Karnataka High Court
Muttappa @ Muttu vs Sahebgouda And Anr on 29 November, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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MFA No. 202509 of 2022
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL.FIRST APPEAL NO.202509/2022(MV)
BETWEEN:
MUTTAPPA @ MUTTU
S/O KALLAPPA DALAWAI,
AGE: 33 YEARS, OCC: DRIVER,
R/O ITANGIHAL,
TALUK AND DIST. VIJAYAPURA-586102.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR,ADVOCATE)
Digitally signed
by LUCYGRACE AND:
Location: HIGH
COURT OF 1. SAHEBGOUDA
KARNATAKA S/O BABAGOUDA BIRADAR,
AGE: 43 YEARS, OCC: BUSINESS,
R/O JALAGERI,
TALUK AND DISTRICT. VIJAYAPURA-586104.
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
1ST FLOOR, BIDARI COMPLEX,
S.S.FRONT ROAD,
VIJAYAPURA-586101.
...RESPONDENTS
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MFA No. 202509 of 2022
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
R1-V/O DATED 29.11.2023 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL
AND ENHANCE THE COMPENSATION AS CLAIMED IN THE
CLAIM PETITION BY MODIFYING THE JUDGMENT AND
AWARD DATED 15.04.2021 PASSED BY THE COURT OF I
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT -
VI, AT VIJAYAPURA, IN MVC NO. 75/2019.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the injured-claimant being
aggrieved by the judgment and award dated 15.04.2021
passed in MVC No.75/2019 by the I Additional Senior Civil
Judge and MACT-VI, Vijayapura (for short 'Tribunal'), by
which, the Tribunal while partly allowing the claim petition
awarded a sum of Rs.2,95,000/- with interest at 6% per
annum from the date of petition till realization. Further,
the Tribunal having found that the claimant himself had
contributed to the cause of accident, has assessed the
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negligence in the ratio of 50:50 and has directed the
Insurance Company to pay 50% of the award amount.
2. Brief facts of the case are that:
a) On 07.10.2018 at about 20:00 hours appellant-
claimant was riding a motorcycle bearing its
Reg.No.KA-28/EE-5440 towards Solapur bypass road
from Darga Cross side. At that time a Tractor-Trailer
bearing its Reg. No.KA-28/TB-8933-8934 was parked
negligently in the middle of the road without there
being any light, signal or signs indicating the parking
of the said Tractor-Trailer. The appellant not being
able to notice dashed the said parked vehicle,
resulting in accident suffering grievous injuries.
Thereupon, a claim petition is filed claiming
compensation of Rs.15,00,000/- on the premise that
the appellant was earning a sum of Rs.20,000/- per
month and due to injuries suffered in the accident he
is permanently disabled.
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b) Despite receipt of the summons respondent No.1-
owner of Tractor-Trailer did not appear before the
Tribunal and was placed ex-parte.
c) Respondent No.2 - Insurance Company appeared
through its counsel and filed statement of objections
denying the material averments and allegations
made in the claim petition. It also denied that the
accident in question had occurred due to negligence
on the part of the driver of Tractor-Trailer. It was
contended that the claimant himself has caused
accident due to his negligence by riding the
motorcycle in a rash and negligent manner. It is
however admitted that it issued a policy to
respondent No.1 covering the Tractor-Trailer and the
same was valid at the time of incident. It was
further contended that the driver of the Tractor-
Trailer did not have valid driving license to drive the
particular class of vehicle and there was violation of
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terms of the policy, as such, claim petition was
sought to be dismissed.
d) The Tribunal based on the pleadings, framed
issues and recorded the evidence. Claimant
examined himself as PW1 and exhibited 11
documents marked as Exs.P1 to P11. No witness has
been examined on behalf of respondents, except
marking certified copy of the policy as Ex.R1.
e) After appreciation of the pleadings and evidence,
the Tribunal held that the accident in question had
occurred on account of negligence on the part of
both, the driver of Tractor-Trailer, as well as the rider
of the motorcycle. Thus, the Tribunal held that there
was contributory negligence. The Tribunal assessed
the compensation payable to the claimant at
Rs.2,95,000/- and directed the Insurance Company
to pay 50% of the said compensation.
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3. Aggrieved by the impugned judgment and
award, the claimant is before this Court seeking
enhancement of compensation and for fixing the entire
liability on the Insurance Company.
4. Learned counsel for the claimant-appellant
reiterating the grounds urged in the memorandum of
appeal submits that the Tribunal grossly erred in
attributing negligence on the part of the appellant-
claimant merely relying upon the contents of the charge-
sheet and without there being any evidence whatsoever.
He submits that no witness has been examined on behalf
of Insurance Company to prove the factum of negligence
and the Tribunal could not have assumed and attributed
negligence on the part of the appellant-claimant.
