Bangalore District Court
Manjunath M vs ) M/S.S.M.L.Power Solutions on 19 April, 2022
1
KABC020327262018
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 19TH DAY OF APRIL'2022
PRESENT : SMT.PRABHAVATI M.HIREMATH, B.A.,LL.B., (Spl.,)
MEMBER, PRL. M.A.C.T.,
M.V.C. No.7656/2018
PETITIONER: MANJUNATH M.,
S/o.Munishamappa,
Aged about 22 years,
Residing at 2nd Floor,
Venkatamma Building,
2nd Cross, Nanjundappa Layout,
Near Venkataramanaswamy Temple,
M.G.Palya, Bommanahalli,
Bangalore 560 068.
(By K.N.Paramesha, Advocate)
- V/s -
RESPONDENTS: 1) M/s.S.M.L.Power Solutions,
No.62/30, 5th A Cross,
Opp.Chaya Developers,
Isec Main Road, Nagar Bhavi,
Bangalore 560 072.
(R.C Owner of Bolero Goods bearing
Reg.No.KA.05/AE.9187)
2) KOTAK MAHENDRA GENERAL
INSURANCE CO., LTD.,
Zoom IV, 8th Floor, Infinity Park,
A.K.Vaidya Marg, Malad E,
2
Mumbai 400 097.
(Policy No.1029978600
Valid from 21.04.2018 to 20.04.2019)
(Respondent No.1 by
D.N.Dhruvakumar, Advocate)
Respondent No.2 - Kiran Pujar,
Advocate)
*******
JUDGMENT
This is a petition filed under Section 166 of the Motor Vehicles Act.
2. Brief facts of the petition are as follows:-
On 05.10.2018, at about 8.15 pm., the petitioner was riding motorcycle No.KA.51/ER.7363, on NICE Road, along with one Ajay as pillion rider. When he was proceeding near Sompura Lake, the driver of the Bolero goods vehicle No.KA.51/AE.9187 had parked his punctured vehicle in the middle of the road, without keeping any board or putting any signal. In the process, the petitoner lost control over the motorcycle and dashed to the Bolero Goods Vehicle to its backside. Consequently, the petitioner and the pillion rider fell down and sustained grievous injjries and the pillion ridere succumbed to fatal injuries on the spot.
3. Immediately after the accident, the petitioner was shifted to Sai Ram Hospital and for further treatment, he was referred to Sanjay Gandhi Hospital. He has taken treatment as 3 an inpatient from 07.10.2018 to 26.10.2018. The petitioner has sustained femur fracture, serious injuries to head and other grievous injuries all over the body. He underwent surgery ie., closed reduction and internal fixation with CC screws on 20.10.2018. Even after discharge from the hospital, he was advised not to bear weight, not to invovle in any straneous activities and advised for complete bed rest. He has spent morethan Rs.75,000/- towards medical expenses and conveyance and nourishment.
4. The petitioner is requried to undergo one more surgery for removal of implant. He has not fully recovered from the injuries sustained in the accident. He is getting head ache and giddiness frequently. He cannot carry weight, sit and squat, cannot ride and drive any vehicle. Therefore, he is facing permanent disability.
5. Prior to the accident, the petitioner was hale and healthy, earning his livelihood by driving car and used to earn Rs.25,000/- per month and contributing entire earnings for the maintenance of the family.
6. Only due to the rash or negligent act of parking of the Bolero Goods Vehicle in the middle of the road without taking any precautionary measures, the accident occurred.
7. The respondent No.1 being the RC Owner and the respondent No.2 being the Insurer of the Bolero Goods Vehicle, 4 are jointly and severally liable to pay compensation to the petitioner. Therefore, a total compensation of Rs.8 lakhs is claimed from the respondents.
8. After service of notice of this petition, both the respondents entered appearance through their respective advocates and filed statement of objections.
9. In his statement of objections, the repsondent No.1 has contended that neither himself nor his vehicle No.KA.05/EE.9187 were involved in the accident and he is the owner of the said vehicle. He has insured the said vehicle with the second respondent. The insurance policy was in force from 21.04.2018 to 20.04.2019. The repsondent No.1 was holding valid and effective driving licence. He has not violated any traffic rules. Therefore, the respondent No.1 is not liable to pay any compensation and prayed to dismiss the petition as against him.
