Karnataka High Court
Murtuz S/O Faqirsaheb Awati vs The General Manager And Anr on 5 March, 2025
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MFA No. 200236 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200236 OF 2019 (MV-D)
BETWEEN:
MURTUZ S/O FAQIRSAHEB AWATI,
AGE: 71 YEARS, OCC: AGRICULTURE & COOLIE,
R/O VIVEK NAGAR, IBRAHIMPUR,
VIJAYAPURA-586 101.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. THE GENERAL MANAGER,
REDDI SAHAKARI BANK NIYAMITHA,
DHARWAD, DHARWAD,
Digitally signed OWNER OF BOLER JEEP NO.KA-25/P-2616.
by SHIVALEELA
DATTATRAYA
UDAGI
Location: HIGH 2. THE BRANCH MANAGER,
COURT OF
KARNATAKA NATIONAL INSURANCE COMPANY LIMITED,
BHIND S.S. TEMPLE, HERALAGI BUILDING,
S.S. CROSS ROAD, VIJAYAPUR-586 101,
POLICY NO.61050031156100001599,
VALID FROM 11.05.2016 TO 10.06.2017,
DATE OF ACCIDENT 01.10.2016.
...RESPONDENTS
(BY SRI. SHARANABASAPPA M. PATIL, ADV. FOR R2;
V/O DTD. 29.03.2019, NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 200236 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 27.11.2018 PASSED BY THE III
ADDL. DISTRICT JUDGE AND MACT-IV VIJAYAPUR IN MVC
NO.1921/2016.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
1. Heard learned counsel for the appellant and the
respondent.
2. Being aggrieved by the judgment and award in
MVC No.1921/2016 dated 27.11.2018 by the learned
III-Addl. District Judge & MACT-Vijayapura, the petitioner
is before this Court in appeal challenging the contributory
negligence of 40% and the quantum of compensation
awarded by the Tribunal.
3. The factual matrix of the case as may be seen
from the records is that on 01.10.2016 at about 12
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noon, the petitioner after dropping his grand son at Jain
school was returning by riding his two wheeler bearing
number KA-28/ED-0342 towards Vijayapura and a
Bolero Jeep bearing number KA-25/P-2616 came from
Kolhar towards Vijayapura and dashed to the two
Wheeler of the petitioner resulting in he sustaining
injuries like fracture of the left Tibia, left shaft and lower
1/3rd of fibula with crush injuries. He was taken to
District Hospital Vijayapura and thereafter to
Yashodhara Hospital, Solapur, where his left leg was
amputated above knee. Petitioner contended that he
was aged 68 years at the time of the accident, was an
agriculturist and as such he has lost his earning capacity
and he being rendered dependent on others, is entitled
for adequate compensation.
4. On being served with the notice, the owner of
the Bolero Jeep i.e. respondent No.1 did not appear and
as such he was placed ex-parte. The respondent No.2-
insurance company appeared and filed written
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statement. The respondent No.2 contended that though
the policy was valid as on date of the accident, the
petitioner himself has caused the accident and as such
the insurance company be absolved from the liability. It
was contended that the negligence was on the part of
the petitioner since he without looking to the oncoming
vehicle, tried to cross the road on his two Wheeler and
therefore there was negligence on the part of the
petitioner. Inter-alia, it also denied the age, income and
occupation of the petitioner and termed the
compensation claimed as highly exorbitant imaginary
and untenable. It was also alleged that the driver of the
bolero Jeep had violated the terms and conditions of the
policy and therefore the petition be dismissed as against
the respondent No.2.
5. On the basis of the above contention, the
Tribunal framed appropriate issues and the petitioner
was examined as PW-1 and the Doctor who assessed his
disability was examined as PW2; Ex.P1 to 20 were
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marked in evidence. The respondent No.2 marked copy
of the insurance policy as Ex.R1 by consent and no
ocular evidence was led by it. After hearing the
arguments, the Tribunal has awarded a sum of
`10,03,800/- and fastened 40% of the contributory
negligence on the petitioner.
6. The arguments by learned counsel appearing
for the petitioner and the learned counsel appearing for
the respondent No.2-insurance company are heard.
