Karnataka High Court
Sridhar S/O Pitambar vs Vinod Reddy S/O Srinivasreddy And ... on 12 January, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.33074/2013
C/W
MFA Nos.32853/2013, 32854/2013
& 33073/2013
IN MFA NO.33074/2013:
BETWEEN:
E Gururaj S/o E Gopalareddy,
Age: 27 years, Occ: Gumastha in Rice Mill,
R/o House No.9-12-37, Maddipeth,
Raichur - 584 101.
... Appellant
(By Sri Sanganagouda V. Biradar, Advocate)
AND:
1. Gopal S/o Sridhar,
Age: 27 years, Occ: Driver,
R/o H.No.6-2-139, Maddipeth,
Gadwal Road, Raichur - 584 101.
2. Sridhar S/o Pitambar,
Age: Major, Occ: Business,
2
R/o H.No.6-2-141/261,
Manik Nagar, Raichur - 584 101.
3. The Branch Manager,
United India Insurance Co. Ltd.,
First Floor, Near Gandhi Chowk,
Raichur - 584 101.
... Respondents
(Sri Basavaraj R. Math, Advocate for R2;
Sri J. Augustin, Advocate for R3;
Notice to R1 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 02.04.2013 passed by the
learned Member, MACT & PO, FTC-I, Raichur in MVC
No.593/2012 and allow the said claim petition.
IN MFA NO.32853/2013:
BETWEEN:
Sridhar S/o Pitambar,
Aged about 50 years, Occ: Business,
R/o H.No.6-2-141/261, Manik Nagar,
Raichur - 584 101.
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Vinod Reddy S/o Srinivasreddy,
Age: 26 years
Occ: Business & Clerk in Rice Mill,
R/o H.No.9-17-7, Maddipet,
Raichur - 584 101.
3
2. Gopal S/o Sridhar,
Age: 26 years, Occ: Driver,
R/o H.No.6-2-139,
Maddipet, Raichur - 584 101.
3. The Branch Manager,
United Insurance Co. Ltd.,
Near Gandhi Chowk,
Raichur - 584 101.
... Respondents
(Sri Sanganagouda V. Biradar, Advocate for R1;
Notice to R2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
impugned judgment and award dated 02.04.2013 passed
by the MACT (FTC-I), Raichur in MVC No.571/2012.
IN MFA NO.32854/2013:
BETWEEN:
Sridhar S/o Pitambar,
Aged about 50 years, Occ: Business,
R/o H.No.6-2-141/261, Manik Nagar,
Raichur - 584 101.
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
1. E. Gururaj S/o E. Gopalareddy,
Age: 27 years
Occ: Business & Clerk in Rice Mill,
R/o H.No.9-12-7, Maddipet,
Raichur - 584 101.
4
2. Gopal S/o Sridhar,
Age: 26 years, Occ: Driver,
R/o H.No.6-2-139,
Maddipet, Raichur - 584 101.
3. The Branch Manager,
United Insurance Co. Ltd.,
Near Gandhi Chowk,
Raichur - 584 101.
... Respondents
(R1 - served;
Notice to R2 is dispensed with;
Sri J. Augustin, Advocate for R3)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to set aside the
impugned judgment and award dated 02.04.2013 passed
by the MACT (FTC-I), Raichur in MVC No.593/2012.
IN MFA NO.33073/2013:
BETWEEN:
Vinod Reddy S/o Srinivasreddy,
Age: 26 years,
Occ: Business and Gumastha in Rice Mill,
R/o House No.9-17-7, Maddipeth, Raichur.
... Appellant
(By Sri Sanganagouda V. Biradar, Advocate)
AND:
1. Gopal S/o Sridhar,
Age: 25 years, Occ: Driver,
R/o H.No.6-2-139, Maddipet,
Gadwal Road, Raichur-584 101.
5
2. Sridhar S/o Pitambar,
Age: Major, Occ: Business,
R/o H.No.6-2-141/261,
Manik Nagar, Raichur-584 101.
3. The Branch Manager,
United India Insurance Co. Ltd.,
First Floor, Near Gandhi Chowk,
Raichur-584 101.
... Respondents
(Notice to R1 is dispensed with;
Sri Basavaraj R. Math, Advocate for R2;
Sri J. Augustin, Advocate for R3)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 02.04.2013 passed by the
Motor Accident Claims Tribunal (FTC-I), Raichur in MVC
No.571/2012 and allow the said Claim Petition.