10. Contentions raised by the respondent No.2, in its statement of objections, in brief, are as under:-
Second respondent is the insurer of the Bolero Goods Vehicle No.KA.05/AE.9187. Laibility to indemnify the first respondent is subject to terms and conditions of the policy. Holding of valid and effective driving licence, valid Permit, RC and FC are pre-requisites to indemnify the liability. The respondent No.1 has not complied with the mandatory requirements of Section 134(c) of the MV Act. The Police have not complied with the requirements of Section 158(6) of the MV Act.5
11. The averments in the petition with reference to mode of occurence of accident is denied. There is no negligenct act on the part of the driver of the Bolero Goods Vehicle. The rider of the motorcycle No.KA.51/ER.7363 was solely responsible for the accident. As per the FIR, the rider of the motorcycle was solely responsible for the accident. A tort feasor cannot make benefit of his own negligence. The petitioner himself was solely negligent in causing the accident, thereby the claim petition is not maintainable, for one's own negligence and prayed to dismiss the petition.
12. It is further contended that the insured Bolero Goods Vehicle was falsely implicated by the petitioner in collusion with the owner of the vehicle and the Police. There is delay in lodging the complaint. No valid reasons are assigned for the delay in lodging the complaint. At the time of accident, neither the petitioner nor the pillion rider were wearing ISI Mark helmet, thereby, they have sustained head injuries. Therefore, the rider and the pillion rider themselves are responsible for the accident by violating the provision of the Motor Vehicles Rules.
13. The driver of the Bolero Goods Vehicle was not holding valid and effective driving licence. There is violation of conditions of the policy.
14. Averments of the petition with reference to age, avocation and income of the petitioner is denied, by stating that 6 the petitioner is required to prove the same and prayed to dismiss the petition.
15. From the above pleadings of the parties, following Issues are settled for trial by the 10 th ASCJ and ACMM, Bengaluru, prior to withdrawal and assigning the above case to this Tribunal:
1) Whether the petitioner proves that he sustained grievous injuries due to the Road Traffic Accident alleged to have occurred on 05.10.2018 at about 08.10 pm., due to the rash and negligent driving of the driver of the Bolero Goods bearing registration No.KA.05/AE.9187?
2) Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?
3) What order or award?
16. In support of the petitioner's case, the petitioner got examined himself as PW 1 and also examined the doctor as PW 2 and got marked in all 14 documents as Ex.P.1 to P.14.
17. In support of the respondents' case, the Investigating Officer of the case has been examined as RW 1 and the 7 Dy.Manager of the Insurance Company is examined as RW 2 and they have not got marked any documentary evidence.
18. Heard arguments on both sides.
19. For the reasons stated in the subsequent paragraphs, I answer Issues as under:-
1) Partly in the affirmative,
2) Accordingly,
3) As per final order, for the following:-
REASONS
20. Issue No.1:- It is the case of the petitioner that due to the negligent act of parking of the Bolero Goods Vehicle by its driver in the middle of the road without taking any precautionary measures, the accident occurred.
21. On the contrary, the respondent No.2 has taken the contention that due to the sole negligent act on the part of the petitioner himself, the accident occurred.
22. To prove the above said rival contentions, the petitioner relied on his oral evidence and Police records.
23. Ex.P.1 is the FIR, Ex.P.2 is the Complaint, Ex.P.3 is the Spot Sketch, Ex.P.4 is the Spot Mahazar, Ex.P.5 is the IMV Report and Ex.P.7 is the Charge Sheet.
824. From going through the above said Police records, it is clear that the accident has occurred in between 20.10 hours and 20.15 hours on 05.10.2018. The complaint was lodged at 21.30 hours on 05.10.2018 itself. Within one and half hours from the time of the accident, the complaint is lodged by one Mallegowda S/o.Late Muddegowda. Therefore, it cannot be said that there is delay in lodging the complaint.
25. The complainant is an eyewitness to the accident, as he being an employee of NICE Company as FSO, was discharging his duty by doing patrolling work and after having noticed the accident, has lodged the complaint. In the complaint, it is alleged that there is negligent act of riding two wheeler on the part of the petitioner as well as parking of the Bolero Goods Vehicle without taking any precautionary measures.
