IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.9358/2013 C/W M.F.A.No.10456/2013 (MV) M.F.A.No.9358/2013 BETWEEN:
SRI VELU S/O VENKATESH AGED ABOUT 42 YEARS R/AT NO.22/1, 3RD CROSS LINGAIAHANAPALYA HALASURU BENGALURU-560008.
(BY SRI.MAHADEVA SWAMY P, ADV.) AND:
1. THE MANAGER SHRIRAM GEN. INSURANCE CO. LTD., NO.S-5, 2ND FLOOR MONARCH CHAMBERS INFANTRY ROAD SHIVAJINAGAR BENGALURU-01.
2. HAZRATH ALI S/O NAZEER SAB NO.139, JAI BHEEM NAGARA ...APPELLANT HARIHARA DAVANAGERE DIST.-577601.
3. MANAGING DIRECTOR ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION MUNEERABAD HYDERABAD-500002 ANDHRA PRADESH STATE.
…RESPONDENTS (BY SRI.A N KRISHNA SWAMY, ADV. FOR R1 R2 & R3- NOTICE D/W V/O DT:11.09.2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2013 PASSED IN MVC NO.7802/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSE JUDGE & XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.10456/2013 BETWEEN:
THE MANAGER SHRIRAM GENERAL INSURANCE CO. LTD., NO.S-5, II FLOOR MONARCH CHAMBERS INFANTRY ROAD SHIVAJINAGAR BANGALORE-560001.
NOW REP. BY LEGAL OFFICER SHRIRAM GENERAL INSURANCE CO.LTD., 3RD FLOOR, S & S CORNER BUILDING OPP: BOWRING & LADY CURZON HOSPITAL, SHIVAJI NAGAR BANGALORE-560001.
(BY SRI. A N KRISHNA SWAMY, ADV.) AND:
1. V VELU S/O VENKATESH NOW AGED ABOUT 43 YEARS R/AT NO.22/1, 3RD CROSS LINGAIAHANAPALYA HALASURU BANGALORE-560008.
2. HAZRATH ALI S/O NAZEER SAB MAJOR # 139, JAI BHEEM NAGARA HARIHARA DAVANAGERE DISTRICT-577001.
3. MANAGING DIRECTOR ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION MUNEERABAD HYDERABAD-500001 ANDHRA PRADESH STATE.
...APPELLANT …RESPONDENTS (BY SRI.P MAHADEVA SWAMY, ADV. FOR R1 SRI D. VIJAYAKUMAR, ADV. FOR R3 R2 – NOTICE D/W V/O DT:04.02.2019) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2013 PASSED IN MVC NO.7802/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSE JUDGE, & 28TH ACMM, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.4,01,658/- AND ETC.
THESE M.F.A.s COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both claimant and insurance company are in appeals against the judgment and award dated 02.09.2013 in MVC No.7802/2011 on the file of the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. Claimant’s appeal for enhancement of compensation whereas the insurer is in appeal on the ground that the Tribunal has failed to consider the contributory negligence on the part of the driver of the APSRTC bus.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in a road traffic accident. It is stated that on 21.09.2011, when the claimant was traveling in APSRTC bus bearing registration No. AP-28/Z-5000 on Chittoor-Tirupathi road, a lorry bearing registration No. KA-16/A-9719 came from opposite direction in a high speed and in a rash and negligent manner and dashed to the APSRTC bus, due to which, the claimant sustained grievous injuries. Immediately he was shifted to Sri. Venkateshwara Institute of Medical Sciences, Thirupathi where he took treatment and spent huge amount towards treatment.
4. On issuance of notice, respondent Nos.1 and 3 appeared before the Tribunal and filed their written statement, while the 2nd respondent remained absent and was placed exparte. The first respondent/ insurance company in its statement contended that the lorry bearing registration No.KA-16/A-9719 was not at all involved in the accident. Further it denied the accident on account of rash and negligent driving of the lorry in question by its driver. It is also contended that the accident occurred on account of contributory negligence on the part of both the drivers of the lorry and APSRTC bus. But, the first respondent admitted the issuance of policy in respect of the lorry in question. It is also contended that the driver of the offending lorry was not holding driving licence as on the date of accident. The third respondent/APSRTC filed its statement contending that the accident occurred solely due to the rash and negligent driving of the lorry by its driver besides denying all other petition averments.
5. The claimant got himself examined as P.W.2 and also examined P.W.3/Doctor apart from marking the documents as Ex.P1 to Ex.P15. However, the respondents have not examined any witnesses nor marked any document in support of their case.
