Mahabala Shetty vs Sanjay Singh
2021 Latest Caselaw 42 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                       BEFORE

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

              M.F.A.No.4645 OF 2013(MV)

BETWEEN:

MAHABALA SHETTY,
AGED ABOUT 41 YEARS,
S/O LATE. BACHUCHU SHETTY,
R/O HONMERIMANE,
MNOOR-PADUKERE,
KOTATHATTU VILLAGE & POST,
UDUPI TALUK, UDUPI DISTRICT-576101
                                          ... APPELLANT

(BY SRI H.PAVANA CHANDRA SHETTY, ADV.)

AND:

1.     SANJAY SINGH,
       AGED ABOUT 34 YEARS,
       S/O KUMAR SINGH,
       R/O A.P.WARD NO.3,
       SRIRAMPURA TAI,
       AHAMMD NAGAR DISTRICT,
       MAHARASTRA STATE-400614.

2.     KULWANTH SINGH,
       AGED ABOUT 59 YEARS,
       S/O MILKHA SINGH,
       R/O C-6/9, 2-3 SECTOR NO.6,
       CBD, BELAPURA, NAVI MUMBAI,
       MAHARASHTRA STATE PIN-400 614.
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3.   THE IFFCO TOKIO GENERAL INSURANCE CO.
     OFFICE NO.32-33, 3RD FLOOR,
     WHITE CSTILE,
     OVER MTNL EXCHANGE,
     UNION PARK, MUMBAI,
     MAHARASHTRA STATE PIN-400 071.

                                              ... RESPONDENTS

(BY SRI.B.PRADEEP, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:13.11.2012
PASSED IN MVC NO.654/2010 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

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

                         JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 13.11.2012 passed by the

Senior Civil Judge and MACT, Kundapura in MVC

No.654/2010 whereby the Tribunal has granted a

compensation of Rs.1,43,663/- with interest at 6% p.a.

2. The brief facts of the case are that on 25.06.2010

at about 10.15 p.m., claimant as driver cum owner was

proceeding in an Auto rickshaw bearing registration No.KA-

20/A-2259 from Kota side towards Koteshwara side slowly,

steadily and on the correct side of the road. When he

reached near Nataraj Bar, N.H.17 Koteshwara Village of

Kundapura Taluk, at that time, a tanker bearing

registration No.GJ-6X/7536 came from Kundapura side

towards Udupi side, driven by its driver at a high speed

and in a rash and negligent manner, dashed against the

Auto rickshaw. Due to the said impact, claimant sustained

grievous injuries. Thereafter, claimant has been shifted to

Dr.N.R.A.M. Hospital, Koteshwara. He has taken treatment

as an inpatient till 04.07.2010. After recovering from the

injuries, he filed a claim petition before the Tribunal in

MVC No.654/2010.

3. On service of notice, the respondent No.3

appeared through counsel and filed written statement in

which the averments made in the petition were denied.

The age, occupation, income, treatment, and the manner

of accident, injuries sustained by the claimant and amount

incurred on medical expenses are denied. It was pleaded

that the accident has occurred due to contributory

negligence of the driver of Auto rickshaw. It was further

pleaded that the driver of the offending vehicle was not

holding valid and effective driving licence as on the date of

accident. Hence, he sought for dismissal of the petition.

4. To establish his case, claimant examined himself

as PW1 and examined Dr.Vivek K.S. as PW2 and got

marked 51 documents as Exs.P1 to P51. On the other

hand, on behalf of the Insurance Company neither any

witnesses were examined nor documents were marked.

On appreciation of the oral and documentary evidence, the

Tribunal granted a compensation of Rs.1,43,663/- with

interest at 6% p.a. Being not satisfied with the quantum

of compensation, claimant has filed this appeal seeking

enhancement of compensation.

5. The learned counsel for the appellant has raised

the following contentions.

Firstly, the Tribunal is not justified in giving a finding

that the claimant has contributed 25% negligence in

causing the accident. He further contended that it is not in

dispute that the driver of the Tanker overtook another

vehicle coming from the wrong side of the road and

dashed against the Auto Rickshaw. The driver of the Auto

Rickshaw was driving the same by following all the rules

and regulations. There is no negligence on the part of the

driver of the Auto Rickshaw. There is only existence of 5

feet wide tar road and 3 feet wide mud road towards the

left side of the road i.e., western side. The Tribunal has

held that the driver of the Auto Rickshaw has contributed

25% negligence to the accident. It is contrary to the

materials available on record.

Secondly, immediately after the accident, the police

have registered FIR against the driver of the Tanker and

thereafter charge sheet has been filed against the driver of

the tanker. He has not challenged the same before any

Court of law. Hence, there is no negligence on the part of

the driver of the Auto Rickshaw.

Thirdly, due to the accident, the claimant has

suffered grievous injuries. He has examined the doctor as

PW.2, who assessed disability of 20%. Since the claimant

is a driver of the Auto Rickshaw, he is unable to do his day

today work, the Tribunal is not justified in taking whole

body disability as 5%.

The claimant has suffered grievous injuries and due

to the same he has suffered lot of pain during the

treatment. The compensation awarded by the Tribunal

under the heads of 'loss of amenities' and 'pain &

sufferings' are on the lower side. Hence, he sought for

enhancement of compensation.

