IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.1935 OF 2018 (MV) BETWEEN:
DEVARAJU S/O NANJUNDAIAH AGED ABOUT 32 YEARS, R/AT SAMPIGE, DANDINASHIVARA HOBLI, TURUVEKERE TALUK, NOW RESIDING AT C/O 1ST MAIN ROAD, JAYANAGARA WEST TUMAKURU CITY – 572 101. ... APPELLANT (BY SRI.SHANTHARAJ K, ADV.) AND:
1. SAMUEL JESUDAS A S/O JAYARAO A AGED ABOUT 37 YEARS, R/AT NO.3/2, 3RD A MAIN RATANSINGH LAYOUT KAVALBYRASANDRA, R.T. NAGARA, BENGALURU – 560 032.
2. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER, 4TH & 5TH FLOOR, IFCO TOWER, PLOT NO.3, SECTOR-29, GURGAON – 122 001. ... RESPONDENTS (BY SRI.E I SANMATHI, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH V/O DTD:28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:15.07.2017 PASSED IN MVC NO.298/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The learned counsel for the appellant has filed a memo seeking dispensation of Notice respondent No.1. Memo is taken on record. Notice to Respondent No.1 dispensed with.
2. For the injuries suffered in the road traffic accident on 31st August, 2015, the injured made claim petition before the II Additional District Judge and Motor Accident Claims Tribunal, Tumakuru. The Tribunal, by its judgment and award dated 15th July 2017 passed in MVC No.298 of 2016 awarded compensation of Rs.1,21,706/- and fixed 50% negligence on the petitioner. Aggrieved by the same, the appellant is before this Court.
3. The learned counsel for the appellant submits that the respondent-Insurer mere taking a contention before the Tribunal that the claimant was under the influence of alcohol at the time of accident, nothing has been as regards negligence or it has examined anyone or the author of the said document that he was under the influence of alcohol. Hence he submits that the fastening of 50% negligence on the appellant is an error. The learned counsel further submits that the compensation awarded by the Tribunal is on the lower side. He prays for enhancing the compensation suitably.
4. The learned counsel for the respondent supports the judgment and award of the Tribunal and submits to dismiss the appeal. He submits that the Tribunal based on the oral and documentary evidence has fixed the negligence on the appellant and the same cannot be found fault with.
5. Heard the learned counsel for the parties. Accident is not in dispute. It is the finding of the learned Tribunal that as per the evidence of Doctor and Medical report, the appellant was found intoxicated. Hence, the negligence of 50% has been fastened on the appellant. In this regard, it is submitted that though it is referred that the appellant was under the influence of alcohol, there is no finding to that effect as to whether the appellant had the permissible limit of alcohol or was it excess. In the absence of any such finding, negligence cannot be fixed on the rider merely because of the report that he was under the influence of alcohol. Hence, fastening of 50% negligence on the appellant is unwarranted. Accordingly, the entire liability is fastened on the Insurer.
6. As regards the compensation is concerned, the Tribunal has awarded just compensation and the same does not call for interference.
With these observations, appeal is partly allowed.
Sd/-
ACTING CHIEF JUSTICE lnn