7. The learned counsel appearing for the
appellant/petitioner contends that the Tribunal erred in
fastening 40% of the liability upon the appellant. It is
contended that though the complaint mentioned that the
petitioner was crossing the road, in fact he was
returning from Jain school towards Vijayapura, but the
charge sheet mentioned otherwise. All along it is the
consistent case of the petitioner that he was returning to
Vijayapura after dropping his grandson to the school.
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Therefore, the petitioner was entering the Kolhar-
Vijayapura road from Jain school Cross Road. After he
had entered the main road, the Bolero Jeep came from
behind and even though the petitioner was on the
extreme left side of the road, it dashed against him
resulting in the injuries to the petitioner. Therefore,
there is no contributory negligence on the part of the
petitioner and as such the said finding of the Tribunal is
liable to be set aside.
8. The next argument by learned counsel for the
petitioner is about the quantum. He contends that the
PW2, though he is not a Doctor who had treated the
petitioner, had deposed that there is disability of 65%,
the Tribunal failed to assess the functional disability of
the petitioner when he is aged 68 years. In his
submission, it is contended that the Tribunal should
have considered the disability of 65% as the functional
disability. Therefore, he contends that the compensation
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awarded by the Tribunal is on the lower side and the
same needs to be reassessed.
9. Per contra, learned counsel appearing for the
respondent No.2 would submit that the discrepancy in
the contention of the petitioner and the charge sheet
would go to show that though the petitioner had
contended that he was returning to Vijayapura from Jain
school, in fact he was going towards Jain school from
Vijayapura and he abruptly took his vehicle to the right
side and as such the Bolero jeep collided with the two
wheeler of the petitioner. Therefore, he submit that the
charge sheet being more reliable than other contentions
and documents, the Tribunal is justified in holding 40%
contributory negligence to the petitioner. Regarding
quantum of the compensation, he contends that the
disability assessed by the Tribunal at 33% is proper and
correct and therefore there is no need for reassessing
the same. In this regard he relies on the schedule to
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the E.C.Act which says that the disability should be
33%.
10. In the above background, it is necessary to
consider the manner in which the accident had occurred
so as to ascertain the contributory negligence on the
part of the petitioner.
11. The perusal of the complaint Ex.P2 would
show that one Abhrar Ahammad had lodged the
complaint and he had stated that the petitioner had
gone to Jain school and was returning from the school at
about 12 noon and while going towards Vijayapura, the
Bolero jeep came and dashed to the two wheeler of the
petitioner. However, after investigation, the police filed
the charge sheet as per Ex.P6 wherein it is mentioned
that the petitioner came from the opposite direction of
the Bolero Jeep and while going towards Jain school, the
Bolero Jeep dashed against the two wheeler. Ultimately
the driver of the Bolero Jeep was prosecuted by the
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police. It is pertinent to note that except the spot
mahazar at Ex.P3, no other investigation papers to
assess the manner in which the accident occurred are
produced. The statement of the witnesses and other
material would have been relevant in order to ascertain
as to how the I.O. came to the conclusion that the
petitioner was going towards Jain school but not
returning from the Jain school.
12. The perusal of the spot mahazar at Ex.P3
would indicate that it also mentioned that the petitioner
was returning from the Jain school and was going
towards Vijayapura. The spot mahazar depicts that the
accident occurred when the petitioner had entered the
Kolhar-Vijayapura road and had passed about 30 feet
from the cross road. In other words, he was on
Vijayapura road to the extent of about 30 feet from the
cross road and the spot is situated about 2 feet away
from the edge of the tar road. Obviously the tar road is
measuring 24 feet wide. From the perusal of the police
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papers, it is evident that the Bolero jeep driver was well
within the view of any person entering from the cross
road to the main road. As per the motor vehicle
regulations, any driver has to be cautious while he is
approaching any junction. Though, the approach road
towards Jain school is a cross road, it is evident that the
Jeep driver was in full view of any person who is
entering the main road.
13. So far as the petitioner is concerned, he was
coming from the Jain school as per his deposition and
complaint and his pleadings before the Tribunal. His
stand is consistent from the beginning. Even the cross
examination of PW1 shows that there is no suggestion
that he was coming from Vijayapura towards the Jain
school. Therefore, it has to be accepted that the
petitioner was going towards Vijayapura from Jain
school at about 12 noon and then the accident had
occurred.
