IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH M.F.A.No.7681 of 2012 (MV) C/W M.F.A.No.7682 of 2012 (MV) IN M.F.A.No.7681 of 2012 BETWEEN:
SRI. K.N. SUDHEER, S/O K.N. NARASIMHA, AGED ABOUT 49 YEARS, RESIDING AT KADIDAL HAROGOLIGE VILLAGE, THIRTHAHALLI TALUK-577432 …APPELLANT (BY SRI: K.T. GURUDEVA PRASAD, ADVOCATE) AND:
1. S. NAGARAJA PRABHU, MAJOR, S/O DEVADAS PRABHU, R/O SEEBINAKERE THIRTHAHALLI TOWN-577432 2. T.S. AFSAR, S/O SATTAR SAB, AGED 42 YEARS, R/O INDIRA NAGARA, THIRTHAHALLI TOWN-577432.
3. THE NEW INDIA ASSURANCE CO. LTD., MALLAPPA COMPLEX, SHIVAMOGGA-577201.
4. NATIONAL INSURANCE CO. LTD., B.H. ROAD, SHIVAMOGGA-577201.
…RESPONDENTS (BY SRI: B.C.SEETHARAMA RAO, ADVOCATE FOR R3, SRI: JANARDHAN REDDY, ADVOCATE FOR R4, R1 & R2 ARE SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.06.2012 PASSED IN MVC NO.1338/2010 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-VI, SHIVAMOGGA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
IN M.F.A.No.7682 of 2012 BETWEEN:
SMT. M.T. SOWMYA W/O K.N. SUDHEER, AGED ABOUT 40 YEARS, RESIDING AT KADIDAL HAROGOLIGE VILLAGE, THIRTHHALLI TALUK-577432, SHIVAMOGGA DISTRICT – 577432.
…APPELLANT (BY SRI: K.T. GURUDEVA PRASAD, ADVOCATE) AND:
1. S. NAGARAJA PRABHU, MAJOR, S/O DEVADAS PRABHU, R/O SEEBINAKERE THIRTHAHALLI TOWN-577432 2. T.S. AFSAR, S/O SATTAR SAB, AGED 42 YEARS, R/O INDIRA NAGARA, THIRTHAHALLI TOWN-577432.
3. THE NEW INDIA ASSURANCE CO. LTD., MALLAPPA COMPLEX, SHIVAMOGGA-577201.
4. NATIONAL INSURANCE CO. LTD., B.H. ROAD, SHIVAMOGGA-577201.
…RESPONDENTS (BY SRI: B.C.SEETHARAMA RAO, ADVOCATE FOR R3, SRI: JANARDHAN REDDY, ADVOCATE FOR R4;
R1 & R2 SERVED, BUT UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.06.2012 PASSED IN MVC NO.106/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-VI, SHIVAMOGGA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
***** THESE MFA’S COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T These two appeals are filed by the claimants challenging the judgment and award passed in MVC.No.1338/2010 and MVC.No.106/2011, on the file of the I Addl. Senior Civil Judge & M.A.C.T.-VI, Shivamogga, questioning the dismissal of the claim petitions after assessing the compensation on the ground that accident was on account of the sole negligence on the part of the claimant in MVC.No.1338/2010.
For the sake of convenience, the parties would be referred to in terms of their status and rankings before the Tribunal.
2(i) The claimant in MVC.No.106/2011 who was the occupant of the Maruti Omni car bearing registration No.KA-14/M-9046 and on account of the accident, she has sustained injuries and hence, she made claim petition. The claimant in MVC.No.1338/2010 is the driver of the said car and also the owner of the car who filed claim petition for the injuries sustained by him, contending that he was earning Rs.1.00 lakh per annum and on account of the accident, both have sustained injuries and the claimant in MVC.No.1338/2010 has sustained permanent disability.
(ii) In pursuance of the claim petitions, the respondents have appeared through counsel and filed their objection statement. The third respondent is the insurer of mini bus and the fourth respondent is the insurer of the car. The third respondent – Insurance Company in the written statement has contended that the accident is on account of the sole negligence on the part of the driver of the car and disputed the other contents of the claim petitions and denied with regard to the nature of injuries and also avocation and income. The fourth respondent – Insurance Company took the defence that the accident is on account of the sole negligence on the part of the driver of the mini bus. There cannot be any claim against the fourth respondent.