26. On receipt of the complaint, case is registered and on 06.10.2018, Spot Panchanama was conducted. At the time of conducting Spot Panchanama, as per Ex.P.3, Rough Spot Sketch was prepared.
27. From Ex.P.5 IMV Report, it is clear that the Bolero Vehicle rear right crash guard behind the wheel was damaged and bent and rear right light assembly broken. With reference to the two wheeler, front mudgard dislocated, complete steering handle damaged and dislocated and head light dome and speedo meter cluster was damaged. Considering the damages 9 caused to both the vehciles, it is clear that impact is in between the front portion of the two wheeler and right rear portion of the Bolero Vehcile.
28. In this case, there is no dispute regarding the fact that due to the tyre burst, the Bolero Vehicle was stationed on NICE Road. From Ex.P.3 - Spot Sketch, it is clear that the NICE road runs in East-West direction at the place of accident. The 2 wheeler was proceeding from East to Wesst. The place of accident being on the NICE Road with two lanes, each lane is 30 feet wide. There is 20 feet wide median between these two lanes. In Ex.P.4 Spot Panchanama, scene of offence is described. Place of parking of Bolero Goods Vehicle is shown by letter 'A' in the Sketch, which is 10 feet away from Southern edge of the road and 20 feet away from Northern edge of the road. The impact place is 10 feet away from Southern edge of the road. It is not in dispute that the accident has occurred at 8.15 pm. During the course of cross-examination of RW 1, it is suggested to him that there is no steet light facility at the spot. The same is admitted by RW 1.
29. It is the specific case of the petitioner that the Bolero Vehicle was parked in the middle of the road without taking precautionary measures like putting board or something behind the Bolero Vehicle to signal the drivers of other vehicles moving on the road. The petitioner has not disputed Ex.P.3 and Ex.P.4. So also the repsondent No.1 and 2 have not dipsuted the contents of Ex.P.3 and P.4. Therefore, it is clear that the Bolero 10 Vehicle was parked within 10 feet from the Southern edge of the road. It is left side from East to West direction. It is also an admitted fact that 20 feet space is available towards northern side of the Bolero Vehicle to pass other vehicles.
30. Before considering the documentary evidence, consideration of oral evidence of the Investigating Officer is necessary. In his chief examination done by the advocate for respondent No.2, RW 1 has deposed that while he was working as a Police Inspector in Kumaraswamy Layout Traffic Police Station, he has investigated the Crime No.155/2018. Case is registered on the basis of the complaint lodged by one Mallegowda, S/o.Muddegouda on 05.10.2018. He himself has registered the case against the driver of the Bolero vehicle and rider of the Pulser Motorcycle. He has conducted the Spot Panchanama and shfited the dead body from the spot to KIMS Hospital and conducted Inquest Mahazar on the dead body in the hospital. On completion of investigation, he has filed the charge sheet.
31. He further deposed that as per the complaint averments and statement of witnesses, the Bolero Vehicle was stationed on the left side of the road due to tyre burst. Suggestion was made to RW 1 that even though the Bolero Vehicle had been stopped due to tyre burst, he has filed charge sheet against the driver of the Bolero Vehicle. For that RW 1 has answered that after stopping the vehicle in the highway, the driver of the vehicle was required to take precatuionary 11 measure. But he did not do so. Therefore, charge sheet is filed. After this answer, RW 1 was treated as hostile and the advocate for respondent No.2 was permtited to cross-examine RW 1.
32. During the course of cross-examination of RW 1, he has admitted the damages caused to both the vehicles referred above. He has stated that the width of the road is 30 feet. For the suggestion that there is sufficient place to move motorcycle towards right side of the motorcycle, witness answered that as it is NICE Road, two wheelers normally move on the left side of the road. He further stated that to avoid traffic jam, the Bolero Vehicle was taken by the side of the road. He has specifically denied the suggestion that after tyre burst, the Bolero Vehicle driver has taken precatuionary measures. He further denied that solely due to negligent act on the part of the rider of the motorcycle, ie., the petitoner, the accident occurred.
33. During the course of cross-examination done by the advocate for the petitioner, RW 1 has admitted that there is no street light facility at the scene of offence. He further admitted that if the Bolero Vehicle had been parked by putting blinking lights, this accident could have been avoided.
