ROZA MERY S vs THE PRINCIPAL
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 14 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.5556 OF 2017(MV-I)
BETWEEN:
ROZA MERY S.,
W/O ANTHONY SWAMY,
AGED ABOUT 58 YEARS,
ST
R/A NO.26, 1 CROSS,
NEAR CHURCH, I.I.M. POST,
DORESWAMY PALYA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
…APPELLANT
(BY SRI DILIP H.D., ADVOCATE FOR
SRI KALYAN R., ADVOCATE)
AND:
1. THE PRINCIPAL
CAPITAL PUBLIC SCHOOL,
TH
NO.1, 9 CROSS,
RBI LAYOUT, J.P. NAGAR,
7TH PHASE,
BANGALORE - 560 078.
2. UNITED INDIA INSURANCE CO. LTD.,
ND
NO.196, 2 CROSS,
VIDYANAGAR, OPP SKF,
COMPANY BOMMASNDA INDUSTRIAL AREA,
HEBBAGODI, HOSUR MAIN ROAD,
BANGALORE - 560 099.
…RESPONDENTS
Digitally signed
by ANUSHA V
Location: High
Court of
Karnataka
[BY SRI B A RAMAKRISHNA, ADVOCATE FOR R2;
V/C/O DATED 29.11.2018 NOTICE TO R1 IS D/W]
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.12.2016 PASSED IN MVC
NO.2837/2015 ON THE FILE OF THE XXI ACMM AND XXIII
ASCJ, MACT AT BENGALURU (SCCH-25), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and award dated 17.12.2016
passed by Motor Accident Claims Tribunal and Court of Small
Causes, Bengaluru (SCCH-25) (' Tribunal ') in MVC
no.2837/2015, this appeal is filed.
2. Sri Dilip H.D., learned counsel appearing for
Sri Kalyan R, advocate for appellant submitted that appeal was
by claimant for enhancement of compensation as well as
assailing finding of Tribunal on negligence.
3. Brief facts leading to this appeal as stated were that
at 2:30 p.m. on 03.04.2015 when claimant was crossing
Kanakapura main road, near Jyothi School, Bus no.KA-51-2313
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
driven by its driver in rash and negligent manner dashed
against claimant. In accident, claimant sustained grievous
injuries and despite treatment at Sairam Hospital and later at
Victoria Hospital, Bangalore, she did not recover fully and
sustained loss of earning capacity. Therefore, she filed claim
petition in MVC no.2837/2015 under Section 166 of Motor
Vehicle Act, 1988 (' MV Act ') against owner and insurer of bus.
4. Claim petition was opposed on all grounds including
alleging occurrence of accident due to own negligence of
claimant and violation of policy condition by insured, Tribunal
framed issues and recorded evidence.
5. Claimant along with Dr.Ramchandra S., deposed as
PWs.1 and 2 and got marked Exs.P1 to P13. There was no
rebuttal evidence by respondent.
6. On consideration, Tribunal held that accident had
occurred due to rash and negligent driving of bus by its driver
as well as claimant, as she was trying to cross a road at a point
where there was no zebra crossing, apportioned negligence to
extent of 50% against claimant and assessed compensation of
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
Rs.1,85,300/-, but awarded 50% of it i.e. Rs.92,650/-, with
interest at 8% per annum. Dissatisfied with same, this appeal
was filed.
7. It was submitted merely on ground that claimant
had sought to cross a road at a non-zebra crossing, would not
by itself imply contributory negligence and even so at 50%
extent. On said grounds sought for modification. On quantum,
it was submitted that as on date of accident, claimant was 65
Rs.
years of age, working as coolie and earning 10,000/- per
month. But Tribunal erroneously considered her monthly
Rs.
income as only 7,500/- and awarded inadequate
compensation. It was submitted that claimant sustained
fracture of right tibia and fibula in addition to fracture of
phalanx. PW.2 who had examined claimant had assessed
disability of 19.7%. Consideration of functional disability at
15.13% by Tribunal would be on lower side. Even award of
Rs. Rs.
40,000/- towards pain and suffering, 95,319/- towards
Rs.
future loss of income, 19,956/- towards medical expenses,
Rs. Rs.
10,000/- towards loss of amenities and 20,000/- towards
incidental expenses would be grossly inadequate and sought for
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
enhancement. It was submitted that failure to award
compensation towards loss of income during laid up period
would also call for interference. On above grounds sought for
allowing appeal.
