Full Judgment
- 1 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE29H DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL MISCL.FIRST APPEAL NO.202509/2022(MV) BETWEEN: MUTTAPPA @ MUTTU S/O KALLAPPA DALAWAI, AGE:
33. YEARS, OCC: DRIVER, R/O ITANGIHAL, TALUK AND DIST. VIJAYAPURA-586102. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR,ADVOCATE) AND:
1. SAHEBGOUDA S/O BABAGOUDA BIRADAR, AGE:
43. YEARS, OCC: BUSINESS, R/O JALAGERI, TALUK AND DISTRICT. VIJAYAPURA-586104.
2. THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., 1ST FLOOR, BIDARI COMPLEX, S.S.FRONT ROAD, VIJAYAPURA-586101. …RESPONDENTS - 2 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2; R1-V/O DATED2911.2023 NOTICE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION1731) OF MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY MODIFYING THE JUDGMENT
AND AWARD DATED1504.2021 PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT - VI, AT VIJAYAPURA, IN MVC No.75/2019. THIS APPEAL COMING ON FOR ORDER
S, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
1 This appeal is by the injured-claimant being aggrieved by the judgment and award dated 15.04.2021 passed in MVC No.75/2019 by the I Additional Senior Civil Judge and MACT-VI, Vijayapura (for short 'Tribunal'), by which, the Tribunal while partly allowing the claim petition awarded a sum of Rs.2,95,000/- with interest at 6% per annum from the date of petition till realization. Further, the Tribunal having found that the claimant himself had contributed to the cause of accident, has assessed the - 3 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 negligence in the ratio of 50:50 and has directed the Insurance Company to pay 50% of the award amount.
2. Brief facts of the case are that: a) On 07.10.2018 at about 20:00 hours appellant- claimant was riding a motorcycle bearing its Reg.No.KA-28/EE-5440 towards Solapur bypass road from Darga Cross side. At that time a Tractor-Trailer bearing its Reg. No.KA-28/TB-8933-8934 was parked negligently in the middle of the road without there being any light, signal or signs indicating the parking of the said Tractor-Trailer. The appellant not being able to notice dashed the said parked vehicle, resulting in accident suffering grievous injuries. Thereupon, a claim petition is filed claiming compensation of Rs.15,00,000/- on the premise that the appellant was earning a sum of Rs.20,000/- per month and due to injuries suffered in the accident he is permanently disabled.-. 4 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 b) Despite receipt of the summons respondent No.1- owner of Tractor-Trailer did not appear before the Tribunal and was placed ex-parte. c) Respondent No.2 - Insurance Company appeared through its counsel and filed statement of objections denying the material averments and allegations made in the claim petition. It also denied that the accident in question had occurred due to negligence on the part of the driver of Tractor-Trailer. It was contended that the claimant himself has caused accident due to his negligence by riding the motorcycle in a rash and negligent manner. It is however admitted that it issued a policy to respondent No.1 covering the Tractor-Trailer and the same was valid at the time of incident. It was further contended that the driver of the Tractor- Trailer did not have valid driving license to drive the particular class of vehicle and there was violation of - 5 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 terms of the policy, as such, claim petition was sought to be dismissed. d) The Tribunal based on the pleadings, framed issues and recorded the evidence. Claimant examined himself as PW1 and exhibited 11 documents marked as Exs.P1 to P11. No witness has been examined on behalf of respondents, except marking certified copy of the policy as Ex.R1. e) After appreciation of the pleadings and evidence, the Tribunal held that the accident in question had occurred on account of negligence on the part of both, the driver of Tractor-Trailer, as well as the rider of the motorcycle. Thus, the Tribunal held that there was contributory negligence. The Tribunal assessed the compensation payable to the claimant at Rs.2,95,000/- and directed the Insurance Company to pay 50% of the said compensation.-. 6 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 3. Aggrieved by the impugned judgment and award, the claimant is before this Court seeking enhancement of compensation and for fixing the entire liability on the Insurance Company.
4. Learned counsel for the claimant-appellant reiterating the grounds urged in the memorandum of appeal submits that the Tribunal grossly erred in attributing negligence on the part of the appellant- claimant merely relying upon the contents of the charge- sheet and without there being any evidence whatsoever. He submits that no witness has been examined on behalf of Insurance Company to prove the factum of negligence and the Tribunal could not have assumed and attributed negligence on the part of the appellant-claimant.
5. As regards compensation is concerned, learned counsel for the appellant-claimant submits that the appellant was working as Driver earning Rs.20,000/- per month. Due to accidental injuries, his earning ability has - 7 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 been drastically reduced. He also submits that the Tribunal has not taken these aspects of the matter into consideration and grant of compensation under other heads is also on the lower side, hence, seeks for allowing the appeal.
