IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.9127/2012(MV) BETWEEN:
A.H. VEDAMURTHY S/O HONNAPPA AGED ABOUT 36 YEARS OCC: CABLE TECHNICIAN R/O DODDIKATTI VILLAGE (TOTADA MANE), SHETTIKERE HOBLI, CHIKKANAYANAKANAHALLI (TA) TUMAKUR DISTRICT – 572 214.
... APPELLANT (BY SRI. K.A. CHANDRASHEKARA., ADVOCATE) AND:
1. SADASHIVAIAH S/O LATE CHIKKEGOWDA AGED ABOUT 55 YEARS R/O CHATTASANDRA VILLAGE CIKKANAYAKANAHALLI TALUK TUMAKUR DISTRICT – 572 214.
2. NATIONAL INSURANCE CO. LTD., MUDDAPPA COMPLEX, SHIRANI ROAD TUMAKUR DISTRICT – 572 214 REP. BY ITS MANAGER. ... RESPONDENTS (BY SMT. H.R. RENUKA., ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.08.2012 PASSED IN MVC NO.1530/2008 ON THE FILE OF ITINERATE SENIOR CIVIL JUDGE & ADDITIONAL MACT, CHIKKANAYAKANAHALLI, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard Sri K.A.Chandrashekara, learned Advocate appearing for appellant and Smt.H.R.Renuka, learned Advocate appearing for respondent -2. Perused the records.
2. In respect of a road traffic accident that occurred on 07.10.2007, claim petition came to be filed by appellant seeking compensation of Rs.20 lakhs with interest @ 18% p.a. Tribunal, after considering the pleadings including objections raised by the insurer and on evaluation of the evidence, by judgment and award dated 02.08.2012 allowed the claim petition in part and awarded compensation of Rs.3,51,069/- with interest @ 6% p.a. by arriving at a conclusion that there was contributory negligence on the part of appellant and as such, directed the insurer to indemnify the claimant to the extent of 80% of the judgment and award. Hence, claimant is before this Court for enhancement of compensation and also to fix entire liability on the insurer-second respondent.
3. Having heard the learned Advocates appearing for parties and on perusal of the records, it is noticed that Tribunal, after appreciation of entire material evidence available before it, has awarded total compensation of Rs.3,51,069/- under the following heads:
4. Compensation awarded by the Tribunal is just and reasonable and it would not call for interference. However, with regard to its finding that 20% of the compensation is not liable to be indemnified by the insurer is an erroneous finding for following reasons:
As could be seen from the finding recorded by the Tribunal to attribute contributory negligence on claimant vide paragraph 10 of its judgment, it came to be held that claimant who was driving the motor cycle ought to have gone to left side of the road immediately after noticing the incoming tractor trailer (offending vehicle). Tribunal itself has observed that breadth of the road is 20’ and in the cross examination of P.W.1, it has been elicited that accident occurred on account of right side of the tractor trailor having brushed the motor cycle driven by the claimant. Even if the tractor trailor which according to the insurer was travelling at a speed of 30 kms is to be accepted, the fact remains that accident in question occurred on account of right side of the tractor trailor dashing against motor cycle of the appellant and as such, no negligence can be attributed to the appellant – claimant. In that view of the matter, this court is of the considered view that Tribunal committed a serious error in fixing 20% liability on the claimant and same is liable to be set aside.
5. Hence, I proceed to pass the following:
JUDGMENT (i) Appeal is allowed in part.
(ii) Judgment and award dated 02.08.2012 passed by the Tribunal in MVC No.1530/2008 insofar as exonerating the insurer to indemnify the appellant – claimant to the extent of 20% is hereby set aside and entire liability is fixed on the insured to be indemnified by the insurer i.e., second respondent.
(iii) 20% of the compensation now ordered to be indemnified by second respondent – insurer shall be deposited before the jurisdictional Tribunal with interest within one month from the date of receipt of certified copy of this order.
(iv) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE *sp