Karnataka High Court

Smt B Pramila vs Sri Chandramohan on 6 December, 2021

Bench: H T Prasad

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6th DAY OF DECEMBER 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

              MFA No.2736 OF 2016 (MV)

BETWEEN:

SMT. B. PRAMILA
W/O SUDDALA SUNNY
AGED ABOUT 30 YEARS
R/AT NO.375, 2ND CROSS
BALAJI LAYOUT
MARATHHALLI
BANGALORE - 560 037
PERMANENT R/AT
GOLABANHDA GANJAM
DISTRICT ODISHA
                                         ... APPELLANT
(BY SRI.GURUDEV PRASAD K. T., ADV.)

AND:

1.     SRI. CHANDRAMOHAN, MAJOR
       S/O NANJUNDAPPA
       NO.14/1, SHANKARNAGA ROAD
       BOMMANAHALLI
       BANGALORE - 560 069

2.     THE NATIONAL INSURANCE CO. LTD.
       TP-HUB 2ND FLOOR
       SHUBHARAM COMPLEX
       M.G.ROAD, BANGALORE - 560 001
       BY ITS MANAGER.
                                     ... RESPONDENTS
                            2




(VIDE ORDER DATED 18.02.2021
 NOTICE TO R1 IS HELD SUFFICIENT;
 BY SRI.K. N. SRINIVASA, ADV. FOR R2)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT,    AGAINST    THE   JUDGMENT    AND    AWARD
DATED:15.02.2016 PASSED IN MVC NO.2938/2014 ON
THE FILE OF THE 9TH ADDITIONAL SMALL CAUSES JUDGE,
34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA, COMING ON FOR HEARING, THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 15.2.2016 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC 2938/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.4.2014, the claimant was

crossing the outer ring road from VIMS Hospital

towards More Megamart building, at that time, car

bearing registration No.KA-51-A-9683 being driven

by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The respondent No.1 did not appear before

the Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1, one Mr. Ravindra.J was examined

as PW-2 and Dr.S.Ramachandra was examined as PW-

3 and got exhibited documents namely Ex.P1 to

Ex.P21. On behalf of the respondents, one witness

was examined as RWs-1 and 2 and got exhibited

documents namely Ex.R1 to Ex.R5. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of contributory

negligence. The Tribunal further held that the

claimant is entitled to a compensation of Rs.359,100/-

along with interest at the rate of 8% p.a. and directed

the owner of the offending vehicle to deposit 75% of

the said compensation amount along with interest.

Being aggrieved, this appeal has been filed

challenging the judgment and award of the Tribunal

on the ground of negligence, liability and quantum of

compensation.

6. The learned counsel for the claimant has

raised the following contentions:

Negligence

It is contended that the accident occurred due to

rash and negligent driving of the car by its driver. It is

very clear from the evidence of PW-1, FIR, complaint

and spot mahazar that the driver of the offending

vehicle was negligent in causing the accident. The

Tribunal has given a clear finding that the driver of the

car was negligently driving the car as on the date of

accident. But only on the ground that the claimant

was crossing the road where there was no zebra

crossing has held that even the claimant has

contributed to the accident to the extent of 25%. The

said finding of the Tribunal is unsustainable and

contrary to the materials available on record.

Liability:

As on the date of accident, the driver of the

offending vehicle was having driving licence to drive

LMV (Non-transport) but he was driving the transport

vehicle. He has contended that as per the decision of

the Apex Court in the case of MUKUND DEWANGAN

vs. ORIENTAL INSURANCE COMPANY LIMITED

reported in (2017) 14 SCC 663, a person holding

driving licence to drive LMV (Non-Transport) can also

drive transport vehicle, the unladen weight of which

does not exceed 7500 kgs. The unladen weight of the

vehicle involved in the accident is less than 7500 kgs.

Therefore, the Insurance Company is liable to pay

compensation. The Tribunal is not justified in

fastening the liability on the owner of the offending

vehicle.

Quantum of compensation:

Firstly, the claimant claims that she was working

as a School Teacher at Vagdevi Vilas School,

Marathahalli and earning Rs.14,220/- per month and

produced salary certificate at Ex.P-12. The claimant

has sustained grievous injuries. PW-3, the doctor has

stated in his evidence that the claimant has suffered

disability of 29% to upper limb and 10% to whole

body. Due to the disability, there is loss of income.