These appeals coming on for final hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
MFA No.33073/2013 is filed by the claimant-Vinod
Reddy in MVC No.571/2012, assailing the judgment and
award dated 02.04.2013, passed by the Motor Accident
Claims Tribunal (FTC-I), Raichur (for short 'the Tribunal'),
seeking enhancement of compensation and absolving the
liability fastened on him to the extent of 70%, holding
contributory negligence on the part of the claimant/rider of
the motorcycle.
2. MFA No.32853/2013 is filed by the owner of
the offending vehicle one Sridhar S/o Pitambar, assailing
the judgment and award passed by the Tribunal in
MVC.No.571/2012, seeking to absolve the liability fastened
on the owner of the offending vehicle to the extent of
30%.
3. MFA No.33074/2013 is filed by the claimant-
E. Gururaj in MVC No.593/2012, pillion rider, assailing the
judgment and award passed by the Tribunal, seeking
enhancement of compensation and absolving the liability
fastened on him to the extent of 70%, holding contributory
negligence on the part of the claimant/pillion rider of the
motorcycle.
4. MFA No.32854/2013 is filed by the owner of
the offending vehicle, assailing the judgment and award
passed by the Tribunal in MVC.No.593/2012, seeking to
absolve the liability fastened on the owner of the offending
vehicle to the extent of 30% holding contributory
negligence on the part of the driver of the offending
vehicle.
5. For the sake of convenience, the parties shall
be referred to as per their ranking before the Tribunal.
6. It is the case of the claimants in both MVC
No.571/2012 and MVC No.593/2012 that, on 04.03.2012
at about 3.30 p.m., the claimants - Vinod Reddy being
rider of the motorcycle and E.Gururaj being pillion rider
were proceeding towards Bijanagera village on a Bajaj
Discover motorcycle bearing No.KA-36/Q-3433 and when
they reached Raichur-Bijanagera Road, a goods auto
bearing registration No.KA-36/A-1403 being driven by its
driver-Gopal in a rash and negligent manner, came on the
wrong side and hit the motorcycle and caused the
accident. Due to the impact of the said accident, the
claimants sustained grievous injuries and were treated at
M.K. Bhandari Hospital, Raichur and the accident occurred
due to the sole negligence on part of respondent
No.1/driver of the offending vehicle.
7. It is further contended that both the claimants
were hale and healthy at the time of the accident and were
earning a sum of Rs.6,000/- per month, working as clerks
in the rice mill and also earning a sum of Rs.1,00,000/-
from agriculture and thus, sought compensation before the
Tribunal.
8. In response to the notice issued by the
Tribunal, respondent Nos.1 to 3 appeared through their
counsel and respondent Nos.2 and 3 filed their written
statements separately and respondent No.1 adopted the
written statement filed by respondent No.2.
9. Respondent No.2 in his written statement
contended that the accident occurred due to the rash and
negligent driving of the rider of the motorcycle and also
contended that the compensation sought by the claimants
is much on the higher side and in the event the Tribunal
comes to a conclusion that the claimants are entitled for
any compensation, then the liability to be fastened upon
the insurance company.
10. The respondent No.3-insurance company in its
written statement contended that the driver of the goods
auto drove the vehicle violating the policy conditions and
would further contend that the accident occurred due to
the contributory negligence on the part of the rider of the
motorcycle causing accident, which resulted in injuries to
the respective claimants. On these grounds, they sought
for dismissal of the claim petitions.
11. On the basis of the pleadings of the parties,
the Tribunal framed the following similar and identical
issues in both the cases for its consideration:
ISSUES
1. Whether petitioner proves that the
accident dated 4.3.2012 was due to rash
and negligence on the part of driver of
Goods auto bearing registration
No.KA-36/A-1403 and that the petitioner
sustained injuries due to said rash and
negligence?
2. Whether petitioner is entitled for award of
compensation? If so, how much and from
whom?
3. What order or award?
12. To substantiate their case, the claimant in MVC
No.571/2012 examined himself as PW.1, claimant in MVC
No.593/2012 examined himself as PW.2 and examined
three more witnesses as PWs.3 to 5 and got marked
Exs.P1 to P122. On behalf of the respondents, the officer
of respondent No.3 got examined as RW.1 and got marked
Exs.R1 to R4.
13. The Tribunal, on the basis of the evidence on
record held that the accident occurred due to the rash and
negligent driving on the part of respondent No.1-Gopal,
the driver of the offending vehicle and also on the part of
the rider and pillion rider of the motorcycle, attributing
contributory negligence to the extent of 30% on the driver
of the goods auto and 70% on the rider of the motorcycle.