5. As regards compensation is concerned, learned
counsel for the appellant-claimant submits that the
appellant was working as Driver earning Rs.20,000/- per
month. Due to accidental injuries, his earning ability has
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been drastically reduced. He also submits that the
Tribunal has not taken these aspects of the matter into
consideration and grant of compensation under other
heads is also on the lower side, hence, seeks for allowing
the appeal.
6. Smt. Preeti Patil Melkundi, learned counsel for
the Insurance Company on the other hand justifying the
impugned judgment and award passed by the Tribunal
vehemently submits that the very fact that the charge-
sheet has been filed both against the driver of the Tractor-
Trailer as well as the appellant-claimant is sufficient
enough to hold that there was contributory negligence on
their part. She further adds that the charge-sheet has not
been challenged by the appellant-claimant, which also
amounts to admission of the contents of the charge-sheet.
She submits that the Tribunal has taken note of these
aspects of the matter and has passed reasoned order
warranting no interference.
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7. As regards the enhancement of compensation is
concerned, it is her submission that the appellant-claimant
has not examined the Doctor to bring on record the
disability, if any, sustained by him and in the absence of
any material evidence, no fault can be found with the
order passed by the Tribunal awarding the compensation,
hence, seeks for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the records.
9. The points that arise for consideration in this
appeal are:
i. Whether the Tribunal in the in the facts
and circumstance of the case is justified
in attributing contributory negligence to
the extent of 50% on the part of the
appellant/claimant?
ii. Whether the appellant is entitled for
enhancement of compensation?
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10. The Division Bench of this Court in its order
dated 19.01.2021 passed in MFA No.6270/2016 C/W MFA
No.1878/2017 (MV-D) in the case of Sriram General
Insurance Company Limited Vs Vanajakshi and anr
dealing with identical situation at paragraph 7 has held as
under:
"It is well settled 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 to avoid the accident
by reasonable care and who then knew or
ought to have known the danger caused by the
other negligence in the case of contributory
negligence. [See SALAMOND ON THE LAW OF
TORTS, TWELETH EDITION 1957 PAGE NO.439-
441].
It is equally well settled that burden of proving
negligence lies on person who alleges it. The Apex
Court in the case of Municipal Corporation of Greater
Bombay Vs Lakshmanaiah and others reported in
2003(SC) 4182 has held that the crucial question in
the case of contributory negligence is whether party
could by reasonable care have avoided the
consequences of others negligence. The finding with
regard to contributory negligence has to be arrived
at on the basis of proper consideration of pleading
and legal evidences adduced by both the parties and
same cannot be based merely on police records.
[`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 also settled law burden to prove
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breach of duty on the part of the victim lies on the
insurance company and the insurance company has
to discharge the burden. [Usha Raj Khowa Vs
Paramount Industries (2009) 14 SCC 71].
11. Responsibility to avoid consequences of others
negligence becomes even more imperative and compelling
in the cases involving parked vehicle on the roads. It is
necessary at this juncture to refer Section 122 of the
Motor Vehicles Act, 1988 (fort short 'MV Act'), which
reads as under:
"122. Leaving vehicle in dangerous position.--
No person in charge of a motor vehicle shall
cause or allow the vehicle or any trailer to be
abandoned or to remain at rest on any public
place in such a position or in such a condition
or in such circumstances as to cause or likely
to cause danger, obstruction or undue
inconvenience to other users of the public place
or to the passengers."
