IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA M.F.A.No.4542/2010 (MVC) C/W M.F.A.No.8900/2009 (MVC) IN M.F.A No.4542/2010 BETWEEN:
SRI. SHIVALINGAIAH S/O KEMPEGOWDA AGED ABOUT 60 YEARS R/AT NO.25, HEMAVATHI ROAD I STAGE, GRUHALAKSHMI COLONY BANGALORE – 560 079 ...APPELLANT (BY SRI. RAJANNA, ADV.) AND:
1. ABHISHEK S S/O SREEKANTAPPA AGED ABOUT 22 YEARS (DRIVER) NO.58 NANDINI LAYOUT, RAILWAY LAYOUT BANGALORE – 96 2. SREEKANTAPPA MAJOR S/O LATE PUTTAPPA R/AT NO.21/3, I MAIN ROAD SRIKANTESHWARANAGAR NEAR ASHOKA APARTMENTS BANGALORE – 560 096 ...RESPONDENTS (BY SRI. NAVEEN KUMAR G.S., ADVOCATE FOR SRI. S.B. MUKKANNAPPA ASSTS, ADV.s FOR R1 AND R2; SRI. ASHOK N PATIL, ADVOCATE FOR R3;
VIDE ORDER DATED 24.06.2013;
NOTICE TO R-1 AND R2 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2009 PASSED IN MVC NO.3714/2008 ON THE FILE OF XI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A No.8900/2009 BETWEEN:
1. CHI. ABHISHEK S S/O SREEKANTAPPA AGED ABOUT 21 YEARS 2. SHRI.SREEKANTAPPA AGED ABOUT 52 YEARS S/O LATE PUTTAPPA BOTH ARE RESIDING AT NO.21/3, I MAIN ROAD SRIKANTESHWARANAGAR NEAR ASHOKA APARTMENTS BANGALORE – 560 096 ...APPELLANTS (BY SRI.NAVEEN KUMAR G.S., ADV. FOR SRI. S.B. MUKKANNAPPA ASSTS., ADVs.) AND:
SRI. SHIVALINGAIAH S/O KEMPEGOWDA AGED ABOUT 59 YEARS R/AT NO.25, HEMAVATHI ROAD I STAGE, GRUHALAKSHMI COLONY BANGALORE – 560 079 ...RESPONDENT (BY SRI. RAJANNA, ADVOCATE) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2009 PASSED IN MVC NO.3714/2008 ON THE FILE OF THE MEMBER, MACT AND XI ADDITIONAL JUDGE, COURT OF SMALL CAUSES -12, BENGALURU, AWARDING A COMPENSATION OF RS.1,98,987/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant as well as the owner of the offending vehicle are in appeal challenging the judgment and award passed by Motor Vehicle Accident Tribunal, Bangalore City (for short ‘ Tribunal’) in MVC No.3714/2008.
2. The facts in brief are, the claimant filed the petition before the Tribunal claiming compensation for the accidental injuries suffered by him in a road traffic accident, which occurred on 24.04.2008 contending that while he was walking on the foot-path towards KLE college main gate, the rider of the Motor cycle bearing registration No. KA-02-EF-837 came from South to North side driven in a rash and negligent manner with high speed and dashed against him, due to which he sustained grievous injuries and incurred huge medical expenses besides suffering from pain and agony.
3. On service of notice, the owner of the offending vehicle entered appearance and contested the claim. It is also stated that the offending vehicle was not insured at the time of the occurrence of the accident.
4. On appreciation of the evidence on record, the Tribunal awarded a total compensation of Rs.2,48,734/- with interest at the rate of 6% p.a. from the date of petition till the date of payment and fixed the contributory negligence to an extent of 20% on the claimant, awarded a total compensation of Rs.1,98,987/- (80% of Rs.2,48,734/-)with interest at 6% p.a. from the date of the petition.
5. Aggrieved by the same, both claimants as well as the owner of the offending vehicle are in appeal.
6. Learned counsel Sri. Naveen Kumar G.S., appearing for the claimant would contend that the Tribunal erred in fixing the contributory negligence on the part of the claimant at 20% ignoring the police records which clearly establishes that the accident in question occurred only due to the negligence on the part of the driver of the offending vehicle. The crucial evidence to prove the negligence was the rider of the offending vehicle, who was not examined by the respondent-owner. In such circumstances, fixing 20% of contributory negligence on the part of the claimant is wholly unsustainable.
7. Learned counsel further submits that the quantum of compensation awarded by the Tribunal under different heads is meager and disproportionate to the nature and gravity of the injuries sustained by the claimant. Accordingly, he seeks for enhancement of compensation.
8. Learned counsel Sri. Rajanna, appearing for the owner of the offending vehicle would contend that the material evidence on record clearly discloses that the claimant was not walking on the road at the time of the accident. The accident occurred while the claimant was crossing the road and contributory negligence was fixed at 20% on the claimant is on the lesser side. The accident in question occurred due to the negligence on the part of the claimant while crossing the road, not following traffic rules, more over, it was not a Zebra crossing meant for pedestrians to cross the road. The claimant abruptly crossed the road, which was the main cause for the occurrence of the accident. Further the learned counsel submits that the quantum of compensation awarded by the Tribunal is excessive and the same requires to be reduced. Considering the nature of the injuries sustained by the claimant, he seeks for reduction of the compensation awarded.
9. Heard the learned counsel for the parties and perused the material on record. The occurrence of the accident and the injuries sustained by the claimant are not in dispute. As regards contributory negligence, it is relevant to refer to Ex.P.5- the sketch which discloses that the vehicle in question was coming from South to North and the accident occurred near the gate of the KLE College, while the claimant was crossing the road. It is apparent from the records that the claimant was crossing over a road which is not meant for pedestrians for crossing the road. In view of this, it cannot be said that it was only the driver of the vehicle in question, who was solely responsible for the accident.
10. Undisputedly, there was no Zebra crossing. In view of the fact that the claimant had crossed the road where he was not supposed to cross certain degree of contributory negligence will have to be attributed to him.
11. It is opt to refer to the book Charlesworth and Percy, in 7th Edition which has been referred to by this court in ILR 2004 KAR 1104, in the case of Koosappa Poojari Vs. K Sadabba and others, the relevant para reads thus:
“ A Road user must not presume to use the high way on the basis that the other users, whether drives or pedestrians, will be have with reasonable care, which common experience has shown to be a false assumption. In this regard Lord Uthwatt added:” a driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take”.
Pollock B.B. said:
“ It is the duty of persons who are driving over a crossing for foot-passengers which is at the entrance of a street, to driver slowly, cautiously and carefully: but it is also the duty of a foot-passenger to see due care and caution in going upon a crossing at the entrance of a street, so as not to get among the carriages, and thus receive injury.”
Thus, it is clear that it is the responsibility of the driver of the vehicle to keep a good look out and it is the equal responsibility of the person crossing the road to take precaution and to have a good look out. Considering this, proposition, it can be held that the apportionment of contributory negligence fixed at 20% on the claimant and 80% on the rider of the vehicle in question cannot be held to be unreasonable. It is a well settled legal position that contributory negligence means lack of care and precaution which an ordinary person would have taken in the circumstances of the case. The lack of said care and precaution being apparent on the face of the record, fixing of contributory negligence of 20% on the part of the claimant is approved. The quantum of compensation, awarded by the Tribunal being just and reasonable, the same do not call for any interference by this court. Hence both appeals stand dismissed.
Sd/- JUDGE Psg*