Karnataka High Court
Aritra De vs Anand J Gungune on 7 January, 2021
Author: Alok Aradhe Rangaswamy
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
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
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. 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
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/-
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
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
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
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.
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
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
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.
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.
Sd/-
JUDGE
Sd/-
JUDGE
sma