12. The aforesaid provisions of MV Act read in the
light of the principles governing consideration of case of
negligence reinforces the fact that owner or attender of
the vehicle has a statutory obligation to ensure that he has
taken all precautionary measures while parking it on public
road. Case of this nature which involving accident
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between the parked vehicle and the moving vehicle, the
first and foremost obligation/burden to be discharged is on
the owner of the vehicle which is parked on the road and
prove that he had indeed complied with the requirement of
Section 122 of MV Act'. It is only thereafter, the
negligence, if any, on the part of other road users, the
claimant in this case, would arise. In the absence of
compliance to this statutory and elementary requirement it
is not possible to presume and attribute the negligence on
the part of claimant without there being any material
evidence on record. The Tribunal merely relying upon the
charge-sheet - Ex.P6 has come to the conclusion that
since the charge-sheet has been filed both against the
driver of the Tractor-Trailer and the appellant-injured and
the same not have been questioned, is evidence enough to
attribute contributory negligence on the part of both the
driver of Tractor-Trailer and rider of motorcycle. This in
the considered opinion of this Court is an erroneous
approach. It is necessary to refer to the contents of the
charge-sheet which reads as under:
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" ¸À¤ß¢ PÉÆlð ¸À® Ü ¹ÃªÉÄÃAiÀÄ «dAiÀÄ¥ÀÄgÀ ¸ÀAZÁj ¥Éưøï oÁuÉAiÀÄ ºÀ¢Ý ¥ÉÊQ
jAUï gÉÆÃqï CqÀ« ±ÀAPÀg° À AUï UÀÄrAiÀÄ DZÉ PÀ°è RtÂAiÀÄ ºÀwg Û À ¢£ÁAPÀ :
07/10/2018 gÀAzÀÄ 20.00 UÀAmÉAiÀÄ ¸ s ÀĪÀiÁjUÉ ZÁdð²Ãl PÁ®A £ÀA;12 £ÀªÀÄÆzÀ
ªÀiÁrzÀ A1 DgÉÆævÀ£ÀÄ ZÁ®£Á ¥Àgª À Á¤UÉ ¥ÀvÀæ E®èzÉ vÁ£ÀÄ £Àq¸ É ÀÄwÛzÀÝ
ªÉÆÃmÁgÀ ¸ÉÊPÀ® £ÀA; PÉJ;28/EE;5440 £ÉÃzÀP Ý ÉÌ E£ÀÄg
ì ÃÉ £Àì E®èzÉ vÁ£ÀÄ £Àq¸
É ÀÄwÛzÀÝ
ªÉÆÃmÁgÀ ¸ÉÊPÀ®£ÀÄß zÀUÁð PÁæ¸À PÀq¬ É ÄAzÀ jAUï gÉÆÃqÀ ªÀÄÄSÁAvÀgÀ ¸ÉÆ®¥sÁGgÀ
¨ÉÊ¥Á¸À PÀqU É É Cwà eÉÆÃj¤AzÀ ºÁUÀÆ ¤¸Á̼f À vÀ£À ¢AzÀ £ÀqɬĹPÉÆAqÀÄ ºÉÆÃV
EzÀg° À Aè iÀÄ A2 DgÉÆævÀ£ÀÄ vÀ£Àß mÁæöåPÀg Ö À £ÀA;PÉJ;28/n©;8933 ºÁUÀÆ mÁæ¬Ä°
£ÀA;PÉJ;28/n©8934 £ÉÃzÀ£ Ý ÀÄß ¸ÀAZÁgÀPÉÌ CqÀZu À É DUÀÄvÀzÛ .É CAvÁ w½zÀÄ AiÀiÁªÀÅzÉÃ
ªÀÄÄ£ÀÄZì £À É E®èzÉ gÉÆÃqÀ ªÀĸÀzÀåzÀ°è mÁæöåPÀg Ö £
À ÀÄß ¤°è¹zÀj Ý AzÀ A1 DgÉÆævÀ£ÀÄ
mÁæöåPÀg
Ö PÀ ÉÌ ºÁ¬Ä¹ C¥ÀWÁvÀ ªÀiÁrPÉÆAqÀÄ ¸ÁzÁ UÁAiÀÄ ¥ÉlÄÖ ªÀiÁrPÉÆArzÀÄÝ
mÁæöåPÀÖ ZÁ®PÀ ¸Àzg À À ¸ÀAUÀw oÁuÉUÉ w½¸ÀzÉ ºÉÆÃV A1 DgÉÆævÀ£ÀÄ PÀ®A; 279,
L¦¹ ºÁUÀÆ 3(1) gÉêÀÅ 181 ªÀÄvÀÄÛ 146 gÉêÀÅ 181 ªÀÄvÀÄÛ 146 gÉêÀÅ 196 JªÀiï «í
AiÀiÁPÀÖ ¥ÀP æ ÁgÀ ºÁUÀÆ A2 DgÉÆævÀ£ÀÄ PÀ®A; 283 337 L¦¹ ºÁUÀÆ 187 JªÀiï
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à ÀĪÀ C¥ÀgÁzÀ J¸ÀVzÀÄÝ EgÀÄvÀz Û .É "
13. Thus, perusal of the aforesaid contents of
charge-sheet would reveal that the Investigating Officer
has noted that the appellant-claimant who was riding
motorcycle did not have license to ride the vehicle and the
vehicle was not insured. Apparently, these two factors
have weighed in his mind to file a report that the claimant
was riding negligently. The further contents of the
charge-sheet as extracted hereinabove would indicate that
the Tractor-Trailer was parked by its driver knowing fully
well that the same would cause inconvenience to the other
road users and that there was no indication or signal
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provided by him. When the charge-sheet categorically
finds that the vehicle was parked by its driver knowing
fully well that the same would cause inconvenience to
others and that too without taking any precautionary
measures or indication, the same stands in violation to the
statutory provisions under Section 122 of MV Act extracted
hereinabove. Mere non possessing a driving license and
the vehicle not having been insured would not be grounds
or factors to attribute negligence though they may have a
different consequence of violation of relevant provisions of
applicability of the Act and Rules.
