D R Shesha Reddy vs National Insurance Co Ltd
2022 Latest Caselaw 12327 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF OCTOBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.2085/2013 (MV)

BETWEEN:

D.R. SHESHA REDDY
S/O LATE RAMA REDDY
AGED ABOUT 87 YEARS
R/AT NO.60/A, 2ND MAIN
2ND CROSS, 2ND PHASE
MANJUNATH NAGAR
RAJAJINAGAR
BENGALURU-560010.                             ... APPELLANT

              (BY SRI D.S.SRIDHAR, ADVOCATE)

AND:

1.     NATIONAL INSURANCE CO. LTD.,
       NO.144, SUBHARAM COMPLEX
       M.G.ROAD, BENGALURU-1
       BY ITS MANAGER

2.     SHIVALINGAIAH
       S/O MALLAPPA
       R/AT NO.803, NEW NO.515
       II CROSS, LAGGERE
       CHOWDESWARINAGARA
       BENGALURU-550 058.                   ... RESPONDENTS

 (BY SRI H.S.LINGARAJ, ADVOCATE FOR R-1 [THROUGH VC];
              VIDE ORDER DATED 21.03.2014,
            NOTICE TO R-2 IS DISPENSED WITH)
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     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.11.2012
PASSED IN MVC NO.4477/2011 ON THE FILE OF THE MEMBER,
MACT-5, 8TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING    ENHANCEMENT      OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel appearing for the appellant and

the learned counsel appearing for respondent No.1.

2. This appeal is filed challenging the judgment and

award dated 09.11.2012 passed in M.V.C.No.4477/2011 on the

file of Motor Accident Claims Tribunal, VII Additional Judge,

Court of Small Causes (SCCH-5), Bengaluru ('the Tribunal' for

short), questioning the quantum and the contributory negligence

to the extent of 30% arrived by the Tribunal.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The Tribunal while considering the material on record

taken note of the contributory negligence on the part of the

petitioner to the extent of 30% and 70% on the part of the rider

of the motorcycle. It is emerged in the evidence that the

claimant was crossing the road where there is no any provision

for crossing the road. Hence, comes to the conclusion of 30%

and the records also reveal that the injured is also aged about

85 years at the time of the accident. The fact that he was

crossing the road is not in dispute and certain degree of

contributory negligence to be taken in a case of pedestrian is

crossing the road at the place where there is no any provision for

crossing the road.

5. I have already pointed out that there was no any

zebra crossing and the aged person was crossing the road and

the Tribunal taken the contributory negligence to the extent of

30% i.e., on higher side and the motorcyclist came towards

extreme left side of the road and the claimant is also just hardly

at the distance of 4 feet from the edge of the road and instead of

the rider riding the motor cycle in a right direction i.e., straight

he came towards the left side of the road and hit the pedestrian.

Hence, it is appropriate to take the negligence to the extent of

20% and not 30%.

6. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

      (ii)    The impugned judgment and award of the
              Tribunal   dated     09.11.2012,   passed       in

M.V.C.No.4477/2011 is modified, apportioning the negligence 20% on the appellant and 80% on the rider of the motorcycle.

(iii) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

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