Karnataka High Court
Santosh S/O Bhimarao Giram vs Bhagwat S/O Rohidas Langage on 9 April, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
MFA NO.201778/2015 (MV)
BETWEEN:
SANTOSH S/O. BHIMARAO GIRAM
AGE: 23 YEARS, OCC: PRIVATE SERVICE,
R/O. KAMAKSHI NAGAR, NORTH SOLAPUR,
NO2 R/AT SAKAF ROZA, VIJAYPUR - 586101.
... APPELLANT
(BY SRI BASAVARAJ R.MATH, ADVOCATE)
AND:
1. BHAGWAT S/O. ROHIDAS LANDAGE
AGE: 41 YEARS, OCC: BUSINESS,
R/O. H.NO.677/133, KEGAON, NORTH SOLAPUR,
MAHARASHTRA
(OWNER OF MOTORCYCLE BEARING NO.MH13/BL-
3997)
2. THE MANAGER LEGAL
ICICI LOMBARD GENERAL INSURANCE COMPANY
LTD.,
DIST. COURT ROAD,
GULBARGA - 585102.
... RESPONDENTS
(SRI SUBHASH MALLAPUR, ADVOCATE FOR R2;
N/R1 D/W V/O DATED:10.01.2017)
2
THIS MFA FILED UNDER SECTION 173 (1) OF MV
ACT PRAYING TO CALL FOR RECORDS AND MODIFY THE
IMPUGNED JUDGEMENT AND AWARD DATED : 26.08.2015
PASSED BY THE MACT NO.VII, VIJAYPUR, AT VIJAYPUR IN
MVC NO.297/2014.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claimant has filed the present appeal for enhancement against the judgment and award passed on 26.08.2015 made in MVC.No.297/2014 on the file of Member Accident Claims Tribunal No.VII, Vijayapura, awarding a total compensation of Rs.3,08,160/- with 6% interest per annum from the date of petition till realization.
2. It is the case of the claimant that, on 05.10.2013 at about 04.30 p.m. claimant along with his mother and kid of his sister, were going from Solapur to Tulajapur on Motorcycle bearing No.MH-13-AP-9243 in a slow and cautious manner, when they came near Suratgaon village, at that time motorcycle bearing 3 No.MH-13-BL-3907 came in a rash and negligent manner and dashed against the claimant's motorcycle. As a result in the accident the claimant, his mother and kid were fell down and sustained grievous injuries. The claimant sustained fracture of right thigh, cerebral oedema and diffuse axonal injury. Immediately, he shifted to Yashodhara Multi Specialty Hospital Solapur and incurred medical expenses of Rs.4,00,000/- and also future medical expenses of Rs.1,00,000/-. Prior to the accident claimant was aged about 22 years and working in a private sector and earning Rs.10,000/- per month. Therefor, he sought for allowing the claim petition as prayed for.
3. The respondent No.1 has filed written statement to the claim petition contending that accident had taken place due to rash and negligent riding of motorcycle No.MH-13-AP-9243 and not due to the negligent riding of motorcycle No.MH-13-BL-3997. 4 Respondent No.1 contended that, he is not liable to pay compensation. Therefore, sought for dismissal of the claim petition.
4. The respondent No.2 has filed written statement to the claim petition denying the averments made in the claim petition. The respondent No.2 contended that due to negligence on the part of claimant accident had taken place and there was negligence on the part of motorcycle No.MH-13-BL- 3997. There was contributory negligence on the part of the claimant, which resulted in the accident 95% of the contributory negligence has to be imposed upon the claimant. The claim made is exorbitant. Therefore, respondent No.2 sought for dismissal of the claim petition.
5. Based on the aforesaid rival pleadings, the Tribunal framed the following issues; 5
1. Whether the petitioner proves that, he has sustained bodily injuries in the road traffic accident on the alleged date, time and place due to the negligent riding of the rider of Motorcycle No.MH- 13-BL-3997?
2. Whether petitioner is entitled for the compensation? If so, what an extent and from whom he is entitled?
3. What order or award?
6. In order to establish the case of the claimant, the claimant examined himself as PW.1 and witness were examined as PW.2 and PW.3 and got marked the documents Ex.P.1 to 13. The respondent No.2-Insurance Company has examined its official as RW.1 and got market documents Ex.R.1 and 2.
