1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 18TH DAY OF AUGUST, 2017 BEFORE THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO MFA. No.31169/2012 C/w [CASE NUMBER]Nos.1045/2012 & 1055/2012(MV) [CASE NUMBER] BETWEEN: The [ENTITY], (Now Represented through Asst. Manger, National Insurance Co.Ltd. D.o. Gulbarga) Appellant (By Smt. [ENTITY], Advocate) AND: 1. [ENTITY] S/o [ENTITY] Age: 30 years, Occ: Sales Executive R/o: Mahagan Taluka and District: Gulbarga 2. [ENTITY] S/o [ENTITY] 2 Age: Major, Occ: Owner of Tractor And Trailer, R/o: Ambalaga Taluka: Aland, District: Gulbarga R2 a) [ENTITY] W/o Late [ENTITY] Age: 52 years, R2 b) [ENTITY] S/o Late [ENTITY] Age: 32 years R2 c) [ENTITY] S/o Late [ENTITY] Age: 28 years, All R/o. Ambalaga Village, Tq. Aland Dist: Gulbarga 3. [ENTITY] S/o [ENTITY] Age: Major, Occ: Owner of [ENTITY] R/o: Mahagoan, Taluka and Dist: Gulbarga Respondents (By Sri: [ENTITY]., Advocate for R-1; Sri. [ENTITY]., Advocate for proposed for R-2 (A to C); Sri. [ENTITY]., Advocate for R-3) This Miscellaneous First Appeal Is Filed Under [SECTION] of [ACT]., praying that, this Hon'ble court be pleased to call for the records and allow the above appeal by setting aside the impugned Judgement and Award dated : 15.11.2011 in [CASE NUMBER] passed by the Prl. Senior Civil Judge and M.A.C.T. at Gulbarga. Wherein, partly allowing the petition and awarding the compensation of Rs. 4,02,200/- with interest @ 6% per annum. 3 [CASE NUMBER] BETWEEN: [ENTITY] S/o [ENTITY] Age: 30 years, Occ: Legal Practitioner (Previously Sales Executives) R/o: [ENTITY] Now at Gulbarga Tq: Dist: Gulbarga Cross Objector (By Sri. [ENTITY], Advocate) AND: 1. [ENTITY] S/o [ENTITY] Age: Major, Occ: Owner of Tractor And Trailer, R/o: Ambalaga Taluka: Aland, District: Gulbarga R1 a) [ENTITY] W/o Late [ENTITY] Age: 52 years, R1 b) [ENTITY] S/o Late [ENTITY] Age: 32 years R1 c) [ENTITY] S/o Late [ENTITY] Age: 28 years, All R/o. Ambalaga Village, Tq. Aland, Dist: Gulbarga 2. The Divisional Manager, National Insurance Company Ltd., Bilgundi Complx, Station Road, Gulbarga 3. [ENTITY] S/o [ENTITY] Age: Major, Occ: Owner of [ENTITY] 4 (Motor Cycle), R/o: Mahagoan, Taluka and Dist: Gulbarga Respondents [By Sri. [ENTITY], Advocate for R-1 (A to C); Smt. [ENTITY], Advocate for R-2; Sri. [ENTITY], Advocate for R-3] This Miscellaneous First Appeal Cross Objection is Filed Under [SECTION] of [ACT] by setting aside the Judgement and Award dated 15.11.2011 passed in [CASE NUMBER] by the Prl. Senior Civil Judge and M.A.C.T. at Gulbarga. Partly allowing the claim petition and seeking enhancement of compensation. [CASE NUMBER][CASE NUMBER] BETWEEN: [ENTITY] S/o [ENTITY] Age: Major, Occ: Owner of [ENTITY] R/o: Mahagoan, Taluka and Dist: Gulbarga Cross Objector (By Sri. [ENTITY]., Advocate) AND: 1. [ENTITY] S/o [ENTITY] Age: Major, Occ: Owner of Tractor And Trailer, R/o: Ambalaga Taluka: Aland, District: Gulbarga R1 a) [ENTITY] W/o Late [ENTITY] Age: 52 years, 5 R1 b) [ENTITY] S/o Late [ENTITY] Age: 32 years R1 c) [ENTITY] S/o Late [ENTITY] Age: 28 years, All R/o. Ambalaga Village, Tq. Aland, Dist: Gulbarga 2. The Divisional Manager, National Insurance Company Ltd., Bilgundi Complx, Station Road, Gulbarga 3. [ENTITY] S/o [ENTITY] Age: 30 years, Occ: Sales Executive R/o: [ENTITY] Tq: Dist: Gulbarga Respondents [By Sri: [ENTITY], Advocate for R-1 (A to C); Smt. [ENTITY], Advocate for R-2; Sri. [ENTITY], Advocate for R-3] This Miscellaneous First Appeal Cross Objection is Filed Under [SECTION] of [ACT] by setting aside the Judgement and Award dated 15.11.2011 passed in [CASE NUMBER] by the Prl. Senior Civil Judge and M.A.C.T. at Gulbarga. Partly allowing the claim petition and seeking enhancement of compensation. The appeal and cross objections are coming on for final hearing this day, the Court delivered the following: 6 JUDGMENT
The appeal and cross objections are arising out of the common judgment and award passed by the MACT, Gulbarga in [CASE NUMBER] dated 15.11.2011.
2. [CASE NUMBER] is preferred by the Insurance Company for setting aside the judgment and award passed by the Tribunal, [CASE NUMBER] [CASE NUMBER] is preferred by the claimant seeking enhancement of compensation and [CASE NUMBER] is preferred by owner of the motorcycle for exonerating him from paying compensation.