6. The Tribunal, on appreciating the material both oral and documentary on record, awarded total compensation of Rs.4,01,658/- with interest at the rate of 6% p.a., from the date of petition till realization on the following heads:
Total Rs.4,01,658/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.5,000/- p.m., and assessed the whole body disability at 14%. Further, saddled the entire liability on the first respondent/insurer of the lorry in question. The insurer is in appeal aggrieved by saddling the entire liability on them, whereas the claimant is in appeal praying for enhancement of compensation, being dissatisfied with the quantum of compensation awarded by the Tribunal.
7. Heard the learned counsel for the appellant/insurer and learned counsel for the respondent/claimant. Perused the material on record including the lower court records.
8. Learned counsel for the insurer would submit that the Tribunal failed to consider the contention of the insurer that the accident occurred due to contributory negligence on the part of drivers of both the lorry bearing registration No.KA-16/A-9719 and APSRTC bus bearing registration No.AP-28/Z-5000. The Tribunal also committed an error in saddling the entire liability on the insurer of the lorry. Further, he submits that the Tribunal failed to appreciate the sketch which is enclosed to the statement of one Ranganath, which is marked as Ex.P1(a) and submits that the accident had taken place in the middle of the road. Hence, it is a head-on collision. Since, it is a head-on collision, learned counsel for the insurer invited the attention of this Court to a portion of cross-examination of P.W.1 and submits that the Tribunal failed to appreciate the evidence in proper perspective. It is his submission that both the drivers of lorry and APSRTC bus have to take due care having failed to do so, the accident had taken place in the morning hours at 4.00 a.m., on a highway between two heavy vehicles, which the Tribunal lost sight of. Thus, he submits that the driver of APSRTC bus also contributed his negligence towards occurrence of the accident.
9. With regard to quantum of compensation, learned counsel for the insurer would submit that the Tribunal has rightly assessed the income of the claimant at Rs.5,000/- p.m., and the claimant has not placed on record any material to establish his income. Further he submits that the Tribunal assessed the whole body disability at 14% taking into consideration the disability of 42.5% to a particular limb. Thus, he prays for allowing the appeal.
10. Per contra, learned counsel for the claimant would submit that the accident had taken place solely due to the negligence of the driver of the lorry and the Tribunal has rightly saddled the entire liability on the insurer of the lorry. He submits that the complaint was filed against the driver of the lorry and subsequently, charge sheet was also filed against the driver of the lorry. The insurer of the lorry has failed to examine either the driver of the lorry or the APSRTC bus. In the absence of any evidence to suggest that the accident had occurred due to contributory negligence of drivers of both lorry and bus, the Tribunal is justified in saddling the liability on the insurer of the lorry. With regard to quantum of compensation, learned counsel for the claimant would submit that the income of the claimant assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side. He submits that the claimant was working as delivery boy and earning Rs.8,500/- p.m., he was aged about 41 years. He further submits that the claimant had placed on record the salary certificate Ex.P12 to establish the income. But, the Tribunal without appreciating the document and the evidence of P.W.2, herein assessed the income at Rs.5,000/- p.m., which is on the lower side. Further, he submits that the compensation awarded on various heads are also on the lower side and prays for enhancement of compensation.
11. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in saddling the entire liability on the appellant/insurer?
(ii) Whether the claimant would be entitled for enhancement of compensation?
12. Answer to the above points would be in the affirmative for the following reasons:
The accident that had taken place on 21.09.2011 involving the APSRTC bus bearing registration No.AP- 28/Z-5000 and lorry bearing registration No.KA-16/A- 9719 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The insurer is in appeal aggrieved by saddling the entire liability without considering contributory negligence on the part of the driver of the APSRTC bus, whereas the claimant is in appeal praying for enhancement of compensation. Learned counsel for the appellant/insurer submitted that the Tribunal failed to consider the contention of the insurer that the accident had occurred due to the contributory negligence on the part of the drivers of the bus and lorry. In support of his contention, he has relied upon the sketch of the spot of accident. A perusal of the sketch which is on the record as enclosure to Ex.P1(a) statement of one Ranganath would disclose that the lorry is stationed on the left side of the road on East to West direction whereas the sketch would show that the accident had taken place at 3/4th of the road on the right side of East to West direction. It is not in the middle of the road as contended by the insurer. But, on careful scrutiny of sketch, I am of the view that the sketch would not give true picture of the accident spot. It is not depicted in the sketch where the accident had taken place. The evidence of P.W.1 would disclose that the accident had not taken place in the middle of the road. But, according to P.W.1, the accident occurred at edge of the road. It is not stated as to whether it is right side edge or left side edge of the road. P.W.1 has denied the suggestion that the driver of the APSRTC bus had also contributed to the occurrence of the accident.
