Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 709 (KAR)

Prema Kamath v. K. P. Saraswathi

2023-05-25

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. The petitioner in MVC No.835/2013 before the II Additional Senior civil Judge and AMACT -8, Shivamogga, is before this Court in appeal. 2. By the impugned judgment, the Tribunal has awarded a sum of Rs.52,000/- with interest at 9% p.a. and directed the 3rd and 4th respondents to deposit the same in the ratio of 80:20. 3. The factual matrix of the case are as below: It is the case of the petitioner that on 9-6-2012, the petitioner and her husband i.e., respondent No.4 before the Tribunal were moving on a Scooty bearing No.KA.14.EA/7970 and she was a pillion rider. At about 7.10 a.m. on Shivamogga- Sagar road, a Maruthi Omni car bearing No.KA.14.M/5536 came in high speed, in negligent manner and dashed against the scooty. As a result, petitioner and her husband fell down and sustained grievous injuries. Petitioner was taken to Nanjappa hospital, Shivamogga, where she took treatment as inpatient and thereafter, she was shifted to KMC Hospital Manipal where she took treatment as an inpatient and underwent surgery. But inspite of the medical treatment injuries are not cured and still she is taking treatment. It is further contended that, at the time of accident, petitioner was aged about 68 years and she has suffered disability and un-comforts and therefore, she is entitled for the compensation from the driver, owner and insurer of the offending vehicle. The petitioner has also arrayed her husband as respondent No.4 before the Tribunal. 4. In response to the notice issued by the Tribunal, respondent Nos. 1 to 4 have appeared and filed their objection statements. 5. The respondent Nos. 1 and 2 denied any actionable negligence attributed to them and contended that the accident was due to the sole negligence on the part of respondent No.4, the rider of the two wheeler. 6. The respondent No.3 admitted the cover of insurance on the Maruthi Omni vehicle, but contended that the compensation claimed is highly exorbitant, imaginary and unsustainable and that the terms and conditions of the policy had been violated and as such, it is not liable to pay the compensation. 7. 6. The respondent No.3 admitted the cover of insurance on the Maruthi Omni vehicle, but contended that the compensation claimed is highly exorbitant, imaginary and unsustainable and that the terms and conditions of the policy had been violated and as such, it is not liable to pay the compensation. 7. The respondent No.4 admitted the accident, but claimed that there was no negligence on his part and accident was solely due to negligent act of respondent No.2 and he is not necessary party to the petition and only to escape from liability, respondent No.3 has imp-leaded him and prayed to dismiss the petition. 8. On the basis of the above pleadings, the Tribunal framed the necessary issues and the petitioner was examined himself as PW1 and Exs.P1 to P10 were marked in evidence. No evidence was adduced on behalf of respondents. The Tribunal after hearing the arguments by both sides and on perusal of the records, came to the conclusion that the husband of the petitioner i.e., respondent No.4 had also contributed to the extent of 20% of the actionable negligence, since he did not possess a valid driving license to drive a two wheeler. Ultimately, it came to the conclusion that the petitioner is entitled for a compensation of Rs.52,000/- and directed the respondent No.3 and respondent No.4 to pay the compensation amount to the petitioner in the ratio of 80:20. It is the said judgment which has been assailed by the petitioner before this Court in this appeal. 9. The appeal was admitted and on issuance of notice, respondent No.3- Insurance Company has appeared through its counsel and other respondents did not appear despite service of notice. 10. The learned counsel appearing for the appellant/ petitioner submits that none of the respondents had contended that there was any contributory negligence, but the Tribunal came to the conclusion that there was a contributory negligence by the respondent No.4 i.e., the husband of the petitioner since he did not possess a valid driving license at the time of the accident. The learned counsel appearing for the appellant/ petitioner submits that none of the respondents had contended that there was any contributory negligence, but the Tribunal came to the conclusion that there was a contributory negligence by the respondent No.4 i.e., the husband of the petitioner since he did not possess a valid driving license at the time of the accident. In support of his contention, he placed reliance on the decision reported in the case of Sudhir Kumar Rana v. Surinder Singh and others, 2008 AIR SCW 3981, wherein it was held that, "non possession of the driving license by itself may not lead to a finding of negligence as regards the accident." Similar view have also been expressed by various other High Courts and which cannot be overlooked that the negligence cannot be linked to the driving license. Unless there is a positive evidence that there was a contributory negligence on the part of the respondent No.4, non-possession of the driving license to drive a vehicle cannot be a reason to hold that there was actionable negligence on the part of the such rider also. Therefore, the reliance placed by the Tribunal on the decision in the case of Chatra and another v. Imrat Lal and others, 1998 AC 314 rendered by the Madhya Pradesh High court was not proper. 