6. Smt. Preeti Patil Melkundi, learned counsel for the Insurance Company on the other hand justifying the impugned judgment and award passed by the Tribunal vehemently submits that the very fact that the charge- sheet has been filed both against the driver of the Tractor- Trailer as well as the appellant-claimant is sufficient enough to hold that there was contributory negligence on their part. She further adds that the charge-sheet has not been challenged by the appellant-claimant, which also amounts to admission of the contents of the charge-sheet. She submits that the Tribunal has taken note of these aspects of the matter and has passed reasoned order warranting no interference.-. 8 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 7. As regards the enhancement of compensation is concerned, it is her submission that the appellant-claimant has not examined the Doctor to bring on record the disability, if any, sustained by him and in the absence of any material evidence, no fault can be found with the order passed by the Tribunal awarding the compensation, hence, seeks for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. The points that arise for consideration in this appeal are: i. Whether the Tribunal in the in the facts and circumstance of the case is justified in attributing contributory negligence to the extent of 50% on the part of the appellant/claimant?. ii. Whether the appellant is entitled for enhancement of compensation?. - 9 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 10. The Division Bench of this Court in its order dated 19.01.2021 passed in MFA No.6270/2016 C/W MFA No.1878/2017 (MV-D) in the case of Sriram General Insurance Company Limited Vs Vanajakshi and anr dealing with identical situation at paragraph 7 has held as under:
"It is well settled law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity to avoid the accident by reasonable care and who then knew or ought to have known the danger caused by the other negligence in the case of contributory negligence. [See SALAMOND ON THE LAW OF TORTS, TWELETH EDITION 1957 PAGE NO.439- 441].. It is equally well settled that burden of proving negligence lies on person who alleges it. The Apex Court in the case of Municipal Corporation of Greater Bombay Vs Lakshmanaiah and others reported in 2003(SC) 4182 has held that the crucial question in the case of contributory negligence is whether party could by reasonable care have avoided the consequences of others negligence. The finding with regard to contributory negligence has to be arrived at on the basis of proper consideration of pleading and legal evidences adduced by both the parties and same cannot be based merely on police records. [`Minurout Vs Satya Pradyumna Mohapatra, (2013)10 SCC695and `Sarala Devi Vs Royal Sundaram Alliance Insurance Co. Ltd., (2014) 15 SCC450. It is also settled law burden to prove - 10 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 breach of duty on the part of the victim lies on the insurance company and the insurance company has to discharge the burden. [Usha Raj Khowa Vs Paramount Industries (2009) 14 SCC71.
11. Responsibility to avoid consequences of others negligence becomes even more imperative and compelling in the cases involving parked vehicle on the roads. It is necessary at this juncture to refer Section 122 of the Motor Vehicles Act, 1988 (fort short 'MV Act'), which reads as under:
"122. Leaving vehicle in dangerous position.- No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.
12. The aforesaid provisions of MV Act read in the light of the principles governing consideration of case of negligence reinforces the fact that owner or attender of the vehicle has a statutory obligation to ensure that he has taken all precautionary measures while parking it on public road. Case of this nature which involving accident - 11 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 between the parked vehicle and the moving vehicle, the first and foremost obligation/burden to be discharged is on the owner of the vehicle which is parked on the road and prove that he had indeed complied with the requirement of Section 122 of MV Act'. It is only thereafter, the negligence, if any, on the part of other road users, the claimant in this case, would arise. In the absence of compliance to this statutory and elementary requirement it is not possible to presume and attribute the negligence on the part of claimant without there being any material evidence on record. The Tribunal merely relying upon the charge-sheet - Ex.P6 has come to the conclusion that since the charge-sheet has been filed both against the driver of the Tractor-Trailer and the appellant-injured and the same not have been questioned, is evidence enough to attribute contributory negligence on the part of both the driver of Tractor-Trailer and rider of motorcycle. This in the considered opinion of this Court is an erroneous approach. It is necessary to refer to the contents of the charge-sheet which reads as under: - 12 - NC:
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13. Thus, perusal of the aforesaid contents of charge-sheet would reveal that the Investigating Officer has noted that the appellant-claimant who was riding motorcycle did not have license to ride the vehicle and the vehicle was not insured. Apparently, these two factors have weighed in his mind to file a report that the claimant was riding negligently. The further contents of the charge-sheet as extracted hereinabove would indicate that the Tractor-Trailer was parked by its driver knowing fully well that the same would cause inconvenience to the other road users and that there was no indication or signal - 13 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 provided by him. When the charge-sheet categorically finds that the vehicle was parked by its driver knowing fully well that the same would cause inconvenience to others and that too without taking any precautionary measures or indication, the same stands in violation to the statutory provisions under Section 122 of MV Act extracted hereinabove. Mere non possessing a driving license and the vehicle not having been insured would not be grounds or factors to attribute negligence though they may have a different consequence of violation of relevant provisions of applicability of the Act and Rules.