But the Tribunal has erred in not granting any

compensation for 'loss of future income'.

Secondly, even though the claimant claims that

she has not attended the school for one month due to

the injuries and produced Ex.P-13 Medical leave

certificate, the Tribunal has not granted any

compensation for 'loss of income during laid-up

period'.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 9 days. Even after discharge

from the hospital, she was not in a position to

discharge his regular work. She has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are on the lower side. Hence, he sought

for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Negligence:

It is contended that the claimant was crossing

the road where there was no zebra crossing and it was

a double road with heavy traffic and vehicles moving

at high speed. Since the claimant was crossing the

road without following the traffic rules, she has also

contributed to the accident. Therefore, the Tribunal

has rightly held that the claimant has also contributed

to the accident to the extent of 25%.

Liability:

It is not in dispute that as on the date of

accident, the driver of the offending vehicle was

having driving licence to drive LMV (Non-transport)

but he was driving the transport vehicle. Since the

insured has violated the policy conditions, the Tribunal

has rightly exonerated the Insurance Company from

liability and fastened the liability on the owner of the

offending vehicle.

Quantum of compensation:

Firstly, even though the claimant claims that she

has not attended the school for one month due to the

injuries and produced Ex.P-13 Medical leave

certificate, but she has not examined the author of the

said certificate. Therefore, the Tribunal has rightly not

granted any compensation for 'loss of income during

laid-up period'. After recovering from the injuries, she

has continued her service. Therefore, the Tribunal has

rightly not granted any compensation of 'loss of future

income'.

Secondly, considering the age and avocation of

the claimant, the overall compensation awarded by

the Tribunal is just and reasonable compensation.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. The specific case of the claimant is that on

10.4.2014, when the claimant was crossing the outer

ring road from VIMS Hospital towards More Megamart

building, at that time, car bearing registration No.KA-

51-A-9683 being driven by its driver at a high speed

and in a rash and negligent manner, dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and immediately

she was shifted to hospital. After recovering from

injuries, she has filed the claim petition.

The claimant to prove her case has examined

herself as PW-1 and produced 21 documents. The

claimant in his deposition has reiterated the

averments made in the claim petition.

10. It is well settled in law that when an

accident happens through the combined negligence of

two persons, he alone is liable to the other who had

the last opportunity of avoiding the accident by

reasonable care, and who then knew or ought to have

known of the danger caused by the other's negligence.

[See: SALAMOND ON THE LAW OF TORTS,

TWELFTH EDITION 1957 PAGE 439-441]. The

general rule is that the vehicle should be driven at a

speed which enables the driver to stop within the

limits of his vision and failure to do this will almost

always result in the driver being held, in whole or in

part, responsible for the collision. [See: CLERK AND

LINDSELL ON TORTS, ELEVENTH EDITION, 1954

PAGES 368-370]. It is equally well settled legal

proposition that burden of proving negligence lies on

the person who alleges it. However, facts of the

accident may by themselves constitute evidence of

negligence and to such a case the Doctrine of res ipsa

loquitor apply which means the things speak for itself.

The aforesaid rule is one of the exception to the

general rule that burden of proving negligence lies on

the person who alleges it. The Supreme Court in

'MUNICIPAL CORPORATION OF GREATER

BOMBAY VS. LAKSHMAN IYER AND ORS.' AIR

2003 SC 4182 held that the crucial question in case

of contributory negligence is whether either party

could by reasonable care, have avoided the

consequences of other's negligence.

A division Bench of this court in 'SHARADABAI

VS. KARNATAKA STATE ROAD TRANSPORT

CORPORATION', ILR 1987 KAR 2730 has held that

in order to discharge the burden of proof with regard

to contributory negligence, it is unnecessary for the

propounder of that defence to adduce evidence about

the matter and contributory negligence can be and

very often is inferred from the evidence already

adduced by the claimants or from the perceptive facts.