(iii) The claimants in order to substantiate their claims, have examined themselves as PW.1 and PW.2. PW.1 also examined the Doctor as PW.3 and got marked documents Exhibits P1 to P149. The respondents have not adduced any evidence, however got marked the policy of the mini bus as Ex.R1.
(iv) The Court below after considering both the oral and documentary evidence, answered issue No.1 as “negative” in both the cases, issue No.2 in MVC.No.106/2011 as “affirmative” and while discussing issue No.3 in MVC.No.106/2011 and issue No.2 in MVC.No.1338/2010, though assessed the compensation, dismissed both the claim petitions. Hence, the present appeals are filed by both the claimants before this court.
3(i) The appellant in MFA.No.7682/2012 has contended that even though the material discloses that the accident was on account of sole negligence on the part of the driver of the mini bus, the Tribunal has committed an error in coming to the conclusion that the accident is on account of the rash and negligent driving by the driver of the Maruti Omni car. The Tribunal also has committed an error in not considering the fact that the complaint as well as the charge sheet have been filed against the driver of the mini bus and the driver of the mini bus has also pleaded guilty before the Criminal Court and the same itself is sufficient and conclusive proof to show that the accident was on account of rash and negligent driving of the driver of mini bus in respect of which the court below has committed an error. The Court below has erroneously considered Ex.P5 - IMV Report which discloses that the front portion on the right side of both the vehicles have been damaged and same has not been properly appreciated and the Tribunal also failed to take note of the fact that the driver of the mini bus has not stepped into the witness box to contradict the version of the petitioners and no evidence has been let in by the respondent No.3. The Tribunal has committed an error in taking note of the contents of the mahazar and hence, the very approach of the Tribunal is erroneous. It is also contended that the Tribunal has failed to take note of the nature of the injuries and only awarded compensation of Rs.15,000/- including the medical expenses of Rs.7,000/- and hence, it requires interference of the judgment and award of the Tribunal.
(ii) The appellant in MFA.No.7681/2012 also reiterated the very same grounds in respect of the conclusive conclusion of the Tribunal with regard to the negligence are concerned. It is also contended that the Tribunal has committed an error in awarding compensation of Rs.3,78,183/-, but ultimately dismissed the claim petition. Learned counsel contended that the compensation determined by the Tribunal in both the claim petitions is also very meagre and hence, it requires interference of this Court.
4. Learned counsel for the respondent No.3 in his arguments vehemently contended that the Court below while appreciating both the oral and documentary evidence considered the IMV Report – Ex.P5 and also mahazar – Ex.P2 and rightly comes to the conclusion that the accident has occurred due to negligence on the part of the driver of the car himself and hence rightly dismissed the claim petitions and there are no grounds to interfere with the order of the Tribunal. It is also contended that the Tribunal even while calculating the compensation, has taken note of the nature of injuries sustained by the claimants and also the documents produced before the Court, so also the evidence of the Doctor who has been examined as PW.3 and there are no grounds to interfere with the findings of the Tribunal.
5. Learned counsel for the respondent No.4 in his arguments vehemently contended that the complaint is filed against driver of the mini bus and after investigation, charge sheet is also laid against the driver of the mini bus and thereafter, the driver of the mini bus pleaded guilty before the Criminal Court and he has not been stepped into the witness box to rebut the evidence of the claimants with regard to the sole negligence on the part of the driver of the mini bus and he is the right person to be examined before the court to depose that the negligence is on the part of the driver of the car and same has not been done. Hence, the very approach of the Tribunal is erroneous.
6. Having heard the arguments of the respective appellants’ counsel and also respective respondents’ counsel and also keeping in view the contentions urged by both the parties, the points that arise for consideration of this Court are:-
1) Whether the Court below has committed an error in coming to the conclusion that the accident is on account of the sole negligence on the part of the driver of the car and whether it requires interference of this Court?
2) Whether the Court below has committed an error in dismissing both the claim petitions on the ground that the accident was on account of the sole negligence on the part of the driver of the car and whether it requires interference of this Court?
3) Whether the Court below has committed an error in not awarding just and reasonable compensation in MVC.No.106/2011 and whether it requires interference of this Court?
4) Whether the Court below has committed an error in not awarding compensation in MVC.No.1338/2010 and whether it requires interference of this Court?