14. Since the respondent - owner of the tractor- trailer did not even appear before the Tribunal placing his defence, and in the light of the aforesaid contents of charge-sheet read in the light of Section 122 of MV Act, the Tribunal ought to have addressed these aspects and answered this issue at the first instance. It might have been a case for attributing negligence on the part of the appellant-claimant if the first requirement of Section 122 - 14 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 of MV Act was discharged. Since, that not having been done in the first instance, merely based on the contents of the charge-sheet, the Tribunal could not have arrived at the conclusion that the claimant had also equally contributed to the negligence in causing the accident, more particularly when no witness has been examined by the respondent-Insurance Company. It is this requirement of non-compliance of statutory obligation contained under Section 122 of MV Act and lack of discharge of burden by respondent No.1 - owner of Tractor-Trailer by filing statement of objections or entering the witness box, and non production of cogent evidence by the respondent- Insurance Company that has not been considered by the Tribunal.
15. In the light of the aforesaid discussion and the principles of determination of case of negligence and the statutory provisions of Section 122 of MV Act, this Court is of the considered view that the conclusion arrived at by the Tribunal attributing contributory negligence to the - 15 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 extent of 50% on the part of appellant-claimant is not sustainable and the same requires to be interfered and set aside. The first point raised is answered accordingly.
16. Adverting to the second aspect of the matter regarding claim of the appellant for enhancement of the compensation, though it is claimed that the claimant was earning Rs.20,000/- per month, no material evidence is produced in this regard. That apart, though it is claimed that the appellant has sustained grievous injuries resulting in permanent disability there is no iota of evidence with regard to the disability as claimed by the appellant. Nothing prevented the claimant from examining the treated Doctor or obtaining the Disability Certificate. No fault can be found with the Tribunal in this regard. However, it is necessary to reassess the compensation awarded under other heads considering the nature of the injuries and the length of treatment underwent by the claimant. As per Ex.P4 claimant has suffered the following injuries: - 16 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022
"1. Cut Wound present on left earlobe 5 cm x 1 cm
2) Cut wound over centre of head
3) Bruins over left hand & finger
4) Bruins over left side lip.
5) Tongue bite (+)
6) Bleeding from mouth
17. It is stated that the claimant underwent treatment as an inpatient for a period of 35 days in Gangamayi Hospital.
18. The Tribunal has awarded a sum of Rs.20,000/- towards pain and suffering. This Court is of considered view that an addition of Rs.10,000/- be made making it Rs.30,000/- towards pain and suffering.
19. The Tribunal has awarded global sum of Rs.25,000/- towards the disability and the same is sustained.
20. The Tribunal has not awarded any amount under the heads of loss of amenities, food and nourishment, conveyance and loss of income during laid up period. Considering the length of treatment as an inpatient for a - 17 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 period of 35 days in the Hospital compensation towards attendant charges, food and nourishment, conveyance needs to be awarded. The same is awarded at Rs.40,000/- 21. A sum of Rs.25,000/- is awarded towards loss of amenities.
22. A sum of Rs.22,500/- is awarded towards loss of income during laid up period.
23. The Tribunal has awarded a sum of Rs.2,50,000/- towards medical expenses. The same is maintained as it is.
24. Thus, the claimant is held entitled for a total compensation of Rs.3,92,500/- instead of Rs.2,95,000/- awarded by the Tribunal as under: Sl. Heads By By No.Tribunal this Court 1 Loss of future ---- ---- earning 2 Towards pain and Rs.20,000/- Rs.30,000/- suffering 3 Toward loss of ---- Rs.25,000/- amenities - 18 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 4 Towards attendant, ---- Rs.40,000/-. nourishment and Conveyance. 5 Loss of income ---- Rs.22,500/- during period of treatment 6. Towards medical Rs.2,50,000/- Rs.2,50,000/- expenses 7. Towards disability Rs.25,000/- Rs.25,000/- Total Rs.2,95,000/- Rs.3,92,500/- 25. For the foregoing reasons, following: ORDER
a) The appeal is partly allowed. b) The appellant/claimant is held entitled for a total compensation of Rs.3,92,500/- instead of Rs.2,95,000/- awarded by the Tribunal with interest at 6% per annum from the date of claim petition till realization. c) Respondent No.2 - Insurance Company shall pay the aforesaid compensation amount within a period of 30 days from the date of receipt of certified copy of this judgment.-. 19 - NC:
2023. KHC-K:8902 MFA No.202509 of 2022 d) The award of the Tribunal is modified accordingly. Sd/- JUDGE SBS, RL List No.:
1. Sl No.: 5