34. In the light of the above said evidence of the Investigating Officer, we are required to appreciate, as to who was negligent or whether there is contributory negligence on the part of both ie., driver of the Bolero vehicle and the rider of the motorcycle ie., petitioner, is to be seen.
1235. In this case, it is an admitted fact that the accident has occurred on NICE Road, having two lanes, separated by a median. Either rider or the driver of the vehicle need not take any precaution as from opposite direction, no vehilce will come, since separate lane is there for on coming vehicles. As it is NICE Road, speed is not the criteria to determine the negligent act in driving or riding the vehicle. From Ex.P.3 and P.4, it is proved that in 30 feet wide road, at the left side 10 Feet place, Bolero Vehicle was stopped. There is 20 feet wide space available for other vehicles to pass on. As the accident has occurred during dark hours, if sufficient precautinary measures had been taken by putting the indicator on or putting any board on the road by the driver of the Bolero Vehicle signalling other users of the road, then certainly the accident could have been avoided.
36. In the absence of street lights and no indication with reference to stopping of the vehicle, it cannot be said that only due to the negligent act on the part of the petitioner, the accident occurred. Further, RW 1 has stated that normally, two wheelers move on the left side of the road. From the oral evidence of PW 1 and RW 1, the petitioner is able to prove that without taking precautionary measures, the Bolero Vehicle was stopped on the road. The driver of the Bolero vehicle or owner of the Bolero Vehicle is not examined in this case. On the contrary, there is positive evidence of PW 1 who was riding the two wheeler as well as RW 1 - Investigating Officer. Non taking of precautiionary measures is a major negligent act on the part 13 of the driver of the Bolero Vehicle. As it is a one way road, if petitioner was little bit vigilant, he could have noticed parking of the vehicle from the head light of the two wheeler and he could have avoided the accident. It seems that the petitioner noticed the vehicle from a short distance, wherein it was impossible for him to control the speed of the vehicle or deviate the vehicle direction. Thereby, there is contributory negligence on the part of the rider of the two wheeler too. As it is a contributory negligence on the part of the driver of the Bolero vehicle and that of the rider of the two wheeler ie., the petitioner, considering the above said facts and circusmtances of the case, contributory negligence is assessed at 70:30 among the driver of the Bolero vehicle and the rider of the two wheeler ie., the petitioner.
37. It is the case of the petitioner that in the said accident, he sustained grievous injuries. To substantiate the same, he relied on Ex.P.6 - Wound Certificate, Ex.P.8 - 30 Bills, Ex.P.9 - 9 Prescription, Ex.P.11 - Case Sheet, Ex.P.12 - OPD Slip and the evidence of PW 2, the doctor, who has treated the petitioner.
38. From the above said medical records, it is clear that in the above said accident, the petitioner has sustained grievous injuries. Hence, Issue No.1 is answered partly in the affirmative, holding that due to contributory neglgience of driver of Bolero Vehicle and the rider of the two wheeler ie., the petitioner, the accident occurred. Hence, Issue No.1 is answered partly inthe affirmative.
1439. Issue No.2:- In this case, the petitioner has claimed a total compensation of Rs.8 lakhs on various heads.
40. To prove the injuries sustained by the petitioner in the accident, the petitioner relied on the above referred medical records. As per Ex.P.6 Wound Certificate, the petitioner has sustained in all 4 injuries, Sl.No.1 and 2 are described as grievous injuries and Sl.No.3 and 4 are described as simple in nature.
41. As per Ex.P.11 Discharge Summary, on clinication examination, the doctor noticed the following injuries:-
Left Knee:
A CLW over left knee of size 8x1cm Swelling present No Scar Tenderness present over left femoral lateral condyle Crepitus, abnormal mobility present ROM-Painful and restricted Dorsalis pedis artery and posterior tibila artery pulsation felt.
No distal NVD
42. As far as diagnosis is concerned, they found Left lateral condyle femur fracture and on 20.10.2018, the petitioner has underwent surgery.
