IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY M.F.A.No.6444 OF 2012 (MV) BETWEEN:
Regional Manager, United India Insurance co.Ltd., Regional Office, # 25, Shankaranarayana Building, M.G. Road, Bangalore – 560 001 Now situated at 5th & 6th Floor, Krishi Bhavan, Nrupathunga Road, Bangalore – 560 001.
(By Sri. A.N. Krishnaswamy, Advocate) AND 1. Shivanand B., S/o. Borappa, Now aged about 37 years R/at # 526, 7th Cross, 8th Main Gokula, Yeshwanthpur, Bangalore – 560 022.
2. Shivaprasad Mallikarjuna V.N., Age: Major, r/o # 230, Thindlu Taluk, V.R. Pura, Bangalore – 560 097 (By Smt. Indumathi S.R., Adv. for C/R-1; R2 – served) .. Appellant .. Respondents This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:23.02.2012 passed in MVC No.239/2009 on the file of the VI Additional Judge, Court of Small Causes, MACT, Bengaluru, awarding a compensation of Rs.6,13,400/- with interest @ 6% P.A. from the date of petition till realization.
This MFA coming on for Admission this day, the Court delivered the following:
J U D G M E N T The present appellant –United India Insurance Co. Ltd. (hereinafter referred to as “Insurance Company” for brevity) was respondent No.1, in the VI Additional Judge, Court of Small Causes and Motor Accident Claims Tribunal at Bangalore City, (hereinafter referred to as “Tribunal” for brevity) against which the present second respondent, who is the first respondent herein/petitioner had instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “M.V.Act” for brevity), seeking compensation of a sum of `15.00 lakhs for the injuries alleged to have been sustained by him in a road traffic accident said to have occurred on 29-09-2008.
2. According to the claimant before the Tribunal, on 29-09-2008 at about 6:30 a.m., while he was standing at the extreme left side of the road, in order to cross the said road at Lottegollahalli junction Ring Road, Bengaluru, a Tata Sumo motor vehicle bearing Registration No.KA-50/0286 came from Hebbala Flyover towards BEL and dashed against him, causing an accident. The said vehicle was being driven at high speed and in a rash and negligent manner by its driver.
The claimant has further stated that in the said accident, he sustained grievous injuries and after taking first aid treatment at Drive Nursing Home, was shifted to Sparsh Hospital, Bengaluru, where he took treatment as an in-patient for about 49 days, for which he has spent not less than `3,50,000/- towards medical expenses. Stating that prior to the accident, he was working as Sales Executive and earning a sum of `7,500/- per month and due to the accident, he has lost his income, he has claimed a sum of `15.00 lakhs as compensation for the injuries sustained in the road traffic accident, from the appellant - Insurance Company and owner of the offending vehicle who were arrayed as Respondent Nos.1 and 2 respectively before the Tribunal.
3. The Tribunal, after recording the evidence led before it and perusal of the material placed before it, by its judgment dated 23-02-2012 allowed the claim petition in part, awarding compensation of a sum of `6,13,400/- holding both the respondents before it jointly and severally liable to pay the said amount together with interest there upon at 6% p.a. from the date of petition till the date of realisation.
4. Challenging the said judgment and award passed by Tribunal, the appellant - Insurance Company has preferred this appeal.
5. Learned counsel for the appellant – Insurance Company, while reiterating the contention taken by the appellant in its memorandum of appeal, submitted that the alleged offending vehicle has been falsely implicated in the matter for which the complainant had taken two months’ time to file the police complaint with respect to the road traffic accident. Further, MLC register extract also has not been produced by them. There are discrepancies with respect to the date of accident and also the treating Doctor has not been examined.
The learned counsel for Insurance Company further submitted that the Tribunal has ignored that neither the driver nor the owner of the vehicle intimated the Insurance Company immediately after the alleged accident about the involvement of their vehicle in the road traffic accident, though the same was required under Section 134 (c) of the M.V. Act.
Finally stating that the Tribunal has also ignored the fact that there was contributory negligence on the part of the claimant in the accident, as such, some percentage of liability also be fixed upon the claimant, the learned counsel prayed for allowing the appeal.