13. Counsel for Respondent No.3/APSRTC had cross- examined P.W.1. The cross-examination portion of P.W.1 by respondent No.3 reads as follows:
“I was also traveling along with the deceased in the APSRTC bus. We were proceeding to Tirupathi. There were about 20 passengers in all. About 4 to 5 passengers sustained grievous injuries. The driver of the APSRTC bus was also injured. The road near the accident spot was straight. It is true that the driver of the APSRTC bus was driving the vehicle by following traffic rules and regulations on the correct side of the road. It is true that the driver of the lorry had come at high speed in a rash or negligent manner from the opposite side and dashed against our bus. It is true to say that accident had occurred solely due to rash or negligent driving of the lorry driver. I know that one of the passengers in the bus had lodged complaint against the lorry driver and later police had filed charge sheet against the said lorry driver.”
14. The claimant examined himself as P.W.2. Cross- examination of P.W.2 by respondent No.3 reads as follows:
“I was traveling along with my family members in the APSRTC bus. We were proceeding to Tirupathi. There were about 25 passengers in all. About 4 to 5 passengers sustained grievous injuries. The driver of the APSRTC bus was also injured in the accident. The road near the accident spot was straight. It is true that the driver of the APSRTC bus was driving the vehicle by following traffic rules and regulations on the correct side of the road. It is true that the driver of the lorry had come at high speed in a rash or negligent manner from the opposite side and dashed against our bus. It is true to say that accident had occurred solely due to rash or negligent driving of the lorry driver. I know that one of the passengers in the bus had lodged complaint against the lorry driver and later police had filed charge sheet against the said lorry driver.”
The evidence of P.W.2 and P.W.3 would establish that the accident had taken place solely due to the negligent driving of the driver of the lorry who had come in a high speed and rash and negligent manner from the opposite side and dashed to the bus. Moreover, the complaint was filed against the driver of the lorry and subsequently on investigation charge sheet was also filed against the driver of the lorry. The insurer has not made any effort to place on record any independent evidence in support of its contention. The non- examination of driver of either the lorry or the bus is fatal to the contention of the insurer. Thus, I am of the view that the Tribunal has rightly saddled the entire liability on the driver of the lorry. The Tribunal is justified in coming to the conclusion that the accident had occurred solely due to the negligent driving of the driver of the lorry and consequently, saddled the liability on the insurer of the lorry.
15. With regard to quantum of compensation it is to be noted that the accident is of the year 2011. The claimant states that he was earning a sum of Rs.5,000/- p.m., working as delivery boy. He has placed on record Ex.P12/employment and salary certificate. But he has not examined any person to substantiate the said document. In the absence of acceptable material to establish his income, the Tribunal assessed the income of the claimant notionally at Rs.5,000/- p.m., but the same is on the lower side. This Court and the Lok Adalath, while settling the accidental claims of the year 2011 would normally assess the notional income at Rs.6,500/- p.m. In the instant case also, in the absence of any acceptable material to establish the income of the claimant, it would be appropriate to assess the income of the claimant at Rs.6,500/- p.m. The Doctor/P.W.3 examined on behalf of the claimant states that the claimant had suffered 42.5% disability to a particular limb. The Tribunal taking note of the nature of injuries and evidence of P.W.3/Doctor and medical records has rightly assessed the whole body disability at 14%, which needs no interference. Thus, the claimant would be entitled for the following modified compensation:
Thus, the claimant would be entitled for total compensation of Rs.4,41,438/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.4,01,658/-.
16. Accordingly, the MFA No.10456/2013 filed by the insurer is dismissed and MFA No.9358/2013 filed by the claimant is allowed in part. The judgment and award dated 02.09.2013 passed in MVC No.7802/2011 on the file of the Motor Accident Claims Tribunal, Bangalore is modified to the above extent. Thereby, the claimant is entitled to enhanced compensation of Rs.39,780/-.
The amount in deposit in MFA No.10456/2013 be transmitted to the concerned Tribunal.
Sri.D.Vijaykumar, learned counsel is permitted to file vakalath for Respondent No.3 within two weeks from today.
Sd/-
JUDGE mpk/-* CT:bms