IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.6318 OF 2015 (MV-I)
BETWEEN:
ARITRA DE,
S/O ALOKMOY DE,
AGED 31 YEARS,
R/AT D-401, PROSPERO,
BYATARAYANAPURA,
BELLARY ROAD,
BENGALURU-560 092,
DRIVING LICENSE ADDRESS
/PERMANENT ADDRESS
MADHUSUDANPUR,
CHANDRAHATI, MOGRA,
HOOGLEY,
WEST BENGAL.
... APPELLANT
(BY SRI. K.V. SHYAMAPRASADA, ADVOCATE)
AND:
1. ANAND J. GUNGUNE
S/O JAI PRAKASH GUNGUNE,
2
MAJOR,
R/AT #12, FIRST MAIN ROAD,
CANARA BANK COLONY,
CHANDRA LAYOUT,
BIJAYANAGAR,
BENGALURU-560 040.
2. M/S. HDFC ERGO GENERAL INSURANCE CO. LTD.,
NO.14, 1ST FLOOR,
H.M. GENEVA HOUSE,
CUNNINGHAM ROAD,
BENGALURU-560025,
REPRESENTED BY ITS MANAGER
... RESPONDENTS
(BY SRI. D.VIJAYAKUMAR, ADVOCATE FOR RESPONDENT
NO.2;
SERVICE OF NOTICE TO RESPONDENT NO.1 IS
DISPENSED WITH VIDE COURT ORDER DATED
13.10.2015)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
30.05.2015 PASSED IN MVC NO.6409/2013 ON THE FILE
OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV
ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
3
JUDGMENT
This appeal is filed by the claimant seeking enhancement of the compensation awarded by the Court of IX Additional Small Causes and Addl. Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal'), Bengaluru (SCCH No.7) in MVC No.6409/2013.
2. The appellant herein will henceforth be referred to as the claimant and respondent Nos.1 and 2 herein will henceforth be referred to as the owner and insurer respectively of the offending motor bike involved in the accident.
3. The claim petition discloses that 07.06.2013 at about 6:15 p.m., when the claimant was riding his motorcycle bearing registration No.KA-01-EL-1374 on 7th cross, Sadashivanagar, Bangalore, a motorcycle bearing registration No.KA-03-HQ-2355 which was moving on the 10th main road at Sadashivanagar in a high speed and a rash and negligent manner, dashed against the motorcycle 4 ridden by the claimant. As a result, the claimant fell down and sustained serious injuries and was admitted at M.S. Ramaiah Memorial hospital, Bengaluru, where he underwent an open reduction and internal fixation with interlocking nails to fix the fracture on 10.06.2013. The claimant was admitted as an inpatient in the said hospital between 07.06.2013 and 17.06.2013. He claimed that he had to visit the hospital for regular follow-up, physiotherapy etc. The claimant alleged that on a complaint lodged by him, a case in Crime No.31/2013 was registered against the rider of the offending motor bike for offences punishable under Section 279 and 338 of the Indian Penal Code, 1860. He contended that he was employed as Program Manager at Pengala Learning Private Limited and was drawing a salary of Rs.50,000/- per month. He further claimed that as a result of the accident, he was not attending work and had great difficulty in doing daily chores. The claimant filed the claim petition under section 166 of the Motor Vehicles Act, 1988 claiming 5 compensation of Rs.25,00,000/- from the owner and insurer of the offending motor bike.
4. The claim petition was contested by the rider of the offending motor bike who contended that it was the claimant who was negligent and responsible for the accident. He alleged that the claimant entered from 7th cross road to the 10th main road without noticing the traffic. He claimed that he was a student pursuing B.E. Degree and that he was seriously injured in the accident. He claimed that he was in the ICU for two days and had suffered serious injuries.