1543. In Ex.P.11 itself, we can find the record of NIMHANS. As the petitioner has sustained head injury, he was referred to NIMHANS on 05.10.2018 itself. Thereafter, there was no further complications and no treatment was given to the petitioner with reference to the head injury. As per the Discharge Summary available in Ex.P.11, it is clear that the petitioner has taken tretment as an inpatient in Sanjay Gandhi Institute of Trauma and Orthopedics, Bengaluru from 07.10.2018 to 26.10.2018. As per Ex.P.8, Sl.No.1 is the Inpatient Bill, as per which, it is clear that the petitioner has taken treatment as an inpatient at Sri Sai Ram Hospital from 05.10.2018 to 06.10.2018. In all, for 22 days, the petitioner has taken treatment as an inpatient. Considering the nature of injuries sustained by the petitioner and that no further complications were there with reference to head injury and the period of treatment, the petitioner is awarded compensation of Rs.50,000/- under the head Pain and Suffering.
44. As I already stated above, the petitioner has taken treatment as an inpatient from 05.10.2018 till 26.10.2018, in two different hospital, in all for a period of 22 days. Therefore, the petitioner is awarded a compensation of Rs.22,000/- towards Food Nourishment, Attendant and Miscellaneous Expenses.
45. It is the case of the petitioner that he spent huge amount for his treatment. For that he relied on Ex.P.8 - Series of 30 Medical Bills. Sl.No.1 of Ex.P.8 is the Inpatient Bill issued by 16 Sri Sai Ram Hospital. Details of charges are mentioned in Sl.No.1 of Ex.P.8. To doubt the genuinity of Sl.No.1 of Ex.P.8, nothing is on record.
46. Bill at Sl.No.2 of Ex.P.8 is towards Ambulance Service, which cannot be included in the medical expenses. Sl.No.3 to 30 of Ex.P.8 are the bills towards purchase of medicines or other charges paid to laboratory for various investigations. That amount is not included in Sl.No.1 of Ex.P.8.
47. Learned advocate for the respondent No.2 during the course of his argument submitted that as per Final Bill available in Ex.P.11, an amount of Rs.15,750/- was claimed from Suvarna Arogya Suraksha Trust. From going through the said entry, it is clear that the petitioner has availed the said facility under the government scheme and that an amount of Rs.15,750/- was reimbursed to the hospital.
48. From going through 30 bills produced in Ex.P.8 series, it is clear that the petitioner has not included the amount mentioned in the Final Billing Yellow Sheet available in Ex.P.11. Sl.No.3 to 30 of Ex.P.8 are the medicine purchase bills or charges paid to hospital authority and laboratory. Therefore, under these bills, excluding Sl.No.2, the petitioner is entitled for compensation under the head medical expenes. Even though total comes to Rs.46,483/-, out of which, an amount of Rs.1,500/- is required to be deducted as mentioned in Sl.No.2 of Ex.P.8 and thus, by excluding Sl.No.2 of Ex.P.8 and by rounding off the figure, the petitioner is awarded Rs.45,000/- towards medical expenses.
1749. It is the case of the petitioner that he has sustained permanent disability in view of the injuries sustained in the accident. For that, the petitioner has relied on the evidence of PW 2. In the chief examination affidavit, PW 2 - Dr.Avinash Parthasarathi has stated that the petitioner has shstained fracture of lateral condyle of left femur and he underwent closed reduction and CC screws fixation to left femur on 20.10.2018. He was discharged on 26.10.2018. Thereafter, he has taken regular follow up treatment. Taking into consideration the mobility component and stability component, PW 2 has assessed the total disability of 44% towards right lower limb and whole body at 14%.
50. During the course of his cross-examination, PW 2 has admitted that the fractures are united. He further admitted that there is no restriction of hip and ankle movements. There is no amputation of any part of the body of the petitioner. He has not assessed the functional disbaility. It is suggested to him that prior to admission to the hospital of PW 2, the petitioner has taken treatment at NIMHANS. He has not verified the records of NIMHANS Hospital.
51. Considering the evidence of PW 2 and the fact that fracture is united and that there is no further complication, physical disability deposed by PW 1 during the course of his chief examination coupled with the evidence of PW 2, disability percentage is considered as 10% to whole body.
1852.From the driving licence of the petitioner produced at Ex.P.10, the date of birth of the petitioner is 16.12.1996. As on the date of accident, the petitioner was 23 years old.