14. Since the respondent - owner of the tractor-
trailer did not even appear before the Tribunal placing his
defence, and in the light of the aforesaid contents of
charge-sheet read in the light of Section 122 of MV Act,
the Tribunal ought to have addressed these aspects and
answered this issue at the first instance. It might have
been a case for attributing negligence on the part of the
appellant-claimant if the first requirement of Section 122
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of MV Act was discharged. Since, that not having been
done in the first instance, merely based on the contents of
the charge-sheet, the Tribunal could not have arrived at
the conclusion that the claimant had also equally
contributed to the negligence in causing the accident,
more particularly when no witness has been examined by
the respondent-Insurance Company. It is this requirement
of non-compliance of statutory obligation contained under
Section 122 of MV Act and lack of discharge of burden by
respondent No.1 - owner of Tractor-Trailer by filing
statement of objections or entering the witness box, and
non production of cogent evidence by the respondent-
Insurance Company that has not been considered by the
Tribunal.
15. In the light of the aforesaid discussion and the
principles of determination of case of negligence and the
statutory provisions of Section 122 of MV Act, this Court is
of the considered view that the conclusion arrived at by
the Tribunal attributing contributory negligence to the
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extent of 50% on the part of appellant-claimant is not
sustainable and the same requires to be interfered and set
aside. The first point raised is answered accordingly.
16. Adverting to the second aspect of the matter
regarding claim of the appellant for enhancement of the
compensation, though it is claimed that the claimant was
earning Rs.20,000/- per month, no material evidence is
produced in this regard. That apart, though it is claimed
that the appellant has sustained grievous injuries resulting
in permanent disability there is no iota of evidence with
regard to the disability as claimed by the appellant.
Nothing prevented the claimant from examining the
treated Doctor or obtaining the Disability Certificate. No
fault can be found with the Tribunal in this regard.
However, it is necessary to reassess the compensation
awarded under other heads considering the nature of the
injuries and the length of treatment underwent by the
claimant. As per Ex.P4 claimant has suffered the following
injuries:
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"1) Cut Wound present on left earlobe
5 cm x 1 cm
2) Cut wound over centre of head
3) Bruins over left hand & finger
4) Bruins over left side lip.
5) Tongue bite (+)
6) Bleeding from mouth"
17. It is stated that the claimant underwent
treatment as an inpatient for a period of 35 days in
Gangamayi Hospital.
18. The Tribunal has awarded a sum of Rs.20,000/-
towards pain and suffering. This Court is of considered
view that an addition of Rs.10,000/- be made making it
Rs.30,000/- towards pain and suffering.
19. The Tribunal has awarded global sum of
Rs.25,000/- towards the disability and the same is
sustained.
20. The Tribunal has not awarded any amount under
the heads of loss of amenities, food and nourishment,
conveyance and loss of income during laid up period.
Considering the length of treatment as an inpatient for a
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period of 35 days in the Hospital compensation towards
attendant charges, food and nourishment, conveyance
needs to be awarded. The same is awarded at Rs.40,000/-
21. A sum of Rs.25,000/- is awarded towards loss of
amenities.
22. A sum of Rs.22,500/- is awarded towards loss of
income during laid up period.
23. The Tribunal has awarded a sum of
Rs.2,50,000/- towards medical expenses. The same is
maintained as it is.
24. Thus, the claimant is held entitled for a total
compensation of Rs.3,92,500/- instead of Rs.2,95,000/-
awarded by the Tribunal as under:
Sl. Heads By By
No. Tribunal this Court
1 Loss of future ---- ----
earning
2 Towards pain and Rs.20,000/- Rs.30,000/-
suffering
3 Toward loss of ---- Rs.25,000/-
amenities
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4 Towards attendant, ---- Rs.40,000/-.
nourishment and
Conveyance.
5 Loss of income ---- Rs.22,500/-
during period of
treatment
6. Towards medical Rs.2,50,000/- Rs.2,50,000/-
expenses
7. Towards disability Rs.25,000/- Rs.25,000/-
Total Rs.2,95,000/- Rs.3,92,500/-
25. For the foregoing reasons, following:
ORDER
a) The appeal is partly allowed.
b) The appellant/claimant is held entitled for a
total compensation of Rs.3,92,500/- instead of
Rs.2,95,000/- awarded by the Tribunal with
interest at 6% per annum from the date of
claim petition till realization.
c) Respondent No.2 - Insurance Company shall
pay the aforesaid compensation amount within
a period of 30 days from the date of receipt of
certified copy of this judgment.
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d) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
SBS, RL