So also, the Tribunal held that the pillion rider has also
contributed negligence and as such, the contributory
negligence to the extent of 70% is attributed to the pillion
rider and apportioned the negligence amongst the rider
and pillion rider of the motorcycle and the offending
vehicle/goods auto to the extent of 70:30 and directed
respondent Nos.1 and 2 to jointly satisfy the compensation
amount to the extent of 30%.
14. Being aggrieved by the findings recorded by
the Tribunal on issue No.1, the claimants in both the
petitions (rider and pillion of the motorcycle) have
preferred MFA Nos.33073/2013 and 33074/2013, seeking
enhancement of compensation and to absolve the liability
fastened upon them and the owner of the offending
vehicle/goods auto has preferred MFA Nos.32853/2013
and 32854/2013 seeking to absolve his liability.
15. We have heard the learned counsel for the
claimants, learned counsel for the owner and the learned
counsel for the insurance company in all the appeals and
perused the material on record and also the original
records.
16. Sri Sanganagouda V. Biradar, learned counsel
for the claimants would contend that the Tribunal was not
justified in fastening the liability on the rider and the pillion
rider of the motorcycle to the extent of 70% holding that
there was contributory negligence on the part of the rider
of the motorcycle. Further, the learned counsel drew our
attention to the relevant documents at Exs.P1 to P5 and
contended that on perusal of the same, it would establish
that it was the driver of the offending vehicle/goods auto,
who was the cause for the accident, as he had proceeded
on the wrong side. He therefore contended that 100%
negligence ought to have been fastened on the driver of
the goods auto. He would further contend that in fact, as
per Ex.P5, charge sheet was laid against the driver of the
goods auto and these facts were not appreciated by the
Tribunal in proper perspective. Thus, the Tribunal has
erroneously come to the conclusion that there was
contributory negligence on the part of the rider and pillion
rider of the motorcycle to an extent of 70%. Hence, he
sought to allow the appeals filed by the claimants and
reverse the judgment passed by the Tribunal, attributing
100% negligence on the part of the driver of the goods
auto and fasten the liability upon the insurance company.
17. Learned counsel would further contend that the
claimants are entitled for enhanced compensation, as the
Tribunal has not properly assessed the income and not
considered the injuries sustained by the claimants due to
the impact of the accident and the disability is also not
considered by the Tribunal and the compensation under
the loss of future earning is not awarded.
18. Sri Basavaraj R. Math, learned counsel for the
appellant in MFA Nos.32853/2013 and 32854/2013, the
owner of the offending vehicle would contend that the
Tribunal has fastened the liability to the extent of 30%
upon the owner of the offending vehicle on the ground that
the driver of the goods auto was having driving licence
only for light motor vehicle and that the driver had no
driving licence for the passenger vehicle or the goods
vehicle or the three wheelers without considering the fact
that the driver of the goods auto was holding valid driving
licence for passenger vehicle. Thus, the contributory
negligence attributing to the extent of 30% on respondent
No.1/driver of the offending vehicle and respondent No.2
holding that they are jointly liable is unsustainable.
19. It is further contended that the Tribunal has
not considered that the driver of the offending vehicle had
possessed the driving licence not only to drive the light
motor vehicle, but also for A/R cab and the LMV licence is
valid from 19.5.2010 to 18.5.2030 and the A/R cab licence
was valid from 6.3.2000 to 5.3.2015. This aspect was not
considered by the Tribunal and thus, he sought for
absolving the liability fastened on the owner of the
offending vehicle.
20. Per contra, Sri J. Augustin, learned counsel for
the insurance company would contend that the
contributory negligence attributed by the Tribunal to the
extent of 70% upon the rider and the pillion rider of the
motorcycle on the one hand and 30% on respondent Nos.1
and 2, the driver and owner of the goods auto on the other
hand, does not call for interference for the reason that the
driver of the offending vehicle did not possess a valid
driving licence for passenger vehicle or goods vehicle of
three wheelers and thus, contended that the judgment and
award passed by the Tribunal is just and proper.
21. Having heard the learned counsel for the
parties and on perusal of the material on record as well as
the original record, the following points would arise for
consideration in these appeals:
(i) Whether the Tribunal was justified in holding
that there was 70% contributory negligence
son the part of the rider and the pillion rider
of the motorcycle bearing No.KA 36/Q-3433
and that there was only 30% negligence on
the part of the driver of the goods auto
bearing registration No.KA 36/A-1403?
