Karnataka High Court
Arun S/O Basavani Dolelar vs Amol Harish Jankar on 6 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 104116 of 2016
C/W MFA No. 104095 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 104116 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 104095 OF 2016 (MV-I)
IN MFA.NO. 104116/2016
BETWEEN:
VINAYAK BABU DOLEKAR,
AGE: 24 YEARS, OCC: CENTERING-BAR
BENDING (NOW NIL), R/O: CHAVAT GALLI,
SAMBRA, BELAGAVI-591124.
...APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. AMOL HARISH JANKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.409, AT/POST: KALHER,
TQ: BHIVANDI, DIST: THANE,
JAGADISH MAHARASHTRA-421 301.
TR
2. THE DIVISIONAL MANAGER,
Digitally signed by
JAGADISH T R MAGMA HDI GENERAL INSURANCE CO.LTD.,
Date: 2023.12.12
15:06:00 +0530 GROUND FLOOR, OFFICE NO.1 AND 2,
WADKE DIAMOND, COMMERCIAL COMPLEX,
CHS LTD., SUHASH LANE,
OFF DAFFTARY ROAD,
NEAR VAISHNIDEVI MANDIR,
MALAD EAST-MUMBAI,
MAHARASHTRA-400097.
...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 16.06.2016 PASSED
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MFA No. 104116 of 2016
C/W MFA No. 104095 of 2016
IN MVC NO.1611/2015 ON THE FILE OF THE VI-ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA.NO. 104095/2016
BETWEEN:
ARUN S/O BASAVANI DOLELKAR,
AGE: 33 YEARS, OCC: CENTERING-BAR
BENDING CONTRACTOR (NOW NIL),
R/O MAHADEV NAGAR, SAMBRA,
BELAGAVI-591124.
...APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. AMOL HARISH JANKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.409, AT/PT: KALHER,
TQ: BHIVANDI, DIST: THANE,
MAHARASHTRA-421 301.
2. THE DIVISIONAL MANAGER,
MAGMA HDI GENERAL INSURANCE CO.LTD.,
GROUND FLOOR, OFFICE NO.1 AND 2,
WADKE DIAMOND, COMMERCIAL COMPLEX,
CHS LTD., SUBASH LANE,
OFF DAFFTARY ROAD,
NEAR VAISHNIDEVI MANDIR,
MALAD EAST-MUMBAI,
MAHARASHTRA-400097.
...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 16.06.2016 PASSED
IN MVC NO.1610/2015 ON THE FILE OF THE VI-ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No. 104116 of 2016
C/W MFA No. 104095 of 2016
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.104116/2016 is filed by the injured pillion rider,
who sustained injuries in the road accident on 28.01.2015,
whereas MFA No.104095/2016 is filed by the rider of a Motor
Cycle bearing No.KA-22-EM-8907. Both these appeals are filed
against the common judgment and award dated 16.06.2016
passed by the learned VI Additional District and Sessions Judge
and Additional MACT, Belagavi, whereby the claim petitions
filed by the appellants in these appeals have been allowed
partly holding the appellants i.e., rider and pillion rider were
negligent and contributed to the accident and fastening the
liability to an extent of 40% on them and 60% liability on the
offending car bearing Reg.No.MH-04-GC-7603.
2. The brief facts leading to filing of these appeals are
that on 28.01.2015, the appellants/rider and pillion rider were
proceeding on Motor Cycle bearing No.KA-22-EM-8907, when
they reached near Honaga Village and about to join NH-4,
offending car driving by its driver in a rash and negligent
manner and dashed to the Motor Cycle resulting in sustained
grievous injuries to the appellants.
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3. The claim petition is opposed by the
respondent/Insurance Company by contending that the
accident in question has happened due to negligence of the
rider and pillion rider of the Motor Cycle and the Insurance
Company is not liable to pay any compensation to such injuries.
The Tribunal framed the issues and recorded the evidence of
the parties and awarded a compensation of Rs.6,80,000/- in
MVC No.1610/2015 (i.e., MFA No.104095/2016) and awarded
Rs.8,50,000/- in MVC No.1611/2015 (i.e., MFA
No.104116/2016).
4. Being aggrieved by the common judgment and
award, present appeals are filed.
