has to pay the compensation. The compensation assessed is also on the lower side and sought for enhancement of compensation.
6. Per contra, learned counsel for the Insurance Company contended that in a public road, respondent No.2 carried the extra pillion rider which was the cause for the accident. The Tribunal considered all these aspects and -5- NC: 2024:KHC:32216 MFA No. 7540 of 2016 attributed negligence on the part of the rider and the owner of the motorcycle has to pay the compensation. The petitioner being the part of trible riding, he has also contributed to the accident and hence contributory negligence has to be attributed equally against the petitioner. It is further contended that the Tribunal has awarded interest at 9% per annum which has to be reduced to 6% per annum.
7. I have given my anxious consideration to the arguments advanced by learned counsel for both the parties and perused the material on record.
8. The material on record show that on the early morning of 22.02.2015, the petitioner and respondent No.2 along with another rider were travelling in the motorcycle in question and the rider hit against the road median due to which they fell down, the petitioner sustained head injury and was under hospitalization. The prosecution papers attribute actionable negligence against the rider of the motorcycle and he has to been prosecuted. Hence, the material on record goes to explain that the petitioner, as a -6- NC: 2024:KHC:32216 MFA No. 7540 of 2016 pillion rider of the motorcycle, sustained the head injury and as a victim of the accident, he is entitled to claim compensation.
9. The Tribunal has not awarded any compensation towards loss of amenities and discomforts. The injury has certainly caused discomfort and loss of amenities to the petitioner. The Tribunal has not given any reason as to why compensation was not awarded under loss of amenities and discomfort. Hence, a sum of Rs.30,000/- is to be compensated as loss of amenities and discomfort. No reason to enhance the compensation which was considered and assessed by the Tribunal. Thus, the petitioner is entitled to total compensation of Rs.2,18,282/- instead of Rs.1,88,382/-, thereby enhancement of Rs.30,000/-. It is the just compensation the petitioner is entitled to in the facts and circumstances of the case.
10. As regarding liability is concerned, the Tribunal attributed the complete negligence on the part of the petitioner and for this reason, the rider of the motorcycle has been prosecuted. It is very astonishing that the -7- NC: 2024:KHC:32216 MFA No. 7540 of 2016 Tribunal fastened the complete liability against the owner of the vehicle for carrying two pillion riders. The evidence on record clearly indicate that triple riding also contributed to accident to certain extent and the petitioner being one of the triple rider, has to be attributed negligence of 20%. Insofar as remaining 80% is concerned, for actionable negligence of the rider of the motorcycle, who was holding valid driving licence and the policy of insurance was in force, the Insurance Company has to indemnify the insured. Hence, the order of the Tribunal requires modification to that extent.
11. As regarding rate of interest is concerned, it is contended that the Insurance Company has no occasion to challenge the rate of interest, as no liability was fastened against it. However, the Tribunal has already exercised its discretion and it is not proper to interfere in it. In so far enhanced compensation i.e., Rs.24,000/- (80% of Rs.30,000/-) rate of interest shall be 6% per annum.
12. In view of above discussion, appeal merits consideration, in the result, the following: -8-
NC: 2024:KHC:32216 MFA No. 7540 of 2016 ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award is modified.
(iii) The petitioner is entitled to Rs.1,74,705/-
i.e., 80% of the total compensation of Rs.2,18,382/- together with interest at 9% per annum on Rs.1,50,705/- and 6% on Rs.24,000/- from the date of petition till deposit.
(iv) The Insurance Company is directed to deposit the said compensation amount with interest within eight weeks from the date of receipt of the certified copy of this judgment.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE MD List No.: 1 Sl No.: 40