IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4456 OF 2014 (MV) BETWEEN Srinivasa N.
S/o N. Narayana, Lecturer in AVK College, R/at H.No.1645/08, Vidyanagar, Teacher Layout, 12th Cross, Davanagere – 577 001. ... Appellant (By Sri. R. Shashidhara, Advocate) AND 1. Neelappa Gowda S/o Pakirgowda Kannur, Aged about 51 years, Driver of KSRTC Bus, No.KA-22/F-6140, No.251, Naragunda Depot, R/o Karamudi Village, Rona Taluk, Gadag District – 582 101.
2. Divisional Controller, N-W KSRTC, Gadag Division , Gadag – 582 101. ... Respondents (By Sri. F.S. Dabali, Advocate for R2, Notice to R1 is served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 22.11.2012 passed in MVC.No.371/2008 on the file of the Principal Senior Civil Judge and MACT-IV, Davangere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA is coming on for Admission, this day, the court made the following:
J U D G M E N T The claimant is in appeal under Section 173 (1) of Motor Vehicles Act, not being satisfied with the quantum of compensation awarded by the Tribunal and also aggrieved by saddling 25% contributory negligence under the judgment and award dated 22.11.2012 in M.V.C. No.371/2008 on the file of Principal Senior Civil Judge & MACT-IV, Davangere.
2. Claimant filed the claim petition under Section 166(3) of the Motor Vehicle Act, claiming compensation for the damages caused to his vehicle in a road traffic accident which occurred on 15.04.2008.
3. It is stated that on 15.04.2008, when the claimant was traveling in his car bearing Reg.No.KA-01-N-5853, KSRTC bus bearing Reg.No.KA-27-F-1640 came in a rash and negligent manner and dashed to the claimant’s car. Due to which, the claimant’s car got damaged and it is stated that the claimant spent more than two lakhs for getting it repaired.
4. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their objection contending that the accident occurred solely due to negligence of the claimant. Further contended that the claim made by the claimant is excessive and exorbitant. Initially the claim petition came to be dismissed by the judgment and award dated 17.04.2010 on the ground that the claimant was not the RC owner of the vehicle. Aggrieved by the same, the claimant filed MFA No.6079/2010 before this Court. This Court by its judgment dated 10.08.2011 set aside the judgment and award remanding the matter for fresh disposal in accordance with law.
5. Claimant examined himself as PW.1 and also examined PW.2 owner of the car garage and got marked 23 documents as Ex.P.1 to P.23, whereas respondent No.1 examined RW.1 and got marked documents as Ex.R.1.
6. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.20,000/- and saddling 25% of contributory negligence on the claimant. Aggrieved by the same, the claimant is before this Court in this appeal.
7. Heard the learned counsel for the appellant and learned counsel for the respondent - Corporation. Perused the material on record.
8. Learned counsel for the appellant would submit that the compensation awarded by the Tribunal for the damages to the vehicle is on the lower side when compared to the damages to the car and the evidence on record. It is his submission that the claimant had examined PW.2 - owner of the car garage, where the car got repaired. He also submits that Ex.P.8 is the estimation and Exs.P.9 to 22 are the bills in respect of the repair carried on the vehicle. The Tribunal ignoring these bills, awarded only Rs.20,000/-. Thus, he prays for enhancement of compensation considering the bills at Exs.P.9 to 22. Further, learned counsel submits that the Tribunal committed an error in saddling 25% of contributory negligence on the claimant. It is his submission that there is no evidence on record to suggest that the claimant contributed his negligence towards occurrence of the accident. He further submits that the charge sheet has been filed against the driver of the KSRTC bus and the accident had occurred solely due to negligent driving of the driver of the KSRTC bus. Thus, he prays for setting aside the contributory negligence of the claimant.
9. Per contra, learned counsel for the respondent - Corporation would submit that the compensation awarded by the Tribunal is just compensation which needs no interference by this Court with the judgment and award. Learned counsel relies on Ex.P.4 - IMV report and submits that the said report discloses the damages caused to the car and accordingly, the Tribunal has awarded the compensation. It is his further submission that the claimant was driving the vehicle also contributed his negligence towards occurrence of the accident as such, the Tribunal has rightly saddled 25% contributory negligence on the claimant. Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsels for the parties and on perusal of the material on record including certified copies of the documents and deposition made available during the hearing, following points arises for consideration in this appeal;
a) Whether the Tribunal was justified in saddling 25% contributory negligence on the claimant?
b) Whether the claimant would be entitled for enhancement of compensation towards damages caused to the vehicle?
Answer to the above points would be in the negative and in the affirmative respectively for the following reasons.
11. The accident occurred on 15.04.2008 involving Car bearing Reg.No.KA-01-N-5853 and KSRTC bus bearing Reg.No.KA-27-F-1640 and accidental damages caused to the car are not in dispute in this appeal. The claimant is in appeal aggrieved by saddling 25% of contributory negligence to the accident and also aggrieved by the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
12. The Tribunal saddled 25% of contributory negligence on the claimant on the ground that there is certain negligence on behalf of the claimant. There is no evidence on record to indicate or attribute contributory negligence on the part of the claimant. Admittedly, the charge sheet is filed against the driver of the KSRTC bus. In the absence of any material or evidence on record, the Tribunal could not have saddled the contributory negligence on the claimant on the ground that it finds certain negligence on the part of the claimant. Therefore, the contributory negligence saddled on the claimant at 25% is set aside.
13. The claimant states that the compensation awarded towards damages caused to the vehicle at Rs.20,000/- is on the lower side. He submits that PW.2, the owner of the car garage was examined and he states that the nature of the damages caused and repairs carried to the vehicle. But when Ex.P.4 – IMV report is perused, it is seen that the damages caused to the car as follows;
1. Front wind screen glass broken.
2. Front shape left side corner pressed damaging front left fender, left head light, left side of the front bumper.
3. Rear left fail lamp assembly damaged.
Ex.P.8 – Estimate of the garage would indicate the estimation for the damages caused as per IMV report as follows;
Thus, the total sum of the above would be Rs.20,997/- and in addition to that, the claimant would have incurred labour charges for the above repair. Thus, I am of the view that the claimant would be entitled for another Rs.10,000/- as ‘Global Compensation’ in addition to Rs.20,000/- awarded by the Tribunal.
14. Thus, the claimant would be entitled for total compensation of Rs.30,000/- as against Rs.20,000/- awarded by the Tribunal towards damages caused to the vehicle. The respondent-Corporation shall deposit the entire amount of Rs.30,000/- before the Tribunal from the date of receipt of certified copy of this order.
The judgment and award of the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
The claimant would be entitled for interest only on the enhanced compensation of Rs.10,000/-. This Court by its order dated 21.06.2016 condoned the delay of 496 days in filing the appeal subject to the condition that the claimant would not be entitled to interest for the delayed period in case he succeeds in the appeal. Accordingly, claimant would not be entitled for interest for the delayed period of 496 days.
Sd/- JUDGE HA/-