Sri Shankarappa vs The Regional Manager
2021 Latest Caselaw 575 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.9319 OF 2013(MV)
                     C/W
     MFA Nos.9317/2013(MV), 9318/2013(MV),
        9320/2013(MV) & 9321/2013(MV)

IN MFA 9319/2013
BETWEEN:

SRI. SHANKARAPPA
S/O LATE KEMPAIAH
AGED ABOUT 68 YEARS
R/O BAGURU VILLAGE
NITTURU HOBLI, GUBBI TALUK
PRESENTELY AT LIG 160
9TH CROSS, KUVEMPU NAGARA
HASSAN.
                                    ... APPELLANT

(BY SRI. SHIVAPRASAD E., ADV. )

AND

1.    THE REGIONAL MANAGER
      THE ORIENTAL INSURANCE CO.LTD.,
      DIVISIONAL OFFICE
      S.S.COMPLEX, SUBHASH SQUARE
      HASSAN-573 201.
                         2



2.    SRI. B.N. GIRIYAPPA SHETTY
      S/O LATE NAGAPPA SHETTY
      J.P.NAGAR. BELUR
      HASSAN-573115.
                                   ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R1:
R2 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.12.2012 PASSED IN MVC NO.1235/2012
ON THE FILE OF THE PRESIDING OFFICER &
ADDITIONAL MACT, FAST TRACK COURT-1, MACT,
HASSAN , PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA 9317/2013
BETWEEN:

SRI. V.S.SHIVAKUMAR
S/O SRI. SIDDAPPA V.T.
AGED ABOUT 38 YEARS
R/O BAGURU VILLAGE
NITTURU HOBLI, GUBBI TALUK
PRESENTELY AT LIG 160
9TH CROSS, KUVEMPU NAGARA
HASSAN.
                                      ... APPELLANT

(BY SRI. SHIVAPRASAD E., ADV. )

AND

1.    THE REGIONAL MANAGER
                         3



     THE ORIENTAL INSURANCE CO.LTD.,
     DIVISIONAL OFFICE
     S.S.COMPLEX, SUBHASH SQUARE
     HASSAN-573 201.

2.   SRI. B.N. GIRIYAPPA SHETTY
     S/O LATE NAGAPPA SHETTY
     J.P.NAGAR. BELUR
     HASSAN-573115.
                                  ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R1:
R2 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.12.2012 PASSED IN MVC NO.1239/2012
ON THE FILE OF THE PRESIDING OFFICER &
ADDITIONAL MACT, FAST TRACK COURT-1, MACT,
HASSAN , PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA 9318/2013
BETWEEN:

SMT. SAVITHA B.S.,
W/O SRI. SHIVAKUMAR V.S.
AGED ABOUT 28 YEARS
R/O BAGURU VILLAGE
NITTURU HOBLI, GUBBI TALUK
PRESENTELY AT LIG 160
9TH CROSS, KUVEMPU NAGARA, HASSAN.
                                 ... APPELLANT

(BY SRI. SHIVAPRASAD E., ADV. )
                         4




AND

1.    THE REGIONAL MANAGER
      THE ORIENTAL INSURANCE CO.LTD.,
      DIVISIONAL OFFICE
      S.S.COMPLEX, SUBHASH SQUARE
      HASSAN-573 201.

2.    SRI. B.N. GIRIYAPPA SHETTY
      S/O LATE NAGAPPA SHETTY
      J.P.NAGAR. BELUR
      HASSAN-573115.
                                   ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R1:
R2 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.12.2012 PASSED IN MVC NO.1238/2012
ON THE FILE OF THE PRESIDING OFFICER &
ADDITIONAL MACT, FAST TRACK COURT-1, MACT,
HASSAN , PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA 9320/2013
BETWEEN:

MASTER PAVAN
S/O LATE KEMPAIAH
AGED ABOUT 1 YEAR 10 MONTHS
SINCE MINOR REPRESENTED BY
HIS MOTHER SMT. SAVITHA B.S.
R/O BAGURU VILLAGE
                         5



NITTURU HOBLI, GUBBI TALUK
PRESENTELY AT LIG 160
9TH CROSS, KUVEMPU NAGARA, HASSAN.
                                 ... APPELLANT

(BY SRI. SHIVAPRASAD E., ADV. )

AND

1.    THE REGIONAL MANAGER
      THE ORIENTAL INSURANCE CO.LTD.,
      DIVISIONAL OFFICE
      S.S.COMPLEX, SUBHASH SQUARE
      HASSAN-573 201.