5. In so far as the insurer of the offending motor bike is concerned, based on the objection of the owner, the insurer contended that it was the claimant who was negligent and was responsible for the accident. It also contended that the owner of the offending motor bike had authorized a mechanic to ride the motor bike and that the said person did not possess a valid licence. 6
6. With the aforesaid rival contentions, the claim petition was set down for trial.
7. Before the Tribunal, the claimant was examined as PW.1 and he examined Doctor who treated him as PW.2 and marked documents as per Exs.P1 to P23. However, the rider/owner of the motor bike and its insurer did not lead any evidence and did not mark any document.
8. The Tribunal noticed from the complaint at Ex.P2, spot panchanama at Ex.P3 and sketch of the spot at Ex.P4 and the M.V. report at Ex.P5 as well as the charge sheet at Ex.P6 that the claimant as well as the rider of the offending motor bike were negligent and had equally contributed for the cause of the accident. The Tribunal also relied upon the evidence of PW.2, who deposed that the claimant had suffered fracture of both the bones of the left leg and that he underwent surgery on 10.06.2013. He was under the post operative intensive care unit for three days for cardio respiratory problem and was discharged on 17.06.2013. Further, he deposed that the claimant 7 underwent physiotherapy. PW.2 deposed that he had clinically examined the claimant on 31.01.2015 and found that the fractures had united. He further deposed that the claimant had suffered a permanent partial disability of 38% to the left lower limb and permanent partial disability of 13% to the whole body. In order to assess the compensation payable to the claimant the Tribunal relied upon Ex.P13 and Ex.P14 which were copies of PAN card and income tax return for the assessment year 2014-15. It disclosed that the claimant was aged 29 years. The salary slips at Ex.P11 indicated that his net salary was Rs.48,169/-. Hence, the Tribunal considered the permanent physical disability sustained by the claimant at 13% to the whole body and the income of the claimant at Rs.48,169/- and awarded the following compensation:
Sl. Heads under which Amount
No. compensation awarded (in Rupees)
1 Pain and suffering 30,000/-
2 Loss of amenities of life 20,000/-
3 Loss of income during laid 96,338/-
up period
4 Actual medical expenses 29,031/-
8
5 Conveyance 3,000/-
6 Attendant charges 3,000/-
7 Food, nourishment and diet 5,000/-
charges
TOTAL 1,86,369/-
9. In so far as the entitlement of the claimant to the compensation, the Tribunal held that since the claimant had contributed equally in the cause of the accident, it held that the claimant is entitled to 50% of the compensation and thus, directed the insurer to pay a sum of Rs.93,185/- along with interest at 6% per annum.
10. Feeling aggrieved by the finding regarding contributory negligence as well as the quantum of compensation awarded by the Tribunal, the claimant has filed this appeal.
11. Learned counsel for the claimant contended that the Tribunal committed an error in finding that the claimant had contributed to an extent of 50% in causing the accident though there was no tangible evidence on record. He also contended that the sketch of the spot 9 cannot be the basis for inferring negligence on the part of the claimant. He further reiterated that the burden to prove contributory negligence is on the party alleging it. He relied upon a judgment of this Court in MFA.No.8999/2017 and contended that in the absence of any proof regarding contributory negligence, the Tribunal could not have returned a finding accusing the claimant of contributing to the accident. The learned counsel also contended that the Tribunal had granted inadequate compensation towards pain and suffering undergone by the claimant as well as towards loss of amenities. He contended that the Tribunal ought to have awarded just compensation towards attendant charges.