7. The Tribunal considering both oral and documentary evidence on record, recorded a finding that claimant has proved that he has sustained bodily 6 injuries in the road traffic accident due to rash and negligent riding of rider of Motorcycle bearing Reg.No.MH-13-BL-3997 and claimant is entitled for compensation. Accordingly, the Tribunal by impugned judgment and award dated 26.08.2015 awarded compensation of Rs.5,13,600/- after deduction of 40% towards contributory negligence the claimant is entitled for Rs.3,08,160/- with 6% interest from the date of filing of petition till its realization. Hence, the present petition is filed for further enhancement.
8. The respondent No.2-Insurance Company has not filed any appeal against the judgment and award passed by the Tribunal.
9. I have heard the learned counsel for the parties to the lis.
10. Sri.Basavaraj.R.Math, learned counsel for the claimant/appellant contended that the impugned 7 judgment and award passed by the Tribunal granting only Rs.5,13,600/- by imposing 40% negligence on the part of the claimant is erroneous and contrary to the material on record. He would further contended that in view of accident occurred the claimant has sustained fracture of right thigh, cerebral oedema and diffuse axonal injury on account of rash and negligent riding of rider of motorcycle bearing Reg.No.MH-13-BL-3997. He further contended that though PW.1 stated on oath that, he was working in a private sector and earning Rs.10,000/- per month, but Tribunal has taken only Rs.6,000/- per month without any basis. He would further contend that Ex.P.1 and 8 FIR and Charge Sheet clearly indicates that negligence on the part of the rider of motorcycle bearing Reg.No.MH-13-BL-3997. Therefore, the Tribunal was not justified in imposing 40% negligence on the part of the claimant. He would further contend that Ex.P.3 spot panchanma sketch clearly indicates that negligence on the part of the rider 8 of motorcycle bearing Reg.No.MH-13-BL-3997. He would further contend that compensation awarded in respect of the other heads is on lower side. He would further contend that, the claimant has produced medical bills worth of Rs.5,54,999/-. But Tribunal has given only Rs.3,10,000/- towards medical expenses. There is no any reasonable ground for disallowing the remaining medical bills. Therefore, he sought for enhancement of compensation by modifying the impugned judgment and award passed by the Tribunal and also sought for set-aside the 40% negligence fixed by the Tribunal.
11. Per contra Sri.Subhash.Mallapur, learned counsel for the respondent No.2-Insurance Company sought to justify the impugned judgment and award passed by the Tribunal by fixing the negligence 60% and 40%. He further contended that in the absence of any material documents produced by the claimant that he 9 was working in a private sector and earning Rs.10,000/- per month, the Tribunal has justified in taking the income of the claimant at Rs.6,000/- per month. Therefore, claimant is not entitled any further enhancement. Therefore, he sought for dismissal of the appeal.
12. Having heard to the learned counsel for the parties to the lis, it is undisputed fact that the claimant has sustained fracture of right thigh, cerebral oedema and difuse axonal injury, on account of rash and negligent riding of the rider of motorcycle bearing Reg.No.MH-13-BL-3997. The same is evident from evidence of PW.1 and documents Ex.P.1 to 13. The adverse findings recorded by the Tribunal against the rider of motorcycle bearing Reg.No.MH-13-BL-3997 is not at all challenged by the respondent No.2-Insurance Company. It is also not in dispute that the respondent No.2-Insurance Company has not at all challenged the 10 fixing the negligence at 60% on the Insurance Company and 40% on the claimant. The facts remain that the claimant has filed present appeal not only for further enhancement, but also challenged the fixing the contributory negligence at 40% on the claimant without any basis.
13. The claimant/PW.1 stated on that, he was working in a private sector and earning Rs.10,000/- per month. The accident occurred on 05.10.2013. The claimant prior to the accident was aged about 22 years. The Tribunal has considered the income of the claimant at Rs.6,000/- per month ignoring both the oral evidence of PW.1 and documentary evidence, which clearly depicts that the claimant was working in a private sector and earning Rs.10,000/- per month. Therefore, the Tribunal ought to have taken the income of the claimant at least Rs.7,000/- per month. 11
14. It is also not in dispute that Ex.P.10 set of medical bills produced by the claimant clearly depicts that he has incurred sum of Rs.5,54,999/- towards medical expenses. The Tribunal has awarded compensation towards medical expenses is at Rs.3,10,000/-. Taking into consideration that claimant was inpatient for the period of 14 days, without there being any reasons to disallowing the Ex.P.10 medical bills. Therefore, Ex.P.10 medical bills cannot be ignored. Unfortunately, the Tribunal has ignored the material document. It is also not in dispute that the Tribunal had recorded a categorical finding that as per Ex.P.8 (a) charge sheet translated version clearly depicts that due to rash and negligent riding of rider of motorcycle bearing Reg.No.MH-13-BL-3997 which is resulted in accident.