53. It is the case of the petitioner that he was earning Rs.25,000/- per month by doing driving work. Except the oral evidence and production of driving licence at Ex.P.10, he has not produced any other evidence to show his actual income like bank statement, salary slips etc. In the absence of documentary evidence, the oral evidence of petitioner is not sufficient to hold that he was earning Rs.25,000/- per month and that he was driver by profession. Therefore, considering the year of accident, the petitioner's income is notionally assessed at Rs.12,000/- per month.
As I already stated above, the petitioner has 10% disbaility to whole body. 10% of his income ie., Rs.12,000/- comes to Rs.1,200/-. After multiplying it by 12, annually, it comes to Rs.14,400/-.
54. As I already stated above, as the age of the petitioner was 23 years at the time of accident, the multiplier applicable is
18. After multiplying annual loss of income of Rs.14,400/- by 18 multiplier, it comes to Rs.2,59,200/- and thus, the petitioner is awarded Rs.2,59,200/- towares loss of future income on account of disability.
1955. PW 2 has deposed that even after discharge, the petitioner has taken followup treatment. Therefore, the petitioner must have incurred some amount for conveyance. Hence, the petitioner is awarded Rs.2,000/- towares Conveyance Expenses.
56. The petitioner has taken treatment as an inpatient and thereafter, he was advised not to bear weight. Therefore, it is quite obvious that the petitioner may not have been in a position to discharge his work minimum for a period of 2 months. Therefore, a compensation of Rs.24,000/- is awarded to the petitioner towards loss of income during treatment period.
57. PW 2 in his chief examination has deposed that as the petitioner has been treated by internal fixation, he has to undergo one more surgery for removal of implant. The medical records produced in this case, substantiate the same. Therefore, the petitioner is awarded compensation of Rs.25,000/- towards future medical expenses.
58. The compensation to which the petitioner is entitled to is as under:-
Sl.No. Heads of Compensation Amount of
Compensation
1. Pain and Suffering 50,000.00
2. Food, Nourishment, Attendant 22,000.00
and Misc.Expenses
3. Medical Expenses 45,000.00
20
4. Loss of future income on acocunt 2,59,200.00
of disbaility
5. Conveyance Expenses 2,000.00
6. Loss of income during treatment 24,000.00
period
(Rs.12,000.00 X 2)
7. Future Medical Expenses 25,000.00
Total 4,27,200.00
The petitioner is awarded compensation of Rs.4,27,200/- with interest at 6% p.a.
59. Now the question is in view of finding on Issue No.1 partly in the affirmative, whether the petitioner is entitled to receive compensation or not, is to be seen.
60. The learned advocate for the respondent No.2 - Insurance Company vehemently argued that as the petitioner is one of the tortfeasors, he is not entitled to claim compensation for his own tortuous action. In support of his arguments, the learned advocate for respondent No.2 has relied on the judgment of the Apex Court reported in 2005 ACJ 1323 (National Insurance Company Limited Vs Premabai Patel and Others). In para No.6 of the said judgment, their Lordship have observed as under:-
"6...........But the claim petition before the Motor Accidents Claims Tribunal is an action in tort and the injured or the legal representatives of the deceased have to establish by preponderance of evidence that there was no 21 negligence on the part of the injured or deceased and they were not responsible for the accident...."
61. Relying on the said observation, the learned advocate for the respondent No.2 argued that the petitioner is required to prove that there is no negligent act on his part. Then only he is entitled for compensation.
62. The learned advocate for the respondent No.2 further relied on the judgment reported in 2014 AIR SCW 1081 (Lachoo Ram and others Vs Himachal Road Transport Corpn). In the said judgment, the Apex Court has held as under:-
"A..........Mere involvement of bus of respondent corporation in accident - Cannot make respondent liable to pay compensation unless it is shown that accident was caused by rash and negligent act of bus driver".
63. The learned advocate for the respondent No.2 further relied on the judgment reported in 2012 AIR SCW 2241 (Surinder Kumar Arora and another Vs Dr.Manoj Bisla and others). In the said judgment, the Apex Court has held as under:-
".......Onus to prove act of rash and negligent driving by driver of vehicle was on claimants - Failure to discharge, by adducing cogent evidence - Rejection of claim filed by claimants under S.166 - Was proper".22
64. There is no dispute with regerd to the principles laiddown in the above said judgments. To get compenstion, it is pre-requisite to prove the rash or negligent driving by the driver of the vehicle.