5) What Order?
Point No.1 7. The contention of the appellants in both these appeals who are claimants before the Tribunal is that the Tribunal has committed an error in answering issue No.1 as “negative” with regard to the negligence is concerned. It is contended that there is no dispute with regard to the accident, but the Tribunal has committed an error in coming to the conclusion that the accident had occurred on account of negligence on the part of the driver of the car who is one of the claimants before the Tribunal. The contention of the respondent No.3 (insurer of mini bus) is that the Tribunal has considered both the oral and documentary evidence and has rightly come to the conclusion that the accident has occurred due to negligence on the part of the driver of the car himself and hence rightly dismissed the claim petitions and there are no grounds to interfere with the order of the Tribunal.
8. In order to re-appreciate the matter, it is necessary to consider the evidence available before the Court. PWs.1 and 2 are the claimants who are the occupants of the car and in their affidavit evidence in lieu of their chief examination, they have sworn to that the accident was on account of the sole negligence on the part of the driver of the mini bus which came in the opposite direction and dashed against the car. As a result, the car was damaged and both of them have sustained injuries. PW.1 was subjected to cross-examination by the respondent No.3. In the cross-examination, it is suggested that mini bus came from Udupi and he took the car towards right side of the road and in order to avoid the accident, the driver of the mini bus took the bus towards extreme left side of the road and dashed against the culvert. As a result, the bus was damaged to the extent of six feet and the said suggestion was denied. However, it is elicited that the right portion and middle portion of his car was damaged and further elicited that right portion of the bus was damaged. It is suggested that he took the car towards right side of the road and hence, the driver of the bus in order to avoid the accident, he took the bus towards extreme left side of road and dashed against the culvert and at that time the accident had occurred due to his negligence and the same was denied.
9. PW.2 - wife of PW.1 who is also an occupant of the car and in her evidence, she has reiterated the same and it is elicited in the cross-examination that the accident had occurred near the culvert and also same had occurred on the culvert. She cannot tell the length of the culvert and however, she says the width of the road is 18’. It is suggested that in order to avoid the accident, the driver of the mini bus took the bus towards extreme left side and dashed against the culvert and the witness says that she did not observe the same. It is suggested that her van was on the right side of the road and the same was denied. However, she volunteers that it was on the extreme left side of the road.
10. The respondents did not choose to adduce any evidence, either oral or documentary, against the materials placed before the Court by the claimants.
11. Keeping in view the oral evidence and documentary evidence, this Court has to consider the material available on record. On perusal of Ex.P1, the complaint is filed against the driver of the mini bus and the spot mahazar was also drawn in terms of Ex.P2. The other important document is Ex.P5 – IMV report and on perusal of Ex.P5, it discloses the nature of the damages sustained by both the vehicles. Ex.P5 discloses that mini bus has sustained damages namely, the right hand side body of the bus was pressed, right hand side bumper is pressed, right hand side fixture is pressed below driving door, right hand side head light damaged and left hand side body fixture is pressed. Ex.P5 further discloses that the car has sustained damages namely, front bumper, both indicator number plate damage, wind shield glass damage, right hand side head light damage, front body is pressed, front both doors is pressed, dash board damage, steering system damage and front rearview mirror damage. The claimants have also produced Ex.P8 order-sheet which discloses that the driver of the mini bus pleaded guilty and paid the fine amount. Now the oral and documentary evidence before the court is evidence of PWs.1 and 2 who are the claimants and the respondents did not choose to adduce any evidence. The respondents did not dispute the fact that the driver of the mini bus pleaded guilty in terms of Ex.P8. It has to be noted that an attempt is made while cross-examining PWs.1 and 2, that driver of the bus taking note of the car was coming towards right side, he took the bus towards extreme left side and dashed against the culvert. As a result, the bus was damaged and further suggestion was made that the driver of the car came towards right side and noticing the same, the driver of the mini bus took care to avoid accident. It is pertinent to note that if really the said defence is true and if the driver of the mini bus had taken the bus towards extreme left side and hit the culvert, the left portion of the bus ought to have been damaged and there are no damages on the left portion of the bus and damages are only on the right side of the bus. The only damage on the left side which is mentioned is that left side body fixture is pressed and there is no explanation with regard to the damages at Sl.Nos.1 to 4 that right hand side body is pressed, right hand side bumper is pressed, right hand side fixture is pressed below driving door and right hand side head light is damaged and this fact shows that right portion of the bus came into contact with the car which sustained extensive damages on both middle portion also right hand portion. It is appropriate to note that the court below has also not taken note of the damages caused to the bus in terms of Ex.P5 - IMV report and instead was carried away with Ex.P2 – spot mahazar. The same does not enlightens to prove the fact since the same would be drawn only at the spot after the accident.
