IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1951 OF 2014 (MV) BETWEEN:
SRINIVASA @ SEENA S/O BHOJA NAIK, AGED ABOUT 25 YEARS, AT PRESENT NO WORK (EARLIER WORKING AS AUTORIKSHAW DRIVER AND AGRICULTURIST) R/O BIDARAHALLI VILLAGE, HONNALI TALUK DAVANGERE DISTRICT. ... APPELLANT (BY SRI.N.K.SIDDESWARA, ADVOCATE) AND:
1. THIPPESHI S/O VENKATAPPA, AGE:MAJOR, DRIVER OF VANI BUS BEARING REG.NO KA-20-AA-4444, R/O MASUR VILLAGE, HIREKERUR TALUK, HAVERI DISTRICT – 581 110.
2. SIRASAPPA GOGI S/O VASAPPA GOGI, OWNER OF VANI ROADWAYS & OWNER OF VANI BUS BEARING REG.NO.KA-20-AA-4444.
R/O 1ST CROSS, GANDHI NAGAR, SHIMOGA – 577 201.
3. UNITED INDIA INSURANCE CO., LTD., DIVISIONAL OFFICE, P.B.NO.88, 1187/947, 2ND FLOOR, RUB BUILDING, AA CIRCLE, B.H.ROAD, SHIMOGA – 577 201.
REPRESENTED BY ITS BRANCH MANAGER. ... RESPONDENTS (BY SRI.A.M.VENKATESH, ADVOCATE FOR R3;
R1 AND R2 – NOTICE DISPENSED WITH VIDE ORDER DATED 25.03.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.01.2014 PASSED IN MVC.NO.104/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, HARIHARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal aggrieved by the saddling of 50% of the contributory negligence and not being satisfied with the quantum of compensation under the judgment and award dated 24.01.2014 passed in M.V.C.No.104/2011 on the file of the Senior Civil Judge and Additional MACT, Harihar.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered in a road traffic accident. It is stated that on 23.12.2010, when the claimant was proceedings with his goods in goods auto bearing Reg.No.KA-17-A-9673, a bus bearing Reg.No.KA-20-AA-4444 was coming from the opposite direction and dashed to the goods auto rickshaw. As a result, the claimant sustained grievous injuries. On issuance of notice, respondent No.3-Insurer appeared before the Tribunal and filed their objections denying the claim petition averments. Respondent Nos.1 and 2 stated that the offending vehicle i.e., the bus was insured with respondent No.3 – Insurer. Respondent No.3 – Insurer stated that the driver of the bus was not holding effective driving license as on the date of the accident i.e., breach of policy condition. Claimant examined himself as PW-1 and also examined PW-2 apart from marking Exs.P1 to P23.
Respondent No.3 also examined two witnesses as RW-1 and RW-2 and marked Exs.R1 and R2 on their behalf. The Tribunal on appreciating the materials on record awarded a compensation of Rs.5,72,131/- with interest at the rate of 6% p.a from the date of petition till deposit under the following heads:
6 Medical attendant charges and nourishment 7 Loss during laid up period (Rs.6,000 X 6) 15,000-00 36,000-00 TOTAL: 5,72,131-00 3. Further, the Tribunal saddled contributory negligence of 50% on the claimant holding that the claimant contributed negligence to the occurrence of the accident to an extent of 50%. The claimant not being satisfied with the quantum of compensation and aggrieved by saddling of 50% of contributory negligence, is before this Court in this appeal.
4. Heard the learned counsel for the appellant/claimant and learned counsel for the respondent No.3-Insurer. Perused the materials on record including the lower court records.
5. Learned counsel for the appellant would submit that the Tribunal committed an error in saddling 50% of the contributory negligence on the claimant. He submits that the Tribunal without appreciating Ex.R1 – Sketch of the spot of accident saddled the liability on the appellant- claimant. It is his submission that a close scrutiny of Ex.R1 – Sketch, it could be seen that the bus was coming from the southern side to northern side and the goods auto rickshaw in which the claimant was proceedings was proceeding from northern side to southern side. The sketch would further indicate that the accident had taken place 12 feet from the edge of the road from Shivamogga to Shikaripura i.e., from southern side to northern side. The bus had crossed the middle of the road and caused accident. In that circumstance, he submits that the Tribunal could not have saddled 50% of the contributory negligence on the claimant.