5. The learned counsel Sri. Vittal S. Teli, appearing for
the appellant at the outset submits that he would restrict his
appeal only insofar as fixing the liability on the rider and pillion
rider by the Tribunal and award of compensation by the
Tribunal is in consonance with the provision of law.
6. It is submitted that the Tribunal at paragraph-10
has recorded the incorrect finding that the rider as well as
pillion rider have contributed to the accident in question based
on the sketch on Ex-R1, which is contrary to settled position of
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law as the insurance company has not adduced any evidence
before the Tribunal to contend that the rider as well as pillion
rider were negligent and have contributed to the accident in
question and in the absence of any independent evidence on
record the tribunal incorrectly has come to the conclusion that
the rider and pillion rider had contributed to the accident in
question, fastening liability to an extent of 40% on the
claimants is required to be interfered with in the present
appeals. In support of his contention, he places reliance on a
decision of the Hon'ble Supreme Court in the case of Mangla
Ram vs Oriental Insurance Company Limited and others1.
7. It is further contended that the Tribunal has erred
in fastening the liability on the pillion rider, as he was not riding
the motor cycle and there cannot be any negligence on his
part. Hence, fastening of liability to the extent of 40% on the
pillion rider is contrary to the settled position of law, he seeks
to allow the appeals.
8. Per contra, learned counsel Sri. Nagaraj C Kolloori,
appearing for the respondent No.2/Insurance Company
supports the impugned judgment and award of the Tribunal
(2018) 5 SCC 656
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and submits that the Tribunal has recorded a categorical finding
that the rider and pillion rider were negligent and contributed to
the accident in question. In their oral evidence, they have
stated that the Highway Work was going on, hence the
movement of vehicles was diverted, which is a false statement
made by the claimants and considering the said aspect, the
Tribunal has proceeded to fasten the liability to the extent of
40%, which does not call for any interference in these appeals.
9. Having heard the learned counsel for the
appellants, learned counsel for the respondents, perused the
Memorandum of Appeal and the Tribunal records, the only point
that arises for consideration in these appeals is:
Whether the Tribunal was justified in holding
that the rider and pillion rider were negligent and
contributed to the accident in question and fastening
40% liability on them?
The answer to the above point is in Negative for the
following reasons;
(a) The parties to the proceedings do not dispute that
both the appellants have sustained grievous injuries
in the road accident occurred on 28.01.2015 and it
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is also not in dispute that the appellants were
proceeding on Motor Cycle bearing No.KA-22-EM-
5097, at that time, offending car bearing
Registration No.MH-04-GC-7603, dashed the Motor
Cycle, which resulted in accident in question.
(b) On perusal of the sketch on EX-R1, it is evident that
the accident has taken place on NH-4. However,
EX-R1 indicates that the appellants have
contributed to the said accident in question.
Admittedly, the Investigation Officer after
completion of the investigation filed charge-sheet
against the rider of the Motor Cycle.
(c) It is also not in dispute that the Insurance Company
has not adduced any evidence before the Tribunal
to substantiate their contention that the rider as
well as pillion rider were negligent and have
contributed to the accident. In the absence of any
independent evidence on record, Tribunal has
committed grave error in holding that rider and
pillion rider were negligent and same have
contributed to the accident.
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(d) It would be useful to refer decision of the Hon'ble
Supreme Court in the case of Mangla Ram supra.
The relevant paragraphs are extracted herein
below;
31. Be that as it may, the next question is
whether the Tribunal was justified in concluding
that the appellant was also negligent and had
contributed equally, which finding rests only on the
site map (Ext. 2) indicating the spot where the
motorcycle was lying after the accident?
32. We find substance in the criticism of the
appellant that the spot where the motor vehicle
was found lying after the accident cannot be the
basis to assume that it was driven in or around that
spot at the relevant time. It can be safely inferred
that after the accident of this nature in which the
appellant suffered severe injuries necessitating
amputation of his right leg above the knee level,
the motorcycle would be pushed forward after the
collision and being hit by a high speeding jeep.