8. On other hand, Sri B.A. Ramakrishna, learned
counsel for respondent no.2 - insurer would oppose appeal. It
was submitted that based on proper appreciation of entire
material on record, Tribunal had passed just award and leaving
no scope for enhancement. On said ground sought for
dismissal.
9. Heard learned counsel, perused impugned
judgment, award and record.
10. From above and since claimant is in appeal
challenging finding of Tribunal on negligence as well as on
quantum, points that arise for consideration are:
1. Whether apportionment of negligence to
extent of 50% against claimant was
excessive and called for reduction?
2. Whether claimant was entitled for
enhancement of compensation?
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
Point no.1:
11. To establish actionable negligence against
respondents, claimant relied on prosecution records i.e.
FIR/complaint, panchanama/sketch, motor vehicle inspector's
report, wound certificate and charge sheet got marked as
Exs.P1 to P5. Claimant also examined doctor who had treated
her as PW.2. Ex.P1 - FIR/complaint and Ex.P5 - charge sheet
would arraign only driver of school bus. However, in course of
cross-examination of PW.1, respondents elicited an admission
that accident occurred when she was trying to attempt to cross
road at a point where there was no zebra crossing. But, there is
no contention urged or material produced by respondents to
indicate that collision occurred despite Driver of Bus applying
brakes etc. Considering above facts and circumstances,
apportionment of negligence to extent of 50% each would not
be justified. It is found appropriate to reduce it to against 25%
against claimant and 75% against driver of insured vehicle.
Point no.1 is answered partly in affirmative as above.
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
Point no.2:
12. There is no dispute that as on date of accident,
claimant was 65 years of age and stated to be earning
Rs.10,000/- per month as coolie. However, there was no
material to substantiate income; in absence, Tribunal would be
justified in assessing it notionally. But notional income for year
2015 being Rs.9,000/-, same has to be considered. As per
medical records, claimant sustained fracture of left tibia and
fibula, apart from fracture of fracture of phalanx of great toe.
PW.2 opined that there was restriction of movement of limb
causing disability to extent of 19.7%. Considering age and
extent of disability caused, assessment of loss of earning
capacity at 15.13% by Tribunal would appear just and proper.
Considering age of claimant at 65 years, multiplier applicable
would be ‘7’. Thus, compensation towards future loss of income
would be Rs.9,000/- X 15.13% X 12 X 7 = Rs.1,14,382/- .
13. Considering fact that claimant sustained fracture to
structural bone apart from additional fracture, award of
Rs.40,000/- towards pain and suffering would be inadequate
and is enhanced to Rs.50,000/- . Tribunal has awarded
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
Rs.19,956/- towards medical expenses against
reimbursement of all medical bills, leaving no scope for
enhancement. Tribunal has awarded Rs.10,000/- towards loss
of amenities. Considering age and extent of disability same
would appear inadequate and enhanced to Rs.30,000/- . As
per medical records of claimant, she took inpatient treatment
for a period of 23 days. Therefore, award of Rs.20,000/-
towards food nourishment, attendance and other incidental
expenses would be inadequate and found it appropriate to be
enhanced to Rs.30,000/- . Tribunal has not awarded any
compensation towards loss of income during laid up period.
Taking period of three months as layoff, claimant would be
entitled to Rs.27,000/- towards same. Thus, total
compensation would be Rs.2,71,338/- . Point no.2 is answered
accordingly.
14. In view of above, following:
ORDER
allowed in part
i) Appeal is , judgment and
award dated 17.12.2016 passed by Tribunal in
MVC no.2837/2015 is modified .
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HC-KAR
NC: 2026:KHC:57904
MFA No. 5556 of 2017
CNR: KAHC010521722017
ii) Claimant is held entitled to total compensation
enhanced from Rs.1,85,300/- to
Rs.2,71,338/- with interest at 8% per
annum from date of claim petition, till deposit.
iii) Apportionment of negligence against claimant
is reduced to 25%. Thus, claimant would be
entitled to Rs.2,03,503/- .
iv) Insurer is directed to deposit enhanced
compensation with interest before Tribunal
within six weeks.
v) On deposit, entire enhanced compensation
with interest is ordered to be released in
favour of claimant.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 1 Sl No.: 15