Karnataka High Court
Karthikeyan K A vs M/S Reliance General Insurance Co Ltd on 28 June, 2023
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NC: 2023:KHC:22407
MFA No. 2408 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 2408 OF 2017 (MV-I)
BETWEEN:
KARTHIKEYAN K A,
S/O ANNAMALAI,
AGED ABOUT 32 YEARS,
R/A # 16, NEAR FABIE CREAT,
VIJAYA BANK COLONY,
BILEKEHALLI,
BENGALURU - 560 076
...APPELLANT
(BY SRI K V SHYAMAPRASADA, ADVOCATE)
AND:
1. M/S RELIANCE GENERAL INSURANCE CO. LTD.,
NO.28, 5TH FLOOR,
CENTENARY BUILDING, M G ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGER.
Digitally signed
by T S 2. M/S SATHYA SAI TOURIST,
NAGARATHNA
R/BY ITS MANAGER,
Location: High
Court of S S T CHAMBERS NO.151/17/1, 36TH CROSS,
Karnataka
9TH MAIN, 5TH BLOCK,
JAYANAGAR,
BENGALURU - 560 041.
...RESPONDENTS
(BY SRI ASHOK N PATIL, ADVOCATE FOR R1;
NOTICE TO R2 IS D/W V/O DATED 05/04/2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.01.2017 PASSED IN MVC
NO.5240/2013 ON THE FILE OF THE XXI ADDL.C.M.M. AND MEMBER
MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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NC: 2023:KHC:22407
MFA No. 2408 of 2017
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for respondent No.1-Insurance Company.
2. Being aggrieved by the judgment and award in MVC.No.5240/2013 by the learned XXI Additional C.M.M. and Member, MACT, Bengaluru (SCCH-25) dated 04.01.2017, the petitioner is before this Court in appeal.
3. The petitioner being a pedestrian was crossing Hosur Road, near PES College, Konappana Agrahara, on 13.07.2013 at 07.30 p.m., and the tempo driver bearing registration No.KA-05-AA-6164 came in a rash and negligent manner and dashed against the petitioner, resulting in the petitioner falling down and sustaining injuries. It was contended that the petitioner was taken to Live 100 Hospital and later shifted to Blossom Multi Specialty Hospital, wherein, he took treatment from 13.07.2013 to 21.07.2013. It was diagnosed that he had suffered lacerated wound on the left partial region 8 X 6 cm, left temporal 4 X 6 cm, right parietal 8 X 6 cm with black eye. The petitioner contended that it has resulted in -3- NC: 2023:KHC:22407 MFA No. 2408 of 2017 financial loss to him and the respondent Nos.1 and 2 being the insurer and owner of the vehicle are liable to pay the compensation.
4. In response to the notice issued by the Tribunal, respondent No.1-Insurance company appeared through its counsel and the owner remained ex-parte.
5. The respondent No.1-Insurance Company contended that there were violation of terms and conditions of the policy and that the accident was not due to the negligence of the driver of the tempo traveler but it was on account of negligence of the petitioner himself who had tried to cross the road by jumping over the road median. The respondent No.1- Insurance Company also contended that the compensation claimed is highly exorbitant, imaginary and untenable in law.
6. The Tribunal framed appropriate issues and the petitioner was examined as PW.1. Exs.P1 to P13 were marked. The record keeper of the hospital was examined as PW.2. Respondent No.1 did not adduce any evidence. -4-
NC: 2023:KHC:22407 MFA No. 2408 of 2017
7. After hearing both the parties, the Tribunal came to the conclusion that there was also contributory negligence on the part of the petitioner as he had tried to cross the road where there was no such zebra crossing and by placing the reliance on the decision in the case of KOOSAPPA POOJARI VS. K.SADABBA AND OTHERS1, fastened 50% contributory negligence on the petitioner and awarded a compensation of Rs.69,750/- to the petitioner.
8. Being aggrieved by the said judgment and award, the petitioner is before this Court in appeal.
9. On issuance of notice, the respondent No.1- Insurance Company has appeared through its counsel and the notice to respondent No.2 was dispensed with.
10. Learned counsel appearing for the appellant submit that the Tribunal erred in fastening 50% of the negligence on the petitioner, when there was no evidence to show that there was any zebra crossing nearby of the spot of the accident and the petitioner had avoided such zebra crossing while crossing 1 ILR 2003 KAR 1104 -5- NC: 2023:KHC:22407 MFA No. 2408 of 2017 the road. He submits that the petitioner was on the service road but not on the highway and the said service road was permitted to be used by the vehicles in both the directions and therefore, the driver of the tempo traveler had driven the said vehicle negligently without any regard to the pedestrian and as such, the contributory negligence fastened upon the appellant was not justifiable. Apart from that he also contends that the compensation awarded by the Tribunal is low and meager and the same needs to be enhanced.
