Back
2020 Supreme(Kar) 385
IN THE HIGH COURT OF KARNATAKA
H.T. Narendra Prasad, J.
E. Raghunatha - Appellant
Versus
T.H. Shivakumar And Others - Respondents
MFA No. 1253/2015 (MV)
Decided On : 20-01-2020
Mohan S., Advocate, for the Appellant; T.R. Rangaswamy and B. Pradeep, Advocate, for the Respondent
The main legal point established in the judgment is the confirmation of contributory negligence, the liability of the Insurance Company to pay compensation, and the assessment and enhancement of the claimant's income and compensation.
Headnote:
Negligence - Road Traffic Accident - Contributory Negligence, Liability, Quantum
Fact of the Case:
The claimant was injured in a road traffic accident and filed a claim petition before the Tribunal. The Tribunal granted compensation of Rs. 2,16,811/- with interest at 6% p.a. after deducting 50% negligence on the part of the claimant and fastened liability on the owner of the offending vehicle. The claimant appealed the judgment and award.
Finding of the Court:
The Tribunal's finding of contributory negligence on the part of the claimant as well as the driver of the JCB at the rate of 50% each is confirmed. The Insurance Company is held liable to pay compensation to the claimant with liberty to recover the same from the owner of the offending vehicle. The claimant's income is enhanced from Rs. 3,500/- to Rs. 6,500/- per month. The compensation awarded by the Tribunal is enhanced under various heads.
Issues: Contributory negligence, Liability of Insurance Company, Assessment of claimant's income, Quantum of compensation
Ratio Decidendi: The court confirmed the finding of contributory negligence and held the Insurance Company liable to pay compensation with liberty to recover the same from the owner of the offending vehicle. The court also enhanced the claimant's assessed income and the compensation awarded by the Tribunal under various heads.
Final Decision: The appeal is partly allowed. The judgment and award of the Tribunal stands modified. The claimant is entitled to receive compensation of Rs. 3,31,611 from the Insurance Company with interest at 6% per annum.
JUDGMENT
H.T. Narendra Prasad, J. - This appeal is filed by the claimant challenging the judgment and award dated 18.12.2014 passed by the Court of Fast Track Court, Tumkur in MVC 1257/2011.
2. Brief facts of the case:
On 30.08.2011 at about 7.30 p.m. the claimant was proceeding on his motor bike Yamaha bearing No. CTR-2875 from Hanumanthapura to his village Vaddarahalli on NH4 service road near RR Restaurant on the side of the road and at that point of time, one JCB bearing No. KA-06-M-8389 came from Satyamangala side towards Hanumanthapura in a rash and negligent manner and dashed against the petitioner, causing the accident. As a result of the accident, the claimants right leg was crushed and broken and the hip was dislocated and he fell down on the road with heavy bleeding, sustaining multiple fractures and was immediately shifted to Aditya Orthopedic and Trauma Centre, Tumkur and was admitted as inpatient and the crushed right leg was amputed and dislocated hip was operated and he was in patient for about 30 days. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW-1, and Dr. T.V. Tyagaraj, as PW-2, and submitted 71 documents. On the other hand, the Insurance Company examined one witness as RW-1 and produced 1 document. After appreciation of the evidence, the Tribunal granted compensation of Rs. 2,16,811/- with interest at 6% p.a. after deducting 50% negligence on the part of the claimant and fastened liability on the owner of the offending vehicle. Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the claimant has raised the following contentions:
Firstly, at the time of accident, the claimant was traveling on the left side of the road cautiously, but the driver of the JCB came in a rash and negligent and caused accident. Therefore, the Tribunal is not justified in holding contributory negligence on the part of the claimant and driver of the JCB at the rate of 50% each.
Secondly, the Division Bench of this Court in the case of Hanamareddi v. Govindaraddi S Shindal reported in 2019 Supreme (Kar) 613 in a similar circumstances has held that the Insurance Company is liable to pay compensation with liberty to recover the same from the owner of the offending vehicle.
Thirdly, the claimant claims that he was doing agricultural work and earning Rs. 8,000/- per month, but the Tribunal has assessed the income of the claimant as merely as Rs. 3,500/- p.m.
Fourthly, PW-2 has deposed that the claimant has suffered 100% disability to the right leg and 50% disability whole body. But the Tribunal has taken the whole body disability at 34% while calculating the loss of future income.
Fifthly, the compensation awarded by the Tribunal under the head of loss of amenities is also on the lower side.
Hence, the learned counsel for the claimant prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company has raised the following counter-contentions:
Firstly, the Tribunal after verifying the records has rightly held that the accident has occurred due to contributory negligence on the part of both the claimant as well as the driver of the JCB.
Secondly, the driver of the JCB was not having valid driving licence to drive the HGV and he was possessing licence only to drive LMV. Therefore, the Tribunal has rightly fastened the liability on the owner of the offending vehicle.
Thirdly, even though the claimant claims that he was an agriculturist and earning Rs. 8,000/- per month, he has not produced any document to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.
Fourthly, the compensation awarded by the Tribunal is just and proper.
Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties. Perused the records.
6. It is not in dispute that the claimant had sustained