2.    SRI. B.N. GIRIYAPPA SHETTY
      S/O LATE NAGAPPA SHETTY
      J.P.NAGAR. BELUR, HASSAN-573115.
                                 ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R1:
R2 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.12.2012 PASSED IN MVC NO.1236/2012
ON THE FILE OF THE PRESIDING OFFICER &
ADDITIONAL MACT, FAST TRACK COURT-1, MACT,
HASSAN , PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN MFA 9321/2013
BETWEEN:

SMT. SIDDAGANGAMMA
                         6



W/O LATE SRI. SHANKARAPPA
AGED ABOUT 53 YEARS
R/O BAGURU VILLAGE
NITTURU HOBLI, GUBBI TALUK
PRESENTELY AT LIG 160
9TH CROSS, KUVEMPU NAGARA
HASSAN.
                                      ... APPELLANT

(BY SRI. SHIVAPRASAD E., ADV. )

AND

1.    THE REGIONAL MANAGER
      THE ORIENTAL INSURANCE CO.LTD.,
      DIVISIONAL OFFICE
      S.S.COMPLEX, SUBHASH SQUARE
      HASSAN-573 201.

2.    SRI. B.N. GIRIYAPPA SHETTY
      S/O LATE NAGAPPA SHETTY
      J.P.NAGAR. BELUR
      HASSAN-573115.
                                   ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R1:
R2 SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:29.12.2012 PASSED IN MVC NO.1237/2012
ON THE FILE OF THE PRESIDING OFFICER &
ADDITIONAL MACT, FAST TRACK COURT-1, MACT,
HASSAN , PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
                              7



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

                         JUDGMENT

These appeals under Section 173(1) of the Motor

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

for short) have been filed by the claimants being

aggrieved by the judgment dated 29.12.2012 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 26.5.2012, the claimants

were traveling in Maruthi Omni Car bearing

registration No.KA-06-M-4129 from Bangalore in order

to go to Sringere at about 6.30 a.m. on Hassan-Belur

Road, near Kadadaravalli gate cross, at that time, the

driver of the Tata 709 lorry bearing registration

No.KA-13-7668 came from opposite side in a rash and

negligent manner, dashed to the vehicle, in which all

the claimants were traveling. As a result of the

aforesaid accident, the claimants sustained injuries

and took treatment at SSM hospital.

3. The claimants filed a petition under Section

166 of the Act on the ground that they 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,

owner of lorry though appeared did not choose to file

written statement. Respondent No.1, insurer of lorry

filed written statement in which the averments made

in the petition were denied. The date and place of the

accident is denied. It was pleaded that the driver of

the offending vehicle did not have valid driving licence

as on the date of the accident. The liability is subject

to terms and conditions of the policy. The medical bills

and expenses are denied. The age, avocation and

income of the claimants are denied. It was further

pleaded that the quantum of compensation claimed by

the claimants is exorbitant. Hence, he sought for

dismissal of the petitions.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants themselves

were examined as PWs-1 to 5 and Dr.Gangu Hiral S

was examined as PW-6 and Dr.Majoj Kumar as PW-7.

On behalf of the respondents, one witness was

examined as DW-1 and got exhibited documents

namely Ex.D1 to Ex.D7. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of contributory negligence on

the part of the driver of the car as well as the driver of

the lorry at the rate of 30% and 70% respectively, as

a result of which, the claimants sustained injuries.

The Tribunal further held that the claimant in MVC

1235/2012 is entitled to a compensation of

Rs.25,000/-, claimant in MVC 1236/2012 is entitled to

a compensation of Rs.7,000/-, claimant in MVC

1237/2012 is entitled to a compensation of

Rs.7,000/-, claimant in MVC 1238/2012 is entitled to

a compensation of Rs.1,44,000/- and claimant in MVC

1239/2012 is entitled to a compensation of

Rs.2,20,000/- along with interest at the rate of 6%

p.a. and held that the owner and insurer of the lorry

are jointly and severally liable to pay 70% of the said

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. The learned counsel for the claimants has

contended that the accident occurred due to rash and

negligent driving of the lorry by its driver. The police

have registered FIR against the driver of the lorry and

after investigation have filed charge sheet against the

driver of the lorry. In the criminal case, the driver of

the lorry has pleaded guilty. The Insurance Company

has not taken any plea regarding contributory

negligence in the written statement. Even the owner

of the lorry has not filed written statement pleading

negligence on the part of the driver of the car. Neither

the owner nor the insurer of the lorry have examined

the driver of the lorry. Without any pleadings by the

owner or the insurer of the lorry regarding negligence,

the Tribunal has given a finding that the driver of the

car has contributed to the accident to the extent of

30%. In support of his case, he has relied upon the

judgment of the High Court of Judicature at Bombay

Bench at Aurang in the case of The New India

Assurance Company Ltd., -v- Avinash Trimbak

Mane and others (First Appeal No.2800/2009

decided 6.12.2018). He further contended that it is

very clear from the finding of the Tribunal that the

driver of the car was moving on the left side from

Southern to Northern side and the lorry was moving in

the opposite direction on the extreme right side from

Northern to Southern side and dashed to the car.