12. It is also pertinent to note that in order to prove negligence of driver of the car, respondent No.3 ought to have examined the driver of the bus who is the right person to speak about the negligence on the part of the driver of the car. The driver of the mini bus pleaded guilty before the Criminal Court and the respondent No.3 has not chosen to rebut the evidence of PW.1 and 2 and also Ex.P8 which discloses that the driver of the mini bus has paid the fine before the court below. No doubt mere pleading guilty before the Court below itself is not sufficient. But in the case on hand, if really negligence is on the part of driver of the car, respondent No.3 ought to have examined the driver and rebutted the documentary evidence Ex.P8 under what circumstances the driver of the mini bus had pleaded guilty before the Criminal Court and there is no explanation on the part of respondent No.3. The Court below has committed an error in coming to the conclusion that the accident is on account of sole negligence on the part of the driver of the car only on the basis of Exhibit P2 and there is no cogent evidence to show the same. The Tribunal has lost sight of IMV report Ex.P5 and Exhibit P8. Nothing is discussed with regard to Ex.P8. Under the circumstances, I am of the opinion that the Tribunal has committed an error in answering issue No.1 as negative. Hence, point No.1 is answered as “affirmative”.
Point No.2 13. In view of the discussions made by me and also answering point No.1 as “affirmative”, reversing the findings of the Tribunal holding that the dismissal of the claim petitions is erroneous and hence, I answer point No.2 as “affirmative”.
Point No.3 14. The claimants in MVC.No.106/2011 questioned the quantum of compensation on the ground that only an amount of Rs.15,000/- is awarded including the medical expenses of Rs.7,000/-. The claimant has produced treatment certificate – Ex.P122 and the same is only in respect of claimant in MVC.No.106/2011. It shows that the claimant has suffered soft tissue injury of left hand and left leg injury. She was an outpatient and she has not taken treatment as inpatient in the hospital. Having considered the same, I do not find any reason to interfere with the order of the Tribunal for enhancing the compensation.
Point No.4 15. The claimant in MVC.No.1338/2010 contends that he has sustained permanent disability and he took treatment and he was subjected to surgery. The Tribunal in para 21 of the judgment, discussed with regard to the injuries suffered by him. It is noted that the claimant has suffered fracture of upper end of right tibia, abrasion over left hypochondrium, right tibial tuberosity, middle half of left leg and dorsum of left hand. He was initially treated at Thirthahalli General Hospital and thereafter he has taken treatment as an inpatient in KMC, Manipal. The claimant also in support of his case he has examined Doctor as PW.3 and PW.3 in his evidence has deposed that the claimant is unable to sit cross legged, fold the leg, squat or run. He has assessed the permanent disability at 29% in respect of his right lower limb and the Tribunal has taken 9% disability in respect of whole body i.e., 1/3rd in case of limb disability. The Tribunal has taken rightly 9% disability in respect of whole body and hence I do not find any ground to interfere with the findings of the Tribunal. The findings of the Tribunal with regard to the other heads also I do not find any reason to differ with the reasons assigned by the Tribunal.
In view of the discussions made above, I pass the following:-
ORDER (i) Both the appeals are allowed.
(ii) The impugned judgment and order of the dismissal of the claim petitions of the claimants passed by the Tribunal in M.V.C.No.1338/2010 and M.V.C.No.106/ 2011 dated 22nd day of June 2012 on the file of I Addl. Senior Civil Judge & M.A.C.T.-
VI at Shivamogga is set-aside, modifying the judgment of the Tribunal by allowing both the claim petitions.
(iii) The compensation awarded by the Tribunal in both the claim petitions is confirmed.
(iv) The Insurance Company i.e., respondent No.3 is directed to pay the compensation within eight weeks from today.
(v) The Registry is directed to send the LCR to the lower Court forthwith.
Sd/- JUDGE Bss.