15. Unfortunately the Tribunal has proceeded to fix the contributory negligence at 40% on the part of 12 claimant only on the ground that, accident which occurred is a straight road. The two motorcycles in broad daylight dashed against each other, which resulted in the accident. At the same time, the claimant was travelling in the said motorcycle along with his mother and young kid sister. The offending motorcycle was also carrying three persons, so from the perusal of the above coupled with the spot sketch annexed with the spot panchanama and it is clear that accident had occurred because of the negligence of the both the riders. Therefore, apportionment of negligence, which resulted in the accident be apportioned be 40% on the claimant and 60% on the offending vehicle.
16. The Tribunal has failed to notice that in view of the provisions Section 128 of M.V. Act the claimant, mother were going along with young kid of his sister cannot be considered as three persons as contemplated under Section 128 of M.V. Act. Therefore, only two 13 persons going and they have not violated any of the conditions or violated traffic rules. It is also not in dispute that complaint filed by complainant clearly depicts that, they were going Tulajapur from Solapur for darshan of Temple, at that time accident occurred. The jurisdictional police have also registered the case against the rider of motorcycle bearing Reg.No.MH-13- BL-3997. The police after holding investigation filed charge sheet against the rider of said motorcycle. The sketch spot panchanama Ex.P.3 clearly depicts that the accident occurred on account of rash and negligent riding of the rider of motorcycle bearing Reg.No.MH-13- BL-3997. It also reveals that accident occurred due to negligence on the part of the rider of motorcycle bearing Reg.No.MH-13-BL-3997 and not due to negligence on the part of claimant. Therefore, taking into consideration of both oral and documentary evidence on record, the Tribunal has committed an error in fixing 14 the contributory negligence at 40% on the claimant, is erroneous and contrary to the material on record.
17. This Court while considering the provisions of Sections 168 and 147 in the case of Divisional Controller, K.S.R.T.C. Urban Division, Bannimatnap, Mysore /vs/ Mahadevamma and others, reported in 2011 (4) AIR KAR.R.91, at Para No.5 held that;
"Perusal of the sketch and the evidence shows that the bus has moved on its right side, undoubtedly, the deceased were on the left side, the bus had a space on its left side, despite that, it has moved on the right side and caused an accident. Even if there is space, the bus driver had taken little care, he would have avoided the accident. May be, three persons going on motor bike, is violation of the permit or it may be an offence, however, they are third parties, the claimants cannot be denied of compensation. Merely because the deceased were three in number, it cannot be said that 15 they were negligent. They might have violated the law, but negligence is concerned, the evidence shows that the driver of the bus was negligent in driving the bus. In my opinion, the finding given by the Tribunal as regard to the negligence is concerned, it is based on proper appreciation of the evidence".
18. The Division Bench of this Court in the case of Divisional Manager, National Insurance Company Limited /vs/ Smt.Sunanda and others reported in 2011 Kant. M.A.C.116 (Kant) at Para No.12 and 13 held as under;
Para No.12: The learned counsel for the appellant pointed out that Section 128 of the Motor Vehicles Act mandates that only two persons can be on the motorcycle. Admittedly in this case, apart from the driver, there were two pillion riders. Therefore, there is violation of statutory provision. A Division Bench of this Court in the case of Sri.P.S.Somaiah and another v. The Director, Bangalore Dairy and others, reported in 2003 (3) KCCR 1997 has 16 held that non-compliance of safety measurers for driver and pillion riders and traffic rules amount to negligence and reckless operations and the drivers of two wheelers are liable for contributory negligence up to 60%. A learned single Judge of the Andhra Pradesh High Court in the case of United India Insurance Company Ltd., v. Anjaiah and others, reported in AIR 2004 NOC 339 (AP) has held that when there was triple riding on scooter which is prohibited, even in the absence of independent evidence adduced by insurer that accident had occurred due to triple riding, it could be reasonably presumed that rider of scooter was discomforted by allowing two pillion riders and thus contributed in causing accident. Culpability in causing accident is therefore, fixed at 75% on the lorry driver and 25% on the scooterist in the said case.