Inspite of that, the Tribunal has wrongly held that the

driver of the car has contributed to the extent to the

extent of 30%. Hence, the said finding of the Tribunal

is unsustainable.

In respect of quantum of compensation is

concerned, in MVC 1239/2012, claimant

V.S.Shivakumar was working in a private company

and earning Rs.25,000/- per month. He has suffered

grievous injuries. PW-6, Dr.Gangu Hiral has stated

the claimant has suffered disability of 54% to right

upper limb and 40% to lower limb. He was treated as

inpatient for a period of 12 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Due to the disability, he has lost an

opportunity of higher promotion. But the Tribunal has

failed to grant any compensation under the head of

'loss of future income'. Further, considering the nature

of injuries, the overall compensation granted by the

Tribunal is on the lower side.

In MVC 1237/2012, the claimant

Siddagangamma was doing agricultural work and

earning Rs.10,000/- p.m. She has suffered grievous

injuries. PW-7, Dr.Manoj Kumar has stated that she

has suffered 10% disability to whole body. She was

treated as inpatient for a period of 5 days in the

hospital. Considering the nature of injuries, the

overall compensation awarded by the Tribunal is on

the lower side.

Further, the claimants in MVC 1235/2012,

1236/2012 and 1238/2012 have suffered grievous

injuries. The overall compensation awarded by the

Tribunal to these claimants is on the lower side.

Hence, he sought for allowing the appeals.

7. On the other hand, the learned counsel for

the Insurance Company has contended that it is very

clear from the spot mahazar and sketch that the

accident has occurred in the middle of the road. Since

the accident has occurred due to head on collusion,

there is contributory negligence on the part of drivers

of both the vehicles. As per IMV report, front portion

of both the vehicles have been damaged. Therefore, it

is very clear that it is an head on collusion. The

Tribunal considering the same has rightly held that the

driver of the car and driver of the lorry have

contributed to the accident to the extent of 30% and

70% respectively.

In respect of quantum of compensation is

concerned, in MVC 1239/2012, even though the

claimant claims that he was earning Rs.25,000/- per

month and he has lost an opportunity of higher

promotion, he has not produced any documents to

establish the same. Moreover, he has continued his

job and there is no loss of income. The Tribunal

considering the same has rightly not awarded any

compensation under the head of 'loss of future

income'.

In MVC 1237/2012, even though the claimant

claims that she was earning Rs.10,000/- per month by

doing agricultural work, she has not produced any RTC

extracts or any documents to establish the same.

Therefore, the Tribunal has rightly awarded just and

reasonable compensation.

Further, the claimants in MVC 1235/2012,

1236/2012 and 1238/2012 have suffered simple

injuries. The overall compensation awarded by the

Tribunal to these claimants is just and reasonable.

Hence, he sought for dismissal of the appeals.

8. Heard the learned counsel for the parties

and perused the records.

9. The specific case of the claimants is that on

26.5.2012, the claimants were traveling in Maruthi

Omni Car bearing registration No.KA-06-M-4129 from

Bangalore in order to go to Sringere at about 6.30

a.m. on Hassan-Belur Road, near Kadadaravalli gate

cross, at that time, the driver of the Tata 709 lorry

bearing registration No.KA-13-7668 came from

opposite side in a rash and negligent manner, dashed

to the vehicle, in which all the claimants were

traveling. As a result of the aforesaid accident, the

claimants sustained injuries and were hospitalized

The claimants filed claim petitions under Section 166

of MV Act. After service of summons, the insurer of

the lorry appeared and filed written statement. Except

denying the accident, no specific contention was

raised with regard to negligence of the driver of the

car. There is no pleading regarding contributory

negligence.

The claimants to prove their case have examined

themselves as PWs-1 to 5 and produced 31

documents. The respondents have not examined the

driver of the lorry. They have examined the officer of

the Insurance Company as RW-1. The Insurance

Company has neither taken any contention regarding

negligence on the part of the driver of the car nor

regarding contributory negligence and it has not

examined the driver of the lorry.

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. [See: 'MINUROUT

VS. SATYA PRADYUMNA MOHAPATRA', (2013) 10

SCC 695 AND 'SARALA DEVI VS. ROYAL

SUNDARAM ALLIANCE INSURANCE CO. LTD.,',

(2014) 15 SCC 450]. It is well settled in law that

burden to prove breach of duty on the part of the

victim lies on the insurance company and the

insurance company has to discharge the burden.