6. Learned counsel for the first respondent/ claimant in her argument submitted that the Tribunal after going through the evidence led before it and the materials produced, has rightly held that the accident in question has occurred involving the offending vehicle itself, i.e. Tata Sumo bearing Registration No.KA-50/0286 and that the claimant has sustained injuries. It is based upon the evidence, both oral and documentary, that the Tribunal has awarded the compensation under various heads which does not warrant any interference at the hands of this Court.
7. The appellant does not dispute that a road traffic accident has occurred on 29-09-2008 at about 6:30 a.m. at the place shown in the claim petition.
However, it’s contention is that the motor vehicle, i.e. Tata Sumo bearing Registration No.KA-50/0286 has been falsely implicated in the matter only to make claim against the appellant - Insurance Company.
8. In that regard, the main point canvassed by the learned counsel for the appellant is about the alleged delay in lodging the complaint before the police with respect to the accident. No doubt according to the complaint, the accident in question has occurred on 29-09-2008 at 6:30 a.m. However, a complaint with respect to the said accident came to be lodged with the jurisdictional police only on 19-12-2008 at 11:00 a.m. Thus, there was more than two months nineteen days delay in lodging the complaint. In that connection, the claimant who got himself examined as PW-1 in the Court below has given a reason that from the date of accident, he has been in constant touch with the driver and owner of the offending vehicle through his friend one Sri. Lokesh and that the said driver and owner of the offending vehicle were constantly promising him that they would meet all his medical expenses and would take care of him and that he should not lodge any police complaint with respect to the accident. It is believing their assurances that he did not lodge any police complaint, at the earliest. The said witness withstanding his cross-examination made by the other side, has adhered to his original version. Added to that, the documents produced by him, more particularly, the copy of FIR at Ex.P1, copy of his complaint to the Police at Ex.P2, copy of the charge sheet at Ex.P3, copy of rough sketch at Ex.P4, copy of Mahazar at Ex.P5 and copy of Inspector of Motor Vehicle Report at Ex.P6, would go to show that after registration of the complaint, the Police have conducted an investigation and have filed a charge sheet against the driver of the very same Tata Sumo vehicle bearing Registration No.KA- 50/0286 for the offence punishable under Sections 279 & 338 of Indian Penal Code, 1860 and Sections 134 (a) and (b) and 187 of the M.V. Act.
9. Had really it was the contention of the appellant that the said vehicle was falsely implicated in the matter, though it has not challenged the charge sheet (Ex.P3), which has shown that it was the vehicle Tata Sumo bearing registration number KA-50-0286 which was the offending vehicle in the accident, but still, the appellant could have summoned the material witnesses who have seen the occurrence of accident or at least the Investigating Officer who has filed the charge sheet and examined him to disprove his contention that it was the Tata Sumo bearing Registration No.KA-50/0286 which was the offending vehicle which caused the accident in question. Except an official from the Insurance Company entering the witness box as RW-1 and giving his evidence denying the contents of the claim petition, no effort has been made by the appellant to weaken the case of the claimant. Despite having sufficient opportunity, since the appellant has not made any effort in that regard, the evidence that has been led by the claimant regarding occurrence of accident and he sustaining injuries in it, establishes that the accident in question has occurred on the date, time and place and in the manner, as alleged in the claim petition. The Wound Certificate at Ex.P7 and the in-patient record and out patient slip at Ex.P14 along with the out patient record and X-ray at Ex.P-15 further go to show that in the said accident, the claimant had sustained the injuries.
10. Further, the contention of the appellant that neither the driver nor the owner of the vehicle intimated the Insurance Company about the occurrence of the accident though they had a duty to inform the same under Section 134 of the M.V. Act, also would not take away the case of the claimant who has placed material to show that the alleged road traffic accident has occurred involving the vehicle, i.e. Tata Sumo bearing Registration No.KA- 50/0286, as such, the first and main contention of the appellant that the vehicle in question has been falsely implicated in the accident cannot be accepted.
11. The second and the last point of argument of the learned counsel for the appellant is that the quantum of compensation awarded apart from being on higher side, the Tribunal has also not considered the contributory negligence of the claimant in the occurrence of the accident.