6. Per contra, learned counsel appearing for the

Insurance Company has raised the following contentions.

Firstly, it is not in dispute that the width of tar road

is 24 feet and existence of 3 feet wide mud road on

western side. There is a distance of 5 feet from the

western tar road edge towards eastern side on the road

and the driver of Auto Rickshaw could have taken the Auto

towards left side to avoid the accident, but he did not do

so. Therefore, the Tribunal has rightly held that the driver

of the Auto Rickshaw has contributed 25% negligence to

the accident.

Secondly, it is admitted in the evidence of PW.1 that

even after the accident, the driver of the Auto rickshaw

has continued his driving, there is no loss of income due to

disability. Since the disability assessed by the doctor to

the extent of 20%, the Tribunal has rightly assessed whole

body disability at 5%.

Thirdly, the compensation awarded by the Tribunal

under other heads are just and reasonable. Hence, he

sought for dismissal of the appeal.

7. Heard learned counsel for the parties and

perused the judgment and award of the Tribunal and

original records.

8. The case of the claimant in MVC.No.654/2010 is

that on 25.06.2010 at about 10.15 p.m., he was

proceeding in an Auto Rickshaw bearing Reg.No.KA-20/A-

2259 as a driver cum owner from Kota side towards

Koteshwara side slowly, steadily and on the correct side of

the road near Nataraj Bar, N.H.17, Koteshwara Village of

Kundapura Taluk, at that time, a tanker bearing

Reg.No.GJ/6X-7536 being driven by its driver, came from

Kundapura side towards Udupi side, at a high speed, and

in a rash and negligent manner and dashed against the

Auto Rickshaw. Due to the said impact, claimant sustained

grievous injuries. To prove negligence of the driver of

lorry, claimant examined himself as PW.1 and marked 51

documents. He has specifically deposed that the accident

occurred due to the rash and negligent driving of the lorry

by its driver.

9. In his cross-examination, he has stated that

the road is straight and he could see the vehicles coming

from the opposite side. He saw the tanker at a distance of

50 meter away, the driver of the tanker while overtaking

another vehicle came on the wrong side of the road and

dashed against the Auto Rickshaw. Immediately after the

accident, complaint has been lodged against the driver of

the lorry as per Ex.P2. On the basis of the complaint, the

police have registered FIR as per Ex.P1. After thorough

investigation, the police have filed charge sheet as per

Ex.P7 against the driver of the lorry. The police have

drawn spot mahazar and spot sketch as per Exs.P3 and P4

respectively. It is very clear from the sketch, the width of

the tar road is 24 feet and existence of 3 feet wide mud

road on western side. The Auto rickshaw was proceeding

from Kota towards Kundapura side i.e., from South to

North on the western side of the road and the tanker was

proceeding from North to South on eastern side of the

road. Considering the width of the tar road, the mid-line is

12 feet and the accident spot is on the tar road at a

distance of 5 feet from western side tar road edge. It is

not in dispute that the driver of the tanker was overtaking

another vehicle, came on the wrong side of the road and

dashed against the Auto Rickshaw. It is very clear from

the evidence of the parties and materials available on

record that there is no negligence on the part of the driver

of the Auto Rickshaw. The Tribunal only on the ground

that the total width of the road is 24 feet and the accident

spot is at a distance of 5 feet from the western tar road

edge, held that the driver of the Auto Rickshaw could have

taken the vehicle to left side and he could have avoided

the accident. On that ground, the Tribunal has held that

the driver of the Auto Rickshaw has contributed 25% of

negligence to the accident, but there is no material on

record to show that the driver of the Auto Rickshaw was

negligent in causing the accident. Hence, it is very clear

that the accident has occurred due to rash and negligent

driving of the tanker by its driver alone.

10. In respect of quantum is concerned, due to the

accident, the claimant has suffered the following injuries.

1. Segmental fractures radius left side(compound fracture),

2. Fracture medial 3rd clavicle left side,

3. Rib fracture 5/6 left side,

4. Punctured wound 1x1cm over left iliac crest and

5. Abrasion over right scapular area and right wrist.

He has examined Dr.Vivek as PW.2, who has

assessed disability of 20% to the upper limb. Taking into

consideration the injuries suffered by the claimant, and his

avocation and age and considering the deposition of the

doctor and wound certificate-Ex.P5, I am of the opinion

that the whole body disability can be assessed at 10%.

The Tribunal taking into consideration the oral and

documentary evidence has rightly assessed monthly

income of the claimant as Rs.6,000/-. At the time of the

accident, he was aged about 42 years, multiplier applicable

to the said age group is 14. Accordingly, loss of income

due to disability has been reassessed as follows:

Rs.6,000 x 12 x 14 x 10/100 = Rs.1,00,800/-.

The compensation awarded by the Tribunal on other

heads is just and reasonable.

The claimant is entitled to a compensation of

Rs.1,00,800/- instead of Rs.50,400/- under the head of

'loss of income due to disability', in addition to the

compensation which has been awarded by the claims

Tribunal.

The Insurance Company is directed to deposit the

entire compensation amount, along with an interest @ 6%

per annum, from the date of filing of the claim petition till

the date of realization, within a period of three months

from the date of receipt of the certified copy of this

judgment.

To the aforesaid extent, the judgment of the Claims

Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

Mkm/-