(ii) Whether the Tribunal was justified in
fastening the liability to an extent of 30% on
the owner and driver of the goods auto on
the ground that the driver did not possess
driving licence for passenger vehicle or goods
vehicle of three wheelers?
(iii) Whether the claimants are entitled for
enhanced compensation?
(iv) What order?
Point Nos.1 and 2:
22. The fact that on 04.03.2012 at about 3.30
p.m. on Raichur-Bijanagera Road, there was collision of
motorcycle bearing No.KA-36/Q-3433 and a goods auto
bearing registration No.KA-36/A-1403, which resulted in
grievous injuries to the claimants has been established by
the claimants.
23. The controversy is, however, with regard to
the negligence and the findings arrived at by the Tribunal.
In that regard, as already noted, the Tribunal has
apportioned negligence between the rider, pillion rider and
the driver of the goods auto to the extent of 70% and
30%, which is assailed in these appeals.
24. Learned counsel for the appellants in MFA
Nos.33073/2013 and 33074/2013/claimants has drawn our
attention to Exs.P1 to P5 and perusal of the same would
clearly establish that the driver of the offending
vehicle/goods auto bearing registration No.KA 36/A-1403
came from a wrong side and consequently dashed against
the motorcycle on which the rider and the pillion rider were
proceeding. Ex.P2-spot panchnama and Ex.P3-MVA report
would also clearly establish that the accident occurred due
to the rash and negligent driving of the goods auto driven
by the driver and due to the rider of the motorcycle-Vinod
Reddy, who entered in the wrong side of the road. The
Tribunal has absolved the insurance company of its liability
and fastened the liability on Sridhar, the owner of the
goods auto on the ground that the driver of the goods auto
did not have a valid and effective driving licence as on the
date of the accident.
25. By order dated 26.08.2021, this Court received
the report submitted by the jurisdictional RTO along with
the extract of driving licence of the aforesaid driver Gopal
S/o Shridhara. The report submitted by the RTO along with
the extract of driving licence clearly shows that the
aforesaid Gopal, the driver of the goods auto had driving
licence with two endorsements i.e., (i) motorcycle with
gear issued on 19.05.2010 (ii) three wheelers-non
transport i.e., offending vehicle - goods auto which was
issued on 15.01.2009 and valid upto 14.01.2029. This
report extract deals with the material on record. Thus, in
the light of the decision of the Hon'ble Apex Court in the
case of MUKUND DEWANGAN vs. ORIENTAL
INSURANCE COMPANY LIMITED reported in (2016) 4
SCC 298, the liability is to be shifted from the owner of
the vehicle to the insurance company and the said finding
is reversed on account of the aforesaid discussion and the
reasoning and we conclude that the contributory
negligence attributed to the rider of the motorcycle is
modified by holding that claimant is guilty of contributory
negligence to the extent of 50% and insurance company is
liable to pay the compensation to the extent of 50%.
Insofar as the appellant in MFA No.33074/2013/claimant is
concerned, he was only a pillion rider and hence,
contributory negligence cannot be attributed to him.
Accordingly, we shift the entire liability on the insurance
company.
26. For the reasons stated supra, point Nos.1 and
2 are answered partly in the affirmative and partly in the
negative holding that the liability of the rider is modified to
the extent of contributory negligence of 50% and the
liability attributed on the pillion rider is fastened entirely
upon the insurance company. Further, the liability fastened
on the owner of the goods auto is shifted on the insurance
company.
Point No.3:
27. The next point is with regard to the quantum
of compensation awarded by the Tribunal to the tune of
Rs.76,000/- to the claimant-Vinod Reddy in MVC
No.571/2012 and Rs.1,08,000/- to the claimant-E.Gururaj
in MVC No.593/2012.
28. In MFA No.33073/2013: As per Ex.P4-
wound certificate, the rider-Vinod Reddy has suffered
facture of right hip, shaft of femur over middle 1/3 and
also 1/3 of clavicle. The doctor, as per Ex.P7-disability
certificate has assessed the disability of the whole body to
the extent of 50 to 60%. Looking into the injury and the
disability as stated by the doctor, we attribute that the
claimant-Vinod Reddy has suffered disability to the extent
of 30%. The claimant was working in the rice mill and as
per the salary certificate at Ex.P10, he was earning
Rs.6,000/- per month, which is corroborated with the
evidence of PW.2, the Accountant in the said mill, who
stated that the claimant was working in the rice mill and
was earning Rs.6,000/-. The claimant was admitted in the
hospital from 04.03.2012 to 20.03.2012. Thus, considering
the income at 6,000/- per month as per the salary
certificate at Ex.P10, the disability to the extent of 30%,
looking into the nature of injuries as per the wound
certificate and applying the multiplier of 18, as the age of
the claimant is 25 years, the appellant/claimant would be
entitled for a total sum of Rs.3,88,800/- (Rs.6000 x 12 x
18 x 30%) towards loss of future earning.