12. After evaluation of the evidence placed before it, the Tribunal has awarded the compensation under the following heads and with the amount mentioned against them.
food and nourishment Total: 6,13,400/-
13. The claimant apart from examining himself as PW-1, has also examined two medical Doctors as PW-2 and PW-3 to show that he had sustained grievous injuries in the accident in question and had also suffered permanent partial disability which has disabled him from pursuing his avocation. As such, apart from the normal consequences like pain and agony, loss of amenities and incurring medical expenses due to accident, he was also deprived of his future income. Though RW-1 has denied the same, the evidence of RW-1 was confined only in making denial suggestions and nothing more. However, the Tribunal, after appreciating both oral and documentary evidence placed before it by the parties including the Wound Certificate, Discharge summary, Salary Certificate of the claimant, photographs of the claimant said to have been taken while he was under treatment and good number of medical bills and medical prescriptions, radiological report, has awarded compensation under different heads, as observed above. The said quantum of compensation awarded by it does not appear to be on the higher side.
14. After considering the medical information regarding the alleged disability of the claimant which is said to be of 57% to the particular lower limb, the Tribunal has reduced the said percentage to 22% while applying it to the whole body. So also, it has considered only `5,000/- as the monthly income of the claimant as against the claim at `7,500/- per month made by him. Thus, the quantum of compensation awarded by Tribunal cannot be held to be on the higher side.
15. However, while appreciating the matter of occurrence of accident, what the Tribunal failed to notice was about the alleged contributory negligence on the part of the claimant. Though the claimant has stated both in his claim petition as well as in his Examination-in-chief that, at the time of accident, he was standing on the foot path in order to cross a public road, but in his cross-examination, while answering the questions put by the Insurance Company, he is shown that he was crossing the road where there was no zebra crossing. The sketch prepared by the Investigating Officer depicting the scene of occurrence of the accident which is marked by none else than the claimant himself at Ex.P4 would also go to show that despite there being four feet wide foot path, the claimant was on the road, two feet away from the foot path, where the accident has occurred. Thus, the statement elicited in the cross- examination of PW-1 that at the time of accident, he was crossing the road is further corroborated by the rough sketch at Ex.P4 produced by him. When as a pedestrian, he was crossing the road, it was required of him to see the traffic and its movement and cross the road, which as could be seen from the evidence of the parties, the claimant has not followed. Therefore, in the accident that has occurred, there is contribution of the negligence on the part of the claimant also.
16. Considering the facts and circumstances of the case, I am of the opinion that the said percentage of contributory negligence on the part of the claimant can be fixed at 15%. Accordingly, instead of `6,13,400/- as compensation awarded to the claimant, he would be entitled for a sum of `5,21,390/- after deducting `92,010/- towards the share of his contributory negligence at 15%.
17. Since the Tribunal has not considered the said aspect, the entitlement for compensation by the claimant is required to be deducted at 15% than what is awarded to him. It is only to that extent, the impugned judgment under appeal deserves interference. Otherwise I do not find any good ground to set aside the entire judgment under appeal though prayed by the learned counsel for appellant/Insurance Company.
18. Accordingly, I proceed to pass the following:-
O R D E R The appeal filed by appellant/Insurance Company is allowed in part;
The impugned judgment and award passed by the VI Additional Judge, Court of small Causes and M.A.C.T. at Bengaluru City dated 23-02-2012 in M.V.C.No.239/2009 is hereby modified to the extent that the total amount of compensation awarded by Tribunal at `6,13,400/- is reduced to a sum of `5,21,390/-.
The rest of the portion of the judgment and award under appeal with respect to holding both respondents therein jointly and severally liable to pay the said compensation together with interest at the awarded rate there upon and the terms regarding deposit and release of amount shall all remain unaltered.
Draw the modified award accordingly.
The amount in deposit by the appellant – Insurance Company in the Registry shall be transmitted to the Tribunal without delay;
Registry to transmit a copy of this judgment along with Lower Court records to the Tribunal, without delay.
Sd/- JUDGE BMV*