6. Learned counsel further submits that the Tribunal has assessed 23% whole body disability, but as the claimant’s avocation was driving, he would not be in a position to drive the vehicle in view of the injuries sustained to his leg. Therefore, he submits that the functional disability is to be assessed and whole body disability to be revised. Thus, prays for enhancement of compensation.
7. Per contra, learned counsel for the respondent No.3-Insurer would submit that the Tribunal has rightly saddled the contributory negligence at 50% on the claimant and he submits that there is head on collision between the bus and auto rickshaw. It cannot be said that the claimant has not entailed contribution for the occurrence of the accident. Further, with regard to the disability, he submits that the Tribunal has rightly assessed the whole body disability at 23%. The claimant, who states that his avocation as driver, has not placed any material to indicate that he had driving license. In the cross- examination, he has deposed that he has lost the driving license. It was open for the claimant to produce the driving license extract by obtaining from the RTO Office, which he has failed to do and he has not proved his avocation as driver. Thus, prays for dismissal of the appeal.
8. On hearing learned counsel for the parties and on perusal of the entire materials on record including the lower court records, the following points would arise for consideration:
“1) Whether the Tribunal is justified in saddling 50% of contributory negligence on the claimant?
2) Whether in the facts and circumstances, it is a case for revision of disability assessed at 23% to the whole body?”.
9. Answer to the point No.1 is partly in the affirmative and answer to point No.2 is in the negative for the following reasons:
10. The accident occurred on 23.12.2010 involving goods auto rickshaw bearing Reg,No.KA-17-A-9673 and the bus bearing Reg.No.KA-20-AA-4444 and the accidental injuries suffered by the claimant are not in dispute. In this appeal, the claimant’s grievance is with regard to saddling of 50% of contributory negligence on him. The Tribunal relying on Ex.P4 and Ex.R1 coupled with evidence of RW1 saddled 50% of contributory negligence on the claimant. RW1 is the investigating officer, who has stated that both the vehicles were coming in the opposite direction. Ex.R1 is the sketch of the spot of accident. A close scrutiny of Ex.R1 would indicate that the bus was proceeding from southern side to northern side. Whereas, the auto rickshaw was coming from the northern side to southern side. The road was 20 feet wide and the accident had taken place about 12 feet from the edge of the left side of the bus.
That means, the bus had crossed middle of the road and had dashed to the on going auto rickshaw. Due to the impact of accident, the auto rickshaw had dragged nearly about 20 feet away. If the accident had taken place 12 feet away from the edge of the left side of the bus, there was 8 feet space for the auto rickshaw to pass. But even if the width of the vehicles is taken into consideration, even then, the auto rickshaw had place to pass through. Looking to Ex.P4 - spot mahazar and Ex.R1 – the Sketch of the spot, it cannot be said that the claimant has not contributed his negligence for the occurrence of the accident. Contributory negligence on the part of the claimant based on the documents on record, can be assessed at 25%. Thus, the contributory negligence saddled at 50% on the claimant by the Tribunal is reduced to 25%.
11. The Tribunal assessed the whole body disability at 23%. It is stated that the claimant was running the auto rickshaw and earning livelihood. The Tribunal has assessed the income at Rs.6,000/- per month based on the income claimed and Ex.P.23-Certificate. The claimant/appellant has not disputed the same but his submission is that due to the leg injuries suffered by him, he would not be in a position to drive the auto rickshaw. Thus, he would be deprived of his avocation as driver. But to establish that he was working as a driver, he has not placed on record any material. The claimant in his cross-examination states that he possess driving license, but he has lost the same. But he has not made any effort to place on record the extract of driving license by obtaining from the RTO. In the absence of any material to establish the avocation of the claimant, the contention that the claimant was working as a driver cannot be accepted. The Tribunal taking note of the nature of injuries, evidence of PW-2 – Doctor and medical records has rightly assessed the whole body disability at 23%, which needs no interference.
12. Learned counsel for the appellant-claimant states that the claimant has undergone three operations and he was in-patient for a period of 37 days for treatment. Looking to the surgery undergone and treatment taken as in-patient, the claimant would be entitled for another Rs.25,000/- under the head pain and suffering.
13. Accordingly, the appeal is allowed in part.
Contributory negligence saddled by the Tribunal at 50% on the claimant is reduced to 25% and further, the claimant would be entitled for Rs.25,000/- under the head Pain and Suffering.
The judgment and award passed in M.V.C.No.104/2011 dated 24.01.2014 by the Senior Civil Judge and Additional MACT, Harihar is modified to the above extent.
The insurer shall pay 75% of the award amount.
Sd/- JUDGE dn/-