3. In order to avoid the confusion and overlapping, the parties hereinafter are referred in accordance with their respective rankings before the Tribunal.
4. The incident in question is said to have happened on 05.11.2008 at about 7.20 p.m. when the claimant along with his friend [ENTITY] were proceeding on a motorcycle bearing No.KA-32/R-226 towards their village Mahagaon. The claimant was proceeding on the said motorcycle as a pillion rider. When they came near Aurad-B village on Gulbarga - Humnabad, State highway, an unknown truck came from opposite direction in a rash and negligent manner due to which, the rider of the motorcycle to avoid the accident has to took his vehicle extreme left of the road and dashed to the stationed tractor and trailer bearing No.KA-32/T-7468/7469. Because of which, the claimant sustained multiple injures and was shifted to hospital for treatment. The claim petition before the Tribunal for compensation came to be preferred by the injured.
5. The learned Member has allowed the said claim petition in part by awarding compensation of Rs.4,02,200/- along with interest at 6% per annum from the date of petition till realization. Being dissatisfied with the said compensation, appeal and cross objections were filed.
6. Insofar as [CASE NUMBER] is concerned, the learned counsel for the appellant submits that fastening of the liability on the Insurance Company to pay 70% of the compensation by the Tribunal is not just and proper and the entire liability should have been saddled on the owner of the motorcycle.
7. The learned counsel for cross objection in [CASE NUMBER] submits that the compensation awarded by the Tribunal is on the lower side, and he seeks enhancement of compensation.
8. The learned counsel for the cross objector in [CASE NUMBER] submits that the entire liability to pay compensation awarded by the Tribunal has to be fastened on the appellant - insurer of the tractor-trolley as there is no negligence on the part of the rider of the motorcycle.
9. The learned counsel for the appellant - insurance company has relied upon the judgment of this Court in the case of The [PRECEDENT] connected matters dated 15.02.2016.
10. The learned counsel for the cross objector in [CASE NUMBER] has relied upon the judgment of this Court in the case of [PRECEDENT] in [CASE NUMBER] and connected matters dated 10.11.2014 and judgment of the Hon'ble Apex Court in the case of [PRECEDENT]. in [CASE NUMBER] dated 11.09.2014 and also in the case of [PRECEDENT].
11. In view of the submission made by the learned counsel for the parties, the point that arises for consideration is whether the Tribunal is justified in awarding compensation and saddling the liability to pay 70% of the compensation on the Insurance Company and 30% on the owner of the offending motorcycle?"
12. In the context and circumstances of the case, the Tribunal has considered the aspects of the accident, FIR, injuries sustained by the claimant and loss of future income.
13. The injuries sustained by the claimant are as under:
i. Craniotomy in right parietal region.
ii. Hypodense lesion in the right parietal cortex iii. No evidence of Subdural or extradural haematoma seen iv. Brain stem and cerebellum v. Sulci and gyri are normal vi. No evidence of hemorrhage or SOL seen vii. Cerebral hemispheres, thalamus and basal
ganglia and internal capsule are normal. viii. The craniotomy in right parietal region.
14. The Tribunal has considered the notional income of the claimant at Rs.4,000/- and disability at 20%. The doctor has considered the disability at 56% in view of the injuries sustained by the claimant. It should have considered at 25%
15. The claimant is an advocate, who is aged about 28 years at the time of the accident. His notional income was Rs.6,000/-. The Tribunal has considered the same at Rs.4,000/- per month and the compensation towards loss of future income has not been adequately considered. Considering the fact that the claimant is an advocate notional income should have been considered at Rs.6,000/- per month and 50% of the same should have been added towards loss of future income.
16. The multiplier applicable is 17 as the claimant was aged about 28 years at the time of the accident. Thus, the compensation towards loss of future income comes to Rs.4,59,000/- (9,000x25% = 2,250x12=27,000x17) as against Rs.1,63,200/- awarded by the Tribunal. The compensation awarded by the Tribunal on other heads deserves to be maintained.
17. Thus, the claimant is entitled for the following enhanced compensation:
Pain and suffering Rs. 20,000/- Medical Expenses Rs.2,00,000/- Attendant, nursing, extra Nourishment charges and Conveyances Rs. 5,000/- Loss of future earnings Rs.4,59,000/- Loss of income during Laid-up period Rs. 4,000/- Loss of amenities Rs. 10,000/- Total Rs.6,98,000/-
18. Thus, the claimant is entitled to enhanced compensation of Rs.6,98,000 as against Rs.4,02,200/- awarded by the Tribunal.
19. Insofar as negligence is concerned, the rider of the motorcycle cannot say that there was no negligent at all. Moreover, it was submitted that the criminal case was registered against the rider of the motorcycle and the driver of tractor-trolley. In the circumstances, it cannot concluded that there was no contributory negligence. Hence, the liability on the owner of the motorcycle to pay 30% of the compensation is reduced to 25%.
20. Thus, the claimant is entitled for *total compensation of *Rs.6,98,000/- The appellant - insurance company is directed to pay *(Rs.5,23,500/-) 75% of the compensation and the owner of the motorcycle is directed to pay *(Rs.1,74,500/-) 25% of the compensation along with interest at 6% per annum from the date of petition till realization.
Accordingly, the judgment and award passed by the MACT, Gulbarga in [CASE NUMBER] is modified. The appeal filed by the appellant - Insurance Company is dismissed. The cross objections filed by the claimant and the owner of the motorcycle are allowed in part. ( Corrected V/o dtd: 13.10.2017) The apportionment of the enhanced compensation shall be as per the Tribunal order.
JUDGE [ENTITY]