Karnataka High Court
Sri Nagaraj vs The Manager on 5 July, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A. No.117 OF 2016 [MV]
Between:
Sri Nagaraj,
S/o Late Anjanappa @ Thimmaiah,
Aged about 47 years,
R/at No.8 & 28, 4th Cross,
Maruthinagar Gangondanahalli,
80 ft.Road, Nagarbhavi,
Bangalore-72. ... Appellant
(By Smt. P.V. Kalpana, Advocate)
And:
1. The Manager,
M/s. Royal Sundaram Alliance
Ins. Co. Ltd,
1&2 floor, Sri Balaji Soverign,
No.132, Bridge Road,
Bengaluru-560 002.
2. Sri. Jayaramareddy,
S/o B S M Ganganna,
Major,
R/a N R Kondapura Village,
J.B. Halli Post, Molakalmuru Taluk,
Chitradurga District - 577 501. ...Respondents
(By Sri O. Mahesh, Advocate for R1;
Notice to R2 dispensed with vide order
dated 25/10/16)
2
This M.F.A. is filed under Section 173(1) of MV ACT
against the judgment and award dated 07.07.2015 passed in
MVC No.4066/2013 on the file of the 19th Additional SCJ and
MACT, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
This M.F.A. having been heard and reserved on
28.05.2018 and coming on for pronouncement of judgment,
this day, the Court delivered the following:
JUDGMENT
Aggrieved by the award of compensation by the Motor Vehicle Accident Claims Tribunal, Bangalore (SCCH-17) in MVC No.4066/2013, the present appeal is preferred seeking for enhancement of compensation as well as setting aside that portion of the award which held that the appellant was guilty of contributory negligence and hence, scaled down the compensation by 50% awarding `63,250/- (50% of `1,26,500/-).
2. Parties are referred to by their ranks before the Tribunal for the purpose of convenience.
3. The petitioner had filed a claim petition contending that on 6.4.2013 at about 2.00 p.m., the 3 petitioner's vehicle 'Tata Winger' Car bearing registration No.KA-02-AC-3169 was being driven by a driver on Kunigal-Bengaluru route and at Chamundi Dhaba 'U-turn', a lorry bearing registration number KA-16-B-1377 coming from Nelamangala side turned to the right without any fore warning by the driver of the lorry in a rash and negligent manner, which resulted in the petitioner car colliding with the lorry resulting in damage to the front bumper, radiator, windshield and bonnet of the car. An FIR was lodged and a charge sheet came to be filed holding that the driver of the lorry was guilty of driving the vehicle in a rash and negligent manner.
4. The respondent No.1 was the insurer of the lorry and the owner of the lorry was arrayed as respondent No.2 and it was pertinent to note that policy was in force during the relevant point of time. Claim was lodged seeking for an award for a sum of `1,50,000/- due 4 to the damage caused to the car. The claim being contested, respondent No.1 had denied the averments of the claim petition and contended that the compensation of `1,50,000/-, which was claimed was excessive and imaginary. Respondent No.2 has also filed the statement of objections controverting the petition averments.
5. On the basis of the pleadings, the Tribunal framed the following issues:-
"1. Whether the petitioner proves that on
06.04.2013 at about 2.00 p.m. the Driver of Tata Winger Car bearing No.KA-02-AC-3169 proceeding from Kunigal to Bangalore side. At that time a Lorry bearing No.KA-16-B-1377 came from the opposite direction with high speed in a rash and negligent manner dashed to the petitioner's car. As such the petitioners car sustained damages to the tune of Rs.1,07,485/-. Because of accident the petitioner sustained loss etc.,?.
2. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?"
5
6. The petitioner lead evidence by himself as PW-1 and through his driver Murali-PW-2, PW-3 mechanic of the workshop at Aravind Motors where the vehicle was repaired, and approved valuer as PW-4. The petitioner, apart from producing and marking First Information Report, charge sheet and Panchanama, had also produced the Motor Accident Vehicle Report (Ex.P.5) and bills with respect to repair of the car.
7. The Tribunal after considering the material on record, including documents produced and evidence of PWs.1 to 4 and the evidence of the respondent, though allowed the petition by awarding a compensation of `63,250/- with interest at 6% p.a. from the date of petition till its realization, it held that the petitioner was guilty of contributory negligence and hence, scaled down the compensation to 50%. The Tribunal has awarded damages with respect to the vehicle and has accepted the claim insofar as it relates to the repair of the vehicle, 6 which was proved through the evidence of PW1 (owner), PW2 (driver), PW3 (Mechanic - Aravind Motors) and PW4, who was the surveyor and had estimated the repairs for the damaged vehicle. As regards the claim of the petitioner with respect to the expenditure incurred for hiring an alternative vehicle for his business purpose, the said claim has been allowed partially by awarding a sum of `6,000/- per month for the period of two months during which the vehicle was under repair and not available for use by the petitioner. Though the petitioner had submitted traveling bills as per Ex.P7, totaling `42,742/-, the same has not been accepted, as the Tribunal held that there was no sufficient legal evidence adduced to consider the said relief and awarded `12,000/- only.
8. The said order of the Tribunal has been challenged on two counts:- (i) The finding that the petitioner was guilty of contributory negligence thereby 7 scaling down the claim to 50% of `1,26,500/- was illegal and (ii) Declining the claim for expenses incurred in engaging an alternative vehicle amounting to `42,742/- during the period of two months when the vehicle of the petitioner was under repair and awarding only `12,000/- at the rate of `6,000/- per month, was appropriate.