However, the finding with regard to contributory

negligence has to be recorded on the basis of proper

consideration of the pleadings and legal evidence

adduced by both the parties and the same cannot be

based merely on police records.

11. PW-1 in her evidence has categorically

stated that the accident occurred due to rash and

negligent driving of the car by its driver. As per the

evidence of PW-1, FIR, complaint, IMV report, charge

sheet, the driver of the car was driving the car at a

high speed and in rash and negligent manner and

caused the accident. It is very clear from the sketch

that at the accident spot, there was no zebra crossing

and there were heavy vehicles moving on the road

and even the claimant had to take some precaution

before crossing the road by observing the traffic rules.

Hence, even the claimant has also contributed to the

accident.

Therefore, taking into consideration the evidence

of the parties and documents namely Ex.P-1 FIR,

Ex.P-2 complaint, Ex.P-3 spot sketch, Ex.P-4 Mahazar,

Ex.P-6 IMV report, Ex.P-7 charge sheet, I am of the

opinion that the accident has occurred due to

contributory negligence. It is held that the claimant

has contributed to the accident to the extent of 15%

and the driver of the car has contributed to the

accident to the extent of 85%. Hence, the finding of

the Tribunal with regard to negligence is modified to

the said extent.

Liability:

12. It is not in dispute that as on the date of

accident the driver of the offending vehicle was having

driving licence to drive LMV (Non-transport) but he

was driving transport vehicle. The Apex Court in the

case of MUKUND DEWANGAN (supra), has held that a

person holding driving licence to drive LMV (Non-

transport) can also drive transport vehicle, wherein

the unladen weight of said vehicle does not exceed

7500 kgs.

In the case on hand, the unladen weight of the

vehicle involved in the accident is less than 7500 kgs.

Therefore, in view of the above said decision of the

Apex Court, I am of the opinion that the driver of the

offending vehicle was having valid driving licence as

on the date of the accident. The offending vehicle was

covered with valid insurance policy as on the date of

accident. Hence, the Insurance Company is liable to

pay compensation to the claimant.

Quantum of compensation:

13. As per wound certificate, the claimant has

sustained fracture proximal humerus, partial breakage

of incisor teeth and hematoma on the frontal aspect of

head. PW-3, the doctor has stated in his evidence that

the claimant has suffered disability of 29% to upper

limb and 10% to whole body. She was treated as

inpatient for more than 9 days in the hospital and

thereafter, has received further treatment. Hence, I

am inclined to enhance the compensation awarded

under the head of 'conveyance, nourishment and

attendance charges' from Rs.7,000/- to Rs.15,000/-.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She has

suffered lot of pain during treatment and she has to

suffer with the disability stated by the doctor

throughout her life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.20,000/- to Rs.50,000/-, and under the head of

'pain and sufferings' from Rs.50,000/- to Rs.60,000/-.

The claimant was working as School Teacher in

Veagdevi Vilas School. She has not attended the

school for nearly one month due to the injuries and

produced Ex.P-13, Medical leave certificate. She has

produced the salary certificate at Ex.P-12, which

shows that she was drawing salary of Rs.14,220/-

p.m. Even after discharge from the hospital, she was

taking treatment and she was advised to take rest.

Therefore, considering the evidence of the claimant

and considering Ex.P-13 and Ex.P-12, I am inclined to

award compensation of Rs.14,220/- under the head of

'loss of income during laid-up period'.

After recovering from the injuries, the claimant

has continued her services and therefore, she is not

entitled for compensation under the head of 'loss of

future income'.

The compensation awarded by the Tribunal

under 'medical expenses' is just and reasonable.

Thus, the claimant is entitled to the following

compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 50,000 60,000 Medical expenses 282,100 282,100 Food, nourishment, 7,000 15,000 conveyance and attendant charges Loss of income during 0 14,220

laid up period Loss of amenities 20,000 50,000 Total 359,100 421,320

After deducting contributory negligence on the

part of the claimant, the claimant is entitled to total

compensation of Rs.3,58,122/- (Rs.421,320*85%).

14. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.3,58,122/-.

The Insurance Company is directed to deposit

the compensation amount along with interest from the

date of filing of the claim petition till the date of

realization, within a period of six weeks from the date