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14. The above conclusion would result in holding
that when the petitioner entered the main road, he was
on the extreme left side and therefore the accident
occurred in the mud road but not on the tar road. This
circumstance is not explained either in the cross
examination of the PW1 or during the arguments by the
learned counsel for the respondent No.2.
15. The Tribunal in the impugned judgment, in
para 17 states that there are three versions and
ultimately it concludes that the charge sheet is more
reliable. However it fails to notice that in the cross
examination of the PW1, a suggestion is put to the PW1
that he was driving the two wheeler from Jain school
towards Vijayapura. In that view of the matter, the
conclusions reached by the Tribunal that the petitioner
was going from Vijayapura towards Jain school cannot
be held to be correct.
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16. The conclusions of the above discussions
would lead us to the fact that the care and caution that
should have been exercised by the Bolero Jeep driver
was on the higher side since he was in full view of the
cross road and a person entering from the cross road to
the main road could have been seen by him. Moreover,
it being a school zone, any driver on the main road is
bound to drive slowly. Hence, the fastening of
contributory negligence on the part of the petitioner is
not proper and correct. To that extent, the conclusions
of the Tribunal are perverse and not sustainable in law.
17. Coming to the quantum of the compensation,
the Tribunal has held that the functional disability is
33% since PW 2 had stated that the disability is a 65%.
There is no such formula to hold that the physical
disability stated by a medical practitioner should be
divided by 2 or 3 to assess the functional disability. The
relationship between the physical disability and
functional disability has to be with reference to the
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avocation of the petitioner, age of the petitioner and the
effect of the physical disability, which he may suffer in
the rest of his life. Therefore, when the petitioner states
that his age is 68 years and he was an agriculturist, the
functional disability on account of the amputation of his
left leg above knee has to be assessed by the Tribunal.
The tribunal having failed to do assess the functional
disability, it is the responsibility of this Court to assess
the same. Having considered the age and occupation of
the petitioner, this Court is of the view that the
functional disability is 70%. This Court hasten to add
that if the petitioner was of the younger age, the
functional disability would have been different.
18. The petitioner has contended that he was
having a monthly income of `8,000/-, the said income
claimed by the petitioner being in consonance with the
wages fixed under the minimum wages act for the year
2016, the Tribunal erred in holding that the notional
income of the petitioner is Rs.6,000/-. Therefore the
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loss of future earning is calculated as `8,000/- x 12 x 5
x 70% = `3,36,000/-.
19. The Tribunal has not awarded any
compensation under the head of loss of amenities in life.
Therefore, it would be just and proper to award sum of
`75,000/- under this head.
20. The tribunal has not awarded any
compensation under the head of loss of income during
laid up period. Looking to the nature of injuries it can
safely be held that the petitioner was unable to come
out of his dependency on others at least for a period of
6 months. Therefore, `8,000 x 6 = `24,000/- is
awarded.
21. The compensation under the remaining heads
do not require any enhancement. Hence, the petitioner
is entitled for a total compensation of `12,60,000/-
under the following heads.
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1. Pain and suffering `50,000/-
2. Loss of future earning `3,36,000/-
3. Artificial Limb `25,000/-
4. Medical expenses, attendant charges, `7,50,000/-
nourishment
5. Loss of income during laid up period `24,000/-
6. Loss of amenities `75,000/-
Total `12,60,000/-
22. Hence, the following:
ORDER
i) The petition is allowed in part.
ii) The petitioner is entitled for a sum of
`12,60,000/- instead of `10,03,800/- awrded by
the Tribunal along with interest at the rate of 6%
per annum, from the date of petition till its
realization.
iii) The order fastening 40% of contributory
negligence on the petitioner in set aside.
iv) The respondent No.2 - Insurance Company is
directed to deposit the compensation amount
with interest within 04 months from the date of
this judgment.
v) Rest of the order passed by the Tribunal remain
unaltered.
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vi) The Registry to send back the Trial Court Records
to the concerned Court.
Sd/-
(C M JOSHI)
JUDGE
SMP
CT: AK