11. It is evident that the respondent Nos. 1 and 2 though contended that the accident was due to the negligence on the part of the respondent No.4, did not adduce any positive evidence in support of the same. Under these circumstances, it cannot be concluded that there was a contributory negligence on the part of respondent No.4. It is evident that the investigation by the police also led to the conclusion that there was negligence on the part of the driver of the Maruthi Omni. There is nothing on record in the police papers to show that there was any contributory negligence on the part of respondent No.4. Hence, the finding of the Tribunal about the contributory negligence cannot sustain in the eyes of law. 12. The second prong of the arguments by the learned counsel appearing for the appellant is that the compensation awarded by the Tribunal is abysmal and it do not conform to the settled principles of law. Hence, the finding of the Tribunal about the contributory negligence cannot sustain in the eyes of law. 12. The second prong of the arguments by the learned counsel appearing for the appellant is that the compensation awarded by the Tribunal is abysmal and it do not conform to the settled principles of law. He points out that the compensation under the head of loss of amenities in life and the loss of income which surfaces during laid up period are not considered by the Tribunal. Though he concedes that there is no evidence regarding the percentage of the disability suffered by the petitioner, he maintains that the compensation under the above two heads should have been granted by the Tribunal. 13. On perusal of the impugned judgment, it is evident that, the Tribunal awarded the compensation under the following heads: Towards pain and sufferings Rs.30,000/- Towards medical expenses Rs. 12,000/- Towards conveyance, attendant charges and food and nourishment Rs. 10,000/- Total Rs.52,000/- 14. Evidently, the petitioner had suffered comminuted displaced fracture of upper limb and distal 1/3rd of right humerus and displaced fracture of 1/3rd of right ulna. These two fractures definitely paralyze the petitioner for considerable time. The age of the petitioner cannot be over looked. Therefore, it is evident that the Tribunal has lost sight of the fact that the petitioner is also entitled for compensation under the head of loss of amenities in life which this Court finds that a sum of Rs.30,000/- would be adequate. 15. Further, it is evident that the Tribunal also did not consider the fact that the petitioner was a senior member in her family and she was paralyzed atleast for a period of two months on account of her injuries and she was dependent upon others. The resultant economical impact on the family cannot be overlooked. Therefore, the loss of income during the treatment period, which obviously is to her family members should have been assessed by the Tribunal. In the considered opinion of this Court, it would be proper to award a sum of Rs.10,000/- under this head to the petitioner. 16. In the result, the petitioner is also entitled for a sum of Rs.30,000/- under the head of loss of amenities in life and a sum of Rs.10,000/- under the head of loss of income during the laid up period and totally, a sum of Rs.40,000/- with interest. 17. 16. In the result, the petitioner is also entitled for a sum of Rs.30,000/- under the head of loss of amenities in life and a sum of Rs.10,000/- under the head of loss of income during the laid up period and totally, a sum of Rs.40,000/- with interest. 17. In that view of the matter, the appeal deserves to be allowed in part. Hence, the following: ORDER The appeal is allowed in part. The finding of the Tribunal that the respondent No.4 is liable to pay 20% of the compensation amount is hereby set aside. The respondent No.3 Insurance company is directed to pay the entire compensation amount. There shall be an enhancement of Rs.40,000/- in addition to what has been awarded by the Tribunal along with interest at 6% p.a. from the date of petition till its deposit. The impugned judgment of the Tribunal is modified accordingly. The respondent No.3-Insurance Company is directed to deposit the compensation amount within a period of six weeks from the date of this order. After deposit of the compensation amount, the entire amount be released to the petitioner/appellant.