Neither the Tribunal nor the High Court has found
that the spot noted in the site map, one foot wrong
side on the middle of the road was the spot where
the accident actually occurred. However, the
finding is that as per the site map, the motorcycle
was found lying at that spot. That cannot be the
basis to assume that the appellant was driving the
motorcycle on the wrong side of the road at the
relevant time. Further, the respondents did not
produce any contra evidence to indicate that the
motorcycle was being driven on the wrong side of
the road at the time when the offending vehicle
dashed it. In this view of the matter, the finding of
the Tribunal that the appellant contributed to the
occurrence of the accident by driving the
motorcycle on the wrong side of the road, is
manifestly wrong and cannot be sustained. The
High Court has not expressed any opinion on this
issue, having already answered the issue about the
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non-involvement of the offending vehicle in favour
of Respondents 2 & 3.
33. In other words, we are inclined to hold that
there is no title of evidence about the motorcycle
being driven negligently by the appellant at the
time of accident. The respondents did not produce
any such evidence. That fact, therefore, cannot be
assumed. Resultantly, the argument of the
respondents that the appellant did not possess a
valid motorcycle driving licence at the time of
accident, will be of no significance. Thus, we hold
that there is no legal evidence to answer the issue
of contributory negligence against the appellant.
34. The next question is about the quantum of
compensation amount to be paid to the appellant.
The Tribunal noted the claim of the appellant that
he was getting Rs 1500 per month towards his
salary and Rs 600 per month towards food
allowance from Bhanwar Lal. The fact that the
appellant had possessed heavy transport motor
vehicle driving licence has not been doubted. The
driving licence on record being valid for a limited
period, cannot be the basis to belie the claim of the
appellant duly supported by Bhanwar Lal, that the
appellant was employed by him on his new truck.
Besides the said income, the appellant claimed to
have earning of Rs 1000 per month from farming
fields. In other words, we find that the Tribunal has
not analysed this evidence in proper perspective.
The Tribunal, however, pegged the loss of monthly
income to the appellant at Rs 520 per month while
computing the compensation amount on the finding
that there was no convincing evidence about
complete non-employability of the appellant.
Further, no provision has been made by the
Tribunal towards future prospects. The Tribunal,
therefore, should have computed the loss of income
on that basis. Additionally, the appellant because of
amputation of his right leg would be forced to
permanently use prosthetic leg during his lifetime.
No provision has been made by the Tribunal in that
regard. On these heads, the appellant is certainly
entitled for enhanced compensation.
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35. The next question is about the liability of
insurer to pay the compensation amount. The
Tribunal has absolved the Insurance Company on
the finding that no premium was received by the
Insurance Company nor was any insurance policy
ever issued by the Insurance Company in relation
to the offending vehicle. Respondents 2 and 3 had
relied on a cover note which according to
Respondent 1 Insurance Company was fraudulently
obtained from the then Development Officer, who
was later on sacked by Respondent 1 Insurance
Company. The possibility of misuse of some cover
notes lying with him could not be ruled out.
10. Keeping in mind aforesaid law laid down by the
Hon'ble Supreme Court referred to supra, this Court is of the
considered view that there is no evidence available on record to
come to conclusion that the appellants were negligent in riding
the Motor Cycle and have contributed to the accident in
question. Hence, this Court is of the considered view that the
Tribunal has committed a grave error by placing only reliance
on EX-R1-the spot sketch and come to the conclusion that the
appellants were negligent and contributed to the accident in
question. The entire charge-sheet papers indicate that the
driver of the offending Vehicle was negligent, which resulted in
the accident in question.
11. Hence, this Court holds that the driver of the
offending car bearing No. MH-04-GC-7603 was negligent and
contributed to the accident in question and the respondent
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No.2/Insurance Company being the indemnifier of the said
offending car is liable to pay the entire compensation.
12. For the above mentioned reasons we pass the
following:
ORDER
a) The MFA No.104116/2016 and MFA
No.104095/2016 are allowed in part.
b) The impugned judgment and award dated
16.06.2016 passed in MVC No.1611/2015 by the
learned VI Additional District and Sessions Judge and
Additional MACT, Belagavi, is set aside to the extent
of fastening of 40% liability on the appellant by
holding that the Insurance Company is liable to pay
the entire compensation to the appellant.
c) Registry to transmit the TCR to the Tribunal
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