65. Now the question is whether the above said observation referred by the learned counsel for the resondent in the first judgment is a ground to deny the compenstion to tort feaser, is to be seen.
66. In this regard, direct point was considered by the Apex Court in Khenyel Vs New India Assurance Co., Ltd., and Others in Civil Appeal No.4244 of 2015 (arising out of SLP (C) No.14015/2010), decided on 7th May'2015. From going through the said judgment, in para 14, their Lordships distinguished the difference between contributory and composite negligence. For easy reference, the said para 14 is extracted below:-
"14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons".
In the said para, it is further held as under:-
23"It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence."
67. In the subsequent paragraph, their Lordships also extracted para 6 of judgment in T.O.Anthony Vs Karvarnan and others, reported in 2008(3) SCC 748, which reads as under:-
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding againsst all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. On the other hand, where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred toas his contributory 24 negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence."
68. In view of the above principle laiddown by their Lordships in the above case and in view of my finding on Issue No.1 that there is contributory neglience on the part of the petitioner to the extent of 30% in occurrance of accident, therefore, compensation awarded to the petitioner is required to be reduced in proportion to the petitioner's contributory negligence.
69. Total compensation determined in this case is Rs.4,27,200/-. 30% of the total compensation, ie., the contributory negligence of the petitioner, comes to Rs.1,28,160/- and therefore, the petitioner, after deduction of 30% towards his contributory negligence, out of the total compensation of Rs.4,27,200/- is entitled to a compensation of Rs.2,99,040/- with interest at 6% p.a. from the date of petition till realisation. The respondent No.1 and 2 being the Owner and Insurer of the Bolero Vehicle, are jontly and severally liable to pay compensation of Rs.2,99,040/- with interest at the rate of 6% p.a. from the date of petiton till relation and the respondent No.2 being the Insurer, shall indemnify the respondent No.1. Issue No.2 is answered accordingly.
70. Issue No.3:- In the result, I proceed to pass the following:-
25ORDER Petition filed by the petitioner is partly allowed against the respondent No.1 and 2.
The petitioner is entitled for a compensation of Rs.2,99,040/- (being 70% of total compensation of Rs.4,27,200/-) with interest at the rate of 6% per annum, on Rs.2,81,540/- only, from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Entire compensation amount together with accrued interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer, transcription thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 19th day of april'2022) (PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore ANNEXURE List of witnesses examined for petitioner PW 1 - Manjunath M., 26 PW 2 - Dr.Avinash Parthasarathy List of witnesses examined for respondents RW 1 - B.P.Nagaraj RW 2 - Sricharan S.Vashista List of documents marked for the petitioners Ex.P.1 - FIR Ex.P.2 - Complaint Ex.P.3 - Sketch Ex.P.4 - Spot Mahazar Ex.P.5 - IMV Report Ex.P.6 - Wound Certificate Ex.P.7 - Charge Sheet Ex.P.8 - 30 Bills Ex.P.9 - 8 Prescriptions Ex.P.10 - Copy of driving licence Ex.P.11 - Case Sheet Ex.P.12 - OPD Slip Ex.P.13 - Disability Assessment Proforma Ex.P.14 - Recent X ray.
List of documents marked for the respondents Nil (PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore 27 19.04.2022 Petitioner by PKN Respondent No.1 by DNB Respondent No.2 by KP For Judgment Judgment pronouned in Open Court vide separate Judgment.
ORDER Petition filed by the petitioner is partly allowed against the respondent No.1 and 2.
The petitioner is entitled for a compensation of Rs.2,99,040/- (being 70% of total compensation of Rs.4,27,200/-) with interest at the rate of 6% per annum, on Rs.2,81,540/- only, from the date of petition till realisation.
The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount with interest. However, the primary liability to pay the compensation amount is fixed on the respondent No.2 - Insurance Company and it is directed to pay the compensation amount within two months from the date of this order.
Entire compensation amount together with accrued interest is ordered to be released to the petitioner.
Advocate's fee is fixed at Rs.1,000/-.
Draw an award accordingly.
(PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & 28 Member, Prl. M.A.C.T. Bangalore