11. Per contra, learned counsel for respondent No.1- Insurance Company submits that the Tribunal has considered the evidence on record in appropriate manner and the contributory negligence is clearly decipherable from the Police papers produced before the Tribunal. Therefore, he has defended the judgment and award passed by the Tribunal.
12. Perusal of the police papers, particularly Exs.P2 and P3 show that the accident had occurred on the service road to the highway. It is evident that the spot mahazar coupled with the sketch show that there was a service road on both the sides of the 6 lane National Highway and the accident occurred at a -6- NC: 2023:KHC:22407 MFA No. 2408 of 2017 distance of 3 feet from the cement slabs which was laid adjoining the National Highway. Admittedly, the accident is on the service road but not on the main highway. The cross- examination of PW.1 discloses that a suggestion was made to the PW.1 that if he had used zebra crossing, the accident could have been averted, he admits that there is no such zebra crossing.
13. From perusal of the Police papers and cross- examination of PW.1, it is evident that there was no such zebra crossing in the vicinity of the accident. It is not the contention of the respondent No.1/Insurance Company that the petitioner had avoided a zebra crossing even though it was in the vicinity and therefore, there was an utter negligence on the part of the petitioner. However, there is absolutely no material on record to show that there was a zebra crossing in the vicinity.
14. Though the respondent No.1 has contended that the petitioner had jumped the median, evidently, there was no such median, as it was a service road. There were cement slabs bifurcating the main highway and service road and the accident occurred at a distance of 3 feet from the cement slab. -7-
NC: 2023:KHC:22407 MFA No. 2408 of 2017
15. This would show that the driver of the tempo traveler should have driven the vehicle in a careful manner as it is a bi-directional service road. Any driver driving on the service road has to be cautious and when the service road is meant for the pedestrian and other slow moving vehicles. Under these circumstances, though it could be said that there was also negligence on the part of the pedestrian who was crossing the service road of a highway, such negligence cannot be grave enough to hold that it was to the extent of 50%. A decision in the case of KOOSAPPA POOJARI (Supra) holds that when a person was crossing the national highway, the pedestrian who suffered the accident had contributed to the accident of 25%. In a case on hand, the Tribunal has fixed the contributory negligence on the petitioner at 50%. Therefore, it is evident that there was no application of mind so far as fastening the contributory negligence to the extent of 50% when the accident had occurred on the service road, but not on the main highway. There is no material on record to show that the petitioner was trying to cross the main highway at the time of the accident. Under these circumstances, in the considered opinion of this -8- NC: 2023:KHC:22407 MFA No. 2408 of 2017 Court, the contributory negligence on the part of the petitioner has to be held at 15%.
16. The Tribunal has awarded a sum of Rs.40,000/- under the head of 'pain and suffering', a sum of Rs.20,000/- towards conveyance, nourishment, attendant charges etc., a sum of Rs.79,484/- towards 'medical expenses'. Since there was no evidence regarding the disability, 'loss of future earning capacity' was not awarded. The reason for not awarding any compensation under the head of 'loss of income during the laid up period' is not stated by the Tribunal. It is also worth to note that the 'loss of amenities' is also not awarded by the Tribunal.
17. The petitioner was inpatient for a period of 09 days and obviously it was for the laceration on the parietal and temporal region and for not ruling out any other complications in the future. Under these circumstances, the petitioner is not entitled for the compensation under head of 'loss of amenities' but however, the compensation in respect of the 'loss of income during the laid up period' could not have been denied by the Tribunal. Hence, considering the fact that the petitioner is aged 28 years and was a welder, he is entitled for a sum of -9- NC: 2023:KHC:22407 MFA No. 2408 of 2017 Rs.16,000/- under the head of 'loss of income during laid up period.
18. Thus, the petitioner is entitled for the modified compensation under different heads as below:
AMOUNT PARTICULARS (IN RS.) Pain and suffering 40,000/-
Medical Bills 79,484/-
Nourishment and attendant
20,000/-
charges
Loss of income during laid up
16,000/-
period
TOTAL 1,55,484/-
Less 15% towards 23,323/-
Contributory Negligence ___________
Total 1,32,161/-
Less Awarded by the Tribunal 69,750/-
___________
Enhancement 62,411/-
19. Thus, the petitioner is entitled for enhanced
compensation of Rs.62,411/- (Rs.1,32,161/- - Rs.69,750/-) after deducting 15% towards contributory negligence with interest and therefore, the appeal deserves to be allowed in part. Hence, the following:
ORDER
(i) The appeal is allowed in part.
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NC: 2023:KHC:22407 MFA No. 2408 of 2017
(ii) The impugned judgment and award passed by the Tribunal is modified by fixing contributory negligence on the part of the petitioner at 15% and by awarding a sum of Rs.62,411/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit.
(iii) The respondent No.1/Insurance company is directed to deposit the entire compensation amount within a period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands unaltered.
Sd/-
JUDGE NR/-
List No.: 1 Sl No.: 100