11. Under the Motor Vehicles Act in the claim

petition before the Claims Tribunal the standard of

proof is much below than what is required in a

criminal case as well as in the civil case. No doubt,

before the Tribunal, there must be some material on

the basis of which the Tribunal can arrive or decide

things necessary to decide for awarding

compensation, but the Tribunal is not expected to take

or to adopt a nicety of a civil or criminal case. After

all it is a summary enquiry and it is the legislation for

the welfare of the Society. The proceedings under the

Motor Vehicles Act are not akin to the proceedings

under civil rules. Hence, strict rules of evidence are

not required to be followed in this regard. In the case

of MANGLA RAM -v- ORIENTAL INSURANCE

COMPANY LIMITED (2018) 5 SCC 656, the Hon'ble

Apex Court has held as hereinbelow:

"25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond

reasonable doubt could not have been applied."

12. As per Ex.P-3, spot mahazar and Ex.P-4

rough sketch, it is very clear that the car was

proceeding from South to North and the lorry was

proceeding from North to South. The width of the road

is 40 feet. The car which was moving from South to

North was moving on the left side of the road and the

driver of the lorry came in a high speed towards the

extreme right side, crossed the middle of the road and

dashed to the car. As per IMV report, both the

vehicles were damaged.

In respect of car bearing No. KA-06/M-4129,

damages found due to impact are as follows:

1. Front right side portion of the body shape found completely damaged including right side head light, indicator, wind screen glass, bumper, body shape, front right side door & its window glass.

     2.    Steering system     and   dash   board
           found damaged

3. Driver seat found out of its fixture and all seats found folded.

4. Rear diky door glass and side glass found damaged.

5. Right side rear body found scratched.

6. Body found bent towards right.

In respect of lorry bearing No.KA-13/7668,

damages found due to impact are as follows:

1. Rear wheel found broken and both wheels found out of its fixture.

2. Rear wheel mud guard found bent.

3. Rear bumper rod found bent.

4. Right side body found scratched.

Even though it appears that there is head on

collusion, when the car was proceeding on the correct

side, the lorry came from opposite direction in a high

speed, lost control and came to the extreme right side

and dashed to the car. Therefore, it is clear from the

materials available on record that accident occurred

solely due to rash and negligent driving of the lorry by

its driver. Even police after investigation filed charge

sheet against the driver of the lorry. The driver in the

criminal case has pleaded guilty.

To disprove the said version, neither the owner

of the lorry nor the insurer of the lorry have taken any

plea regarding contributory negligence on the part of

the driver of the car. Even in the written statement

filed by the insurer, there is no plea regarding

negligence on the part of the driver of the car. They

have not examined the driver of the lorry, who is the

best witness to prove the negligence. Therefore,

taking into consideration the evidence of the parties

and Ex.P-1 FIR, Ex.P2 complaint, Ex.P-3 spot

mahazar, Ex.P-4 rough sketch, Ex.P-5 IMV report

Ex.P-8 charge sheet, I am of the opinion that the

accident has occurred solely due to rash and negligent

driving of the lorry by its driver. Hence, the finding of

the Tribunal with regard to negligence is modified to

the said extent. The insurer of lorry is liable to pay

compensation to the claimants.

Re: quantum of compensation

13. In MVC 1239/2012, the claimant claims

that he was earning Rs.25,000/- per month by

working in a private company. He has not produced

any documents to prove the income. He has not

produced any documents to establish the income to

prove that he has lost an opportunity of higher

promotion. Moreover, he has continued his job and

there is no loss of income. The Tribunal considering

the same, has rightly not awarded any compensation

under the head of 'loss of future income'. Further,

considering the nature of injuries, the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' and other heads are just and reasonable.

In MVC 1237/2012, even though the claimant

claims that she was earning Rs.10,000/- per month by

doing agricultural work, she has not produced any RTC

extracts or any documents to establish the same.

Therefore, taking into consideration the nature of

injuries, age and avocation of the claimant, the

compensation awarded by the Tribunal is just and

reasonable.

Further, the claimants in MVC 1235/2012,

1236/2012 and 1238/2012 have suffered simple

injuries. Therefore, considering the same, the overall

compensation awarded by the Tribunal to these

claimants is just and reasonable.

14. In view of this Court modifying the finding

of the Tribunal regarding negligence and holding that

the accident has occurred solely due to rash and

negligent driving of the lorry by its driver, the insurer

of lorry bearing Registration No.KA-13-7668 is

directed to deposit the entire compensation amount

awarded by the Tribunal along with interest at 6%

p.a. within a period of six weeks from the date of

receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeals are allowed in part.

Sd/-

JUDGE

DM