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2022 Supreme(Online)(Kar) 32182
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.388 OF 2019 (MV)
BETWEEN:
IVAN D'SOUZA @
IVAN STANY D'SOUZA,
S/O MICHAEL D'SOUZA,
AGED 32 YEARS,
R/AT NEAR OLD FATHIMA CHURCH,
THANNIR BAVI, PANAMBUR POST,
MANGALURU,
D.K. DISTRICT - 575 006.
&APPELLANT
(BY SRI.RAVISHANKAR SHASTRY G., ADVOCATE)
AND:
1.
KUSHITH KUMAR,
S/O SEETHARAMA A,
ADULT,
R/AT ANUGRAHA TALLERY ROAD,
MULIHITHLU, MANGALURU,
D.K. DISTRICT - 575 012.
2.
NEW INDIA ASSURANCE CO. LTD.,
RAM BHAVAN COMPLEX,
II FLOOR, KODIALBAIL,
MANGALURU,
D.K. DISTRICT - 575 003.
REPRESENTED BY ITS MANAGER.
&RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER
DATED 01.04.2021)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 14.08.2018, PASSED IN MVC NO.1027/2017,
ON THE FILE OF THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MACT, D.K., MANGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION
THIS
DAY,
THE
COURT
DELIVERED
THE
FOLLOWING:
Based on the provided legal document, here are the key points:
- Case Details: The case is a Miscellaneous First Appeal No.388 of 2019 (MV) filed by Ivan D'Souza against the owner and insurer of a Pajero vehicle, challenging a judgment dated 14.08.2018 (!) (!) (!) (!) (!) .
- Accident Facts: On 9.1.2017, the claimant, riding as a pillion rider on a Honda Scooter, was dashed by a Pajero vehicle driven rashly and negligently, causing grievous injuries (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Tribunal's Original Award: The Tribunal apportioned contributory negligence at 10% against the rider and 90% against the Jeep driver, awarding total compensation of Rs.17,21,962/- with functional disability assessed at 24% (!) (!) (!) (!) (!) .
- Appellant's Grievances: The claimant argued for higher compensation citing severe injuries (kidney rupture, multiple fractures), loss of employment, and inadequate assessment of loss of amenities and future medical expenses (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Respondent's Defense: The insurer contested the loss of employment evidence, supported the 24% disability assessment, and argued for the deduction of 10% due to the rider's potential contributory negligence (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Court's Findings on Negligence: The Court set aside the Tribunal's finding on contributory negligence, ruling that the FIR and Charge Sheet were solely against the Jeep driver and there was no evidence to apportion blame to the scooter rider (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
- Court's Findings on Compensation:
- Income: Monthly income was corrected to Rs.12,190/- (!) (!) (!) .
- Disability & Earning Capacity: Loss of earning capacity was enhanced to 35% due to loss of employment and restriction on alternate jobs (!) (!) (!) (!) (!) (!) .
- Future Loss of Income: Calculated at Rs.7,67,970/- (!) .
- Loss of Amenities: Enhanced to Rs.1,50,000/- (!) (!) .
- Future Medical Expenses: Enhanced to Rs.50,000/- (!) (!) .
- Loss of Income during Treatment: Awarded Rs.60,950/- for five months (!) (!) .
- Total Enhanced Compensation: Rs.23,94,220/- (!) (!) .
- Final Order: The appeal was allowed in part, compensation was enhanced to Rs.23,94,220/- with 6% interest, and the insurer was directed to deposit the amount within six weeks (!) (!) (!) (!) (!) (!) (!) (!) .
Challenging judgment and award dated 14.08.2018
passed by VI Additional District and Sessions Judge and
MACT., D.K., Mangaluru ( for short 'the Tribunal') in MVC
No.1027/2017, this appeal has been filed by claimant
seeking for enhancement of compensation.
2.
Brief facts of case is as under:
On 9.1.2017, when claimant was proceeding as
pillion rider on Honda Scooter bearing Registration
No.KA-19-EG-6807 from Kuloor towards Panambur of
Mangaluru, driver of Pajero Vehicle bearing registration
No.KA-37-M-5418 drove it in a rash and negligent
manner and dashed against Honda Scooter. As a result
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claimant fell down and sustained grievous injuries. He
was admitted to A.J. Hospital, Kuntikana of Mangaluru.
Despite taking treatment, he did not recovered fully and
sustained physical disability and consequent loss of
earning capacity. Hence, he filed claim petition under
Section 166 of Motor Vehicles Act against owner and
insurer of Pajero vehicle.
3.
Despite service of notice, respondent No.1 -
owner did not contest matter. He was placed ex-parte.
Respondent No.2 - Insurer filed objections and admitted
issuance of insurance policy, subject to terms and
conditions. It denied other petition averments and
alleged contributory negligence against rider of two
wheeler and also contended that petition was bad for
non-joinder of necessary parties viz., owner and insurer
of two wheeler. Claim petition was also opposed as being
excessive.
4. Based on pleadings, Tribunal has framed
following issues for its consideration:
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1) Whether the petitioner proves, that on
9.1.2017, he was proceeding as a pillion
rider
on
Honda
Scooter
bearing
Regn.No.KA-19-EG-6807
from
Kuloor
towards Thannirubavi, Ivon D'Souza was
riding the Honda Scooter, at about 7.30
P.M., near NMPT Silver Jubilee Gate,
Thannirbavi Road, Panambur, Mangalore,
driver
of
a
Pajero
vehicle
bearing
Regn.No.KA-37-M-5418, taken the same
in a rash and negligent manner with high
speed, from opposite side and dashed the
Honda Scooter in which petitioner was
proceeding, in the result he fell down and
he has sustained injuries?
2) Whether the petitioner is entitled for
compensation? If so, from whom and
what extent?
3) What order or award?
5.
In order to establish his case, claimant
examined himself as PW.1 and three other witnesses as
PWs.2 to 4 and got marked Exs.P1 to P137. Respondent
did not lead any evidence but got produced copy of the
insurance policy.
6. On consideration, tribunal answered issue no.1
holding that accident occurred due to rash and negligent
driving of driver of Pajero Jeep and rider of two wheeler
and apportioned contributory negligence between them
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in the ratio of 10%:90% i.e. 10% against rider of two
wheeler and 90% against driver of Jeep. It answered
issues no.2 & 3 partly in affirmative. Tribunal determined
age of claimant as '33' years, occupation as 'driver', his
monthly income at Rs.11,000/-, functional disability at
24% awarded total compensation of Rs.17,21,962/-
(Rupees seventeen lakhs twenty one thousands and nine
hundred and sixty two only) with interest @ 6% per
annum and held insurer is liable to pay at 90% of
compensation i.e. Rs.17,21,962/-. Being not satisfied
with quantum of compensation awarded by the Tribunal,
claimant is in appeal.
7.
Sri Ravishankar Shastry, G., learned counsel
for claimant/appellant submitted that claimant was
working a driver in a Private Firm and earning monthly
salary of Rs.12,190/- as per salary certificate at
Ex.P.131. In the accident, claimant sustained following
several grievous injuries:
1. abrasion on the right cheek.
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2. bone deep laceration on the middle of
forehead extending to the root of the nose
with CT scan showing
a) sub-dural haematoma
b) Sub-arachnoid haemorrhage
c) Fracture of right maxilla.
d) Right zygoma, sphenoid, both nasal
bones, right orbit, right parietal bone
and right temporal bone
3)
abrasion injury on the left side of chest
4) abrasion injury on the back of left hand
with underlyi