Para No.13: We have gone through the aforesaid two judgments. They are in the nature of observations. The aforesaid observations were made in the context and in the facts of that particular case and no law as 17 such is laid down. If the violation of a statutory rule has resulted in the accident, certainly we can hold the person who violated the rule as also having contributed to the accident. But mere violation of a statutory provision cannot lead to an inference that the accident was on account of the negligence. Something more is to be done. Evidence has to be adduced in a particular case that the violation of a statutory rule resulted in negligence which in turn resulted in the accident, then proportionate contributory negligence could be attributed to the persons who violated the statutory provisions. Ultimately it depends on the facts of each case. In the instant case, no doubt apart from the driver of the motorcycle, there were two pillion riders. It is in violation of Section 128. But there is nothing on record to suggest that just because three persons were on the motorcycle, that was a cause for the accident to any extent whatsoever. In the absence of any such evidence, mere contravention of a statutory provision cannot be held to have resulted in the accident. Therefore, on that 18 score alone negligence cannot be attributed to the violator of the law. It is not possible to hold that merely because there were three persons in the vehicle, that by itself is negligent act so as to foist the liability on the violators of the law. In that view of the matter, we do not find any substance in this contention.
19. In view of the aforesaid reasons the impugned judgment and award passed by the Tribunal fixing the contributory negligence at 40% on the claimant is erroneous and contrary to the material on record.
20. In view of the aforesaid provisions of Sections 168 and 147 and law declared by this Court as stated supra, the Insurance Company is liable to pay entire compensation to the claimant and there cannot be contributory negligence on the part of the claimant.
21. It is also not in dispute that PW.2- Dr.Shantappa Nagathan-Sr. Orthopedic Surgeon, stated 19 on oath that claimant has suffering 30% to 35% disability to the right lower limb. The Tribunal failed to notice that PW.3 - General Surgeon stated on oath that on examination of the claimant, aged about 22 years, he looks dull and is irritable and his I.Q. is 80 - 90 (mild) and there is 25% disability of neurological. The same has not been considered by the Tribunal. The Tribunal only on the basis of evidence PW.2 assessed the disability of the claimant at 10%. Taking into consideration the evidence of PWs.2 and 3, the reasonable percentage of disability would be 14% in the interest of justice and equity. Thus, the compensation towards loss of future income comes to Rs.2,11,680/- (7,000x12x18x14%).
22. It is also relevant to state at this stage that the assistance rendered by Sri Vinayak Apte, learned counsel by translating the Marathi language into English language as per Ex.P3 - Panchanama is appreciated. The said translation made by Sri Vinayak 20 Apte, learned counsel is not disputed by learned counsel for the parties.
23. After re-assessing both oral and documentary evidence on record, the claimant/appellant is entitled to just compensation as under:-
Loss of future earning Rs.2,11,680/-
Pain and suffering Rs. 35,000/-
Loss of amenities Rs. 30,000/-
Attendant charges Rs. 15,000/-
Loss of income during laid up
period Rs. 21,000/-
Medical expenses
(Rs.3,10,000/- already granted
by Tribunal + Rs.2,44,999/-
remaining medical bill as
claimed by claimant) Rs.5,54,999/-
______________
Total Rs.8,67,679/-
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Thus, the claimant is entitled to total
compensation of Rs.8,67,679/- as against
Rs.3,08,160/- awarded by the Tribunal. The enhanced amount would be Rs.5,59,519/-.
24. In view of the aforesaid reasons, the appeal is allowed in part. The judgment and award dated 26th August, 2015 made in MVC No.297/2014 on the file of the MACT No.VII, Vijaypur is modified holding that the appellant/claimant is entitled to enhanced compensation of Rs.5,59,519/- with interest at 6% per annum from the date of petition till its realization.
Ordered accordingly.
Sd/-
JUDGE KJJ/Srt Ct: VK