12. Per contra, learned counsel for the insurer contended that there was enough evidence on record to indicate that the claimant was negligent and had contributed to the accident in equal measure. He claimed that the claimant was moving from the 7th cross road and was entering the 10th main road and therefore had to 10 exercise due care and caution, but the claimant blindly entered the main road and dashed against the offending motor bike. The learned counsel brought to our notice Ex.P4 which is the sketch of the scene of the accident and contended that the accident occurred on the left track of the road running west to east and therefore, he contended that it was the claimant who was negligent. He also invited the attention of this Court to the report of the motor vehicle inspector which disclosed that the right hand side body shield of the offending motor bike was broken. He contended that the claimant had rammed into the middle portion of the offending motor bike and therefore, contended that the Tribunal had rightly held that the claimant had contributed to the accident in equal measure. He also contended that the rider of the offending motor bike was more severely injured than the claimant, which indicated the velocity at which the claimant moved his motor bike and thus, contended that it was the claimant who was negligent. In so far as the claim for enhancement is concerned, the learned counsel invited the 11 attention of this Court to the evidence of PW.1 where he deposed that he had leave of 26 days in his account and that he had received salary during the leave period. PW.1 deposed that he had received his salary of Rs.50,000/- per month even at the time of the accident and that his salary was enhanced to Rs.60,000/- per month and therefore, contended that the claimant had not suffered any functional disability and not lost any income during the period of treatment and / or lost any income due to disability. He, therefore, claimed that the Tribunal committed an error in awarding two months' salary to the claimant as the loss of income during the period of treatment. The learned counsel, therefore, contended that the impugned judgment and award is just and proper and does not call for any interference by this Court.
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties. We have perused the records of the Tribunal as well as its judgment and award.
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14. It is now well settled that while considering the case of contributory negligence, the Tribunal should not rely solely upon the documents prepared by the Police while investigating the criminal case. The Apex Court in the case of Minurout vs. Satya Pradyumna Mohapatra reported in (2013) 10 SCC 695 had held that when a finding regarding contributory negligence is to be recorded, it should be based on proper consideration of the pleadings and legal evidence adduced by the parties and the same cannot be based on mere police records. It is also well settled that person who alleges contributory negligence should also produce enough evidence to establish the same before the Tribunal. In the case on hand, the rider / owner of the offending motor bike though contested the claim petition, did not enter the witness box to lead evidence regarding the alleged contributory negligence in causation of the accident by the claimant. Thus, in the absence of any proof regarding the contributory negligence on the part of the claimant, the Tribunal ought not to have found that the claimant was negligent and had equally 13 contributed to the accident. This Court in similar circumstances had held in MFA No.8999/2017 that in the absence of direct and corroborative evidence, the Tribunal cannot give any specific finding about negligence on the part of any individual. This is also the law declared by the Apex Court in Jiju Kuruvila and others vs. Kunjujamma Mohan and others reported in (2013) 9 SCC 166.
15. In view of the above discussion, the finding of the Tribunal that the claimant was negligent and contributed to the accident, is liable to be set aside.
16. In so far as the quantum of compensation is concerned, the claimant had suffered close fractures of two bones of the left leg. PW.2 - Doctor spoke about whole body disability sustained by the claimant to an extent of 13% and that the claimant was an inpatient for 11 days in M.S. Ramaiah Memorial Hospital. In view of the fact that the claimant was restricted to bed for nearly two months, the Tribunal ought to have awarded just compensation 14 having regard to the pain and suffering undergone by the claimant and the amenities he had lost in the process. The claimant had also spent a sum of Rs.15,150/- towards the repair of his motor bike which he is entitled to recover from the owner / insurer of the offending bike. In that view of the matter, the compensation awarded by the Tribunal is reconsidered and redetermined as follows:
Heads under which Amount
compensation awarded (in Rupees)
Pain and suffering 50,000/-
Loss of amenities of life 40,000/-
Loss of income during laid-up period 96,338/-
Actual medical expenses 29,031/-
Conveyance charges 5,000/-
Attendant charges at the rate of 11,000/-
Rs.1000/- per day
Food, nourishment and diet charges 5,000/-
Cost of repair of motor bike of the 15,150/-
claimant
Total 2,51,519/-
17. Since the insurer had not challenged the grant of compensation during the laid up period, the same cannot be called in question in this appeal filed by the claimant.
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18. Hence, the appeal is allowed in part and in modification of the impugned Judgment and Award of the Tribunal, it is held that the claimant was not guilty of contributory negligence in causing the accident and the compensation awarded by the Tribunal is enhanced from Rs.1,86,369/- to Rs.2,51,519/-, which is payable by the owner / insurer of the offending motor bike with interest at 6% per annum from the date of the claim petition till the date of realization within one month from the date of receipt of a certified copy of this judgment.
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JUDGE Sd/-
JUDGE sma