29. The claimant is entitled for total compensation
under the following heads:
1. Towards pain and sufferings Rs.40,000/-
2. Towards medical expenses Rs.18,000/-
3. Loss of future earning Rs.3,88,800/-
4. Towards loss of earning Rs.18,000/-
during the treatment period
(Rs.6000 x 3)
5. Loss of amenities Rs.25,000/-
6. Food and nourishment Rs.20,000/-
Total Rs.5,09,800/-
The Tribunal has already awarded a sum of
Rs.76,000/-. Hence, after deducting the same, the
enhanced compensation works out to Rs.4,33,800/-
(Rs.5,09,800/- less Rs.76,000/-), out of which appellant is
entitled for only 50% i.e., Rs.2,16,900/- with interest at
6% p.a. from the date of petition till realization.
30. In MFA No.33074/2013: As per Ex.P49-
wound certificate, the pillion rider-E.Gururaj has suffered
facture of both bones of middle right leg. The doctor has
assessed the disability of the whole body to the extent of
15-20%. Looking into the injury, the disability of the whole
body would be considered to 10%. The claimant was
working in the rice mill and as per the salary certificate at
Ex.P118, the claimant was earning Rs.6,000/- per month,
which is corroborated with the evidence of PW.2-the
Accountant in the said mill, who stated that the claimant
was working in the mill and was earning Rs.6,000/- per
month. The claimant was hospitalized from 04.03.2012 to
10.03.2012. Thus, considering the income at Rs.6,000/-
per month as per the Salary Certificate-Ex.P118, the
disability to the extent of 10%, looking into the nature of
injuries as per the wound certificate and applying the
multiplier of 17, as the age of the claimant is 26 years, the
claimant would be entitled for a total sum of Rs.1,22,400/-
(Rs.6000 x 12 x 17 x 10%) towards loss of future earning.
31. The claimant is entitled for total compensation
under the following heads.
1. Pain and sufferings Rs.40,000/-
2. Medical expenses Rs.50,000/-
3. Loss of future earning Rs.1,22,400/-
4. Loss of earning during the Rs.18,000/-
treatment period
(Rs.6000 x 3)
5. Loss of amenities Rs.25,000/-
6. Food and nourishment Rs.20,000/-
Total Rs.2,75,400/-
The Tribunal has already awarded a sum of
Rs.1,08,000/-. Hence, after deducting the same, the
appellant would be entitled for enhanced compensation of
Rs.1,67,400/- (Rs.2,75,400/- less Rs.1,08,000/-) with
interest at 6% p.a. from the date of petition till realization.
32. In view of the same, point No.3 is answered in
the partly affirmative.
33. In the result, we pass the following:
ORDER
i) MFA No.32853/2013 arising out of MVC
No.571/2012 and MFA No.32854/2013 arising out
of MVC No.593/2012 filed by the owner of the
offending vehicle are allowed and the liability is
fastened on the insurance company.
ii) MFA No.33073/2013 arising out of MVC
No.571/2012 filed by the rider of the motorcycle
is allowed in part and the liability is modified by
holding that the claimant is guilty for contributory
negligence to the extent of 50% and 50% is
attributed to the insurance company. The
appellant-claimant is entitled for the enhanced
compensation of * Rs.2,54,900/- (50% of
* Rs.5,09,800/-) with interest at 6% per annum
from the date of petition till realisation.
iii) MFA No.33074/2013 arising out of MVC
No.593/2012 is allowed and the appellant - pillion
rider is absolved from contributory negligence and
the entire liability is fastened upon the insurance
company and the appellant is entitled for
enhanced compensation of * Rs.2,75,400/- with
interest at 6% per annum from the date of
petition till realization.
* Corrected vide Court order dated 25.02.2022
iv) The insurance company shall deposit the
aforesaid compensation amount within a period of
four weeks from the date of receipt of a certified
copy of this judgment.
v) No order as to costs.
vi) The amount deposited by the owner in MFA
Nos.32853/2013 and 32854/2013 is ordered to be
refunded to the owner on proper identification.
vii) In view of disposal of the main appeals, all the
pending I.As. stand disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