9. The learned counsel for the petitioner has vehemently argued that the Court has illegally refused the claim towards expenses incurred in engaging an alternative vehicle which was a consequential loss arising out of the damage to the vehicle. The bills produced as per Ex.P7 ought to have been accepted and an amount of `42,742/- in whole ought to have been allowed.
10. Insofar as the finding of the Tribunal that the petitioner was not entitled for the whole amount as he was guilty of contributory negligence was refuted by contending that the very fact of the lorry turning to the right without signalling or fore warning was by itself 8 sufficient to have pinned the liability on the owner of the lorry and further, the material available on record does not admit of any other inference as regards the manner of occurrence of accident.
11. It is further contended that charge sheet has been filed only against the driver of the lorry under Section 279 of IPC and if it were that the petitioner was also guilty of negligence in normal course the complaint would have been lodged against the petitioner also. Hence, it is argued that the contention of contributory negligence is an afterthought.
12. The petitioner would further contend that no issue has been framed as regards contributory negligence and in the absence of which, it was impermissible to have recorded a finding of contributory negligence and scaling down of compensation by 50%.9
13. It is to be noted that the allegation of contributory negligence does not find a mention in the pleadings of respondent No.1 and during the cross- examination of the witnesses, PW1 (owner) and PW2 (driver), a bald suggestion of the accident being caused due to negligence of PW2 has been made. The role and manner in which PW2 could have been responsible for contributory negligence being a question of fact, ought to have been pleaded specifically and evidence adduced. Both of which being absent, the question of Tribunal holding that the petitioner was also responsible thereby apportioning the negligence between the driver and deceased is liable to be set aside.
14. The Tribunal, while deciding the case and framing issues as mandated under Rules 245 and 246 of the Karnataka Motor Vehicle Rules, 1989, ought to encapsulate the claim of the claimant and the defence of the insurer in a précise manner so that the contentions 10 of the contesting parties are crystallized making it clear as to the nature of evidence that would have to be adduced by the respective parties to discharge the burden fastened on them. In the absence of proper framing of issues, the parties would not be put to sufficient notice as regards the burden that they need to discharge.
15. In the present case, non-framing of an issue to the effect that the claim of the petitioner would be downscaled as a result of contributory negligence of the petitioner vitiates a true and fair trial and has deprived the petitioner of putting forth his defence to the said allegation in an effective manner.
16. Even otherwise, it is to be noted that the petitioner's driver PW2 could not be blamed by contending that sufficient distance had to be maintained between the lorry in front of the petitioner's vehicle, which would have avoided the accident. The burden of 11 proving that the petitioner was guilty of contributory negligence lies upon the insurer which has not been discharged, as the insurer has not taken any steps during the trial to substantiate the said contention through oral or documentary evidence. There is no sketch regarding the spot where the accident took place which has been produced nor has there being effective cross-examination of PW2 by the insurer by appropriate suggestions to prove the case of contributory negligence. The observations of the Full Bench of this Court in the case of NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION v. SMT.VIJAYALAXMI AND OTHERS reported in ILR 2011 KAR 4845 at para-24 extracted hereinbelow indicates that heavy burden is cast on the person, who makes the plea.
"24. In the light of the aforesaid discussion, it is clear that before the Tribunal is called upon to decide the question of contributory negligence, the plea that is available to the driver and conductor of the bus/driver, conductor and 12 owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence..............."
From the material on record it cannot be said that the burden has been discharged by the claimant.
17. The Hon'ble Supreme Court while dealing with a similar issue in the case of YERRAMMA AND OTHERS Vs. G.KRISHNAMURTY AND ANOTHER reported in (2014) 4 ACJ 2161 has observed as follows:-
"9. After thorough consideration of the facts and legal evidence on the record in the present case, we are of the view that the collision between the motor vehicles occurred when the respondent Corporation bus was turning to its right side without showing the turn indicator to enter the bus depot. The driver of the offending vehicle of the respondent Corporation bus was negligent by not giving the right turn indicator and causing the accident. The driver of the respondent Corporation bus should have been aware of the fact that he was driving a heavy passenger motor vehicle, and that it was necessary for him to take extra care and caution of the other vehicles on the road while taking the turn to enter the depot. Had 13 the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted."
18. The said observation squarely applies to the case on hand and it would not lie in the mouth of the wrongdoer to contend that if the petitioner herein had taken due care and caution, the accident though occasioned by negligent act of the lorry driver could have been averted. 'But for' the negligent act of the lorry driver, the accident would not have occurred and expecting PW2 to have averted the accident in the present fact situation would amount to an extraordinary response, which is not warranted under normal driving circumstances. It has been held in SWADLING v. COOPER reported in (1931) A.C.1 at 9, Lord Hailsham observed:-
14
"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."
Hence, the claim of the contention of contributory negligence ought to fail.
19. As regards the contention of the insurer that the petitioner was entitled only to damage to property (vehicle herein) and not to any consequential loss will not be considered, as the insurer has not filed any appeal challenging the award of compensation to the petitioner for use of alternative vehicle during the period the petitioner's vehicle was under repair. At the same time, the claim of the petitioner that award of `12,000/- towards hiring of alternative vehicle is insufficient and the Tribunal ought to have awarded `42,742/-, cannot be 15 allowed, as the said claim is not backed by legally acceptable evidence.
In view of the above, appeal is dismissed with no costs.
SD/-
JUDGE RS*/VGR ct:am