Karnataka High Court
H R Murgesh vs M/S Oriental Insurance Co. Ltd. on 29 June, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A.No.8120/2013 (MV)
Between:
H.R.Murgesh
S/o Thipperudrappa @ Durgappa,
Aged about 48 years,
R/o Hullur Village,
Chitradurga - 577 501. ... Appellant
(By Sri Spoorthy Hegde Nagaraja, Advocate)
And:
1. M/s. Oriental Insurance
Co. Ltd.,
The Branch Manager,
Sharda Complex,
Chitradurga - 577 501.
2. K.Mahabhadrappa
S/o Veerabhadrappa,
Owner of Sri Mallikarjuna Bus
No.KA-16/A-9927,
R/o Gandhinagar,
Challakere - 577 522. ... Respondents
(By Sri. R.Gunashekar, Advocate for R-1;
Notice to R-2 dispensed with)
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This M.F.A is filed under Section 173(1) of MV Act,
against the judgment and award dated 23.07.2013 passed in
MVC.No.524/2012 on the file of the Senior Civil Judge &
CJM, Additional MACT-4, Chitradurga, partly allowing the
claim petition for compensation and seeking enhancement of
compensation.
This M.F.A coming on for admission this day, the court
delivered the following:
JUDGMENT
This appeal has been filed by the claimant assailing the order in MVC.No.524/2012 contending that the finding of the Tribunal that 50% of the negligence could be attributed to the claimant, was illegal and that there has to be an enhancement of compensation awarded by the Tribunal.
2. The parties are referred to as per their ranking before the Tribunal for the purpose of convenience.
3. The case of the claimant is that on 23.6.2011 while he was riding the motor cycle bearing registration No.KA-16/U-3496 proceeding in front of Erajjanahatti Gate on NH-13, Holalkere Road of Chitradurga, a bus 3 bearing Registration No.KA-16/A-9927 being driven in a rash and negligent manner by its driver coming from Chitradurga side dashed the petitioner's bike at the hind portion. As a result of the said accident, the petitioner states that he suffered grievous injuries and that he had spent considerable amount on medical treatment and accordingly, has filed the claim petition before the Tribunal.
4. The petitioner has led evidence of himself as PW.1 and also led evidence of Dr.Dinesh as PW.2 and got marked documents including the police records, charge sheet, vehicle seizure mahazar, IMV report and other documents. The medical documents that were produced to substantiate the case as regards nature of wound and disability include wound certificate and treatment certificate issued by various hospitals, discharge cards, medical bills, physical disability certificate evaluation report.
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5. The Tribunal after considering the material and documents on record, has awarded compensation of Rs.2,10,400/- under the heads more fully specified at para (e) at page 9 of the judgment. However, while holding that the petitioner had contributed 50% of negligence to the accident, the compensation accordingly, was scaled down. It is this order that has been challenged in appeal.
6. It is contended that as regards the finding on contributory negligence, the Tribunal has grossly erred in coming to the conclusion that the petitioner has contributed to the extent of 50% as regards the accident as it has merely relied upon the possession of learning licence by the petitioner and that the motor cycle was being ridden by him without any pillion rider who possessed a permanent licence. It is further contended that by relying on the judgments of the Apex Court in the case of Dinesh Kumar J Vs. National Insurance 5 Company Limited and others reported (2018) 1 SCC 750, that it should not be sufficient for mere absence of licence but it had to be further proved that absence of licence had contributed to the negligence. The said observation was made by the Apex Court while referring to the observations made in the case of Sudhir Kumar Rana Vs. Surinder Singh reported in (2008) 12 SCC 436. Reliance is placed on the judgment in the case of North East Karnataka Road Transport Corporation Vs. Smt.Vijayalakshmi reported in ILR 2011 KAR 4845 and by relying on para 24 it is sought to be contended that the clear mandate of the Full Bench of this Court in the above mentioned judgment is to the effect that there is to be a specific plea of contributory negligence and in support of the same, evidence must be adduced and it is on the basis of such plea and evidence that the Court has to appreciate the material on record and then come to a definite conclusion, that the said action of negligence had contributed to the accident and loss. 6 The Court has further observed that only if such a finding is recorded, the question of contributory negligence could be attributed and the question of scaling down the compensation be considered. Hence, it is contended that as regards the question of quantum of negligence, the finding of the Tribunal is erroneous and calls for interference.
7. The insurer on the other hand, has contended that the pleading as regards contributory negligence is found in the statement of objections filed before the Tribunal and at para 4 of the statement of objections, it has been specifically averred that the petitioner himself was the root cause for the said accident as he had driven the motor cycle without having proper valid driving licence. It is also pointed out that in the cross examination of the petitioner a specific suggestion has been made that the bike was being driven without display of learning licence board and that the petitioner 7 on hearing the horn of the bus coming from behind, due to his apprehension could not control the vehicle and because of his riding of the motor cycle in an unstable manner, the accident has occurred. Hence, the insurer contends that though no independent evidence has been led in, suggestions and cross examination made is sufficient for the Tribunal to have found positively on the question of negligence of the claimant and the finding of the Tribunal as regards the compensation requires no interference.
8. On perusal of the documents and evidence as regards possession of driving licence, it is to be noted that admittedly the petitioner was possessing the learning licence. The said learning licence is marked as Ex.P.72. However, the question still remains as to, "Whether mere possession of learning licence by itself could be used to attribute negligence or something more 8 is required to demonstrate that the said fact has contributed to the occurance of the accident.
9. The point as regards quantum of negligence to be dconsidered is as follows:
"Whether in the facts and circumstances of the case, possession of learning licence has contributed to the accident and hence the finding of the Tribunal on the question of contributory negligence deserves".
10. The evidence that has been led in by the petitioner and his cross examination by the insurer, there is a suggestion to the effect that the petitioner became unstable on hearing of the horn of the bus which was coming behind him which way a contributory aspect for the occurance of the said accident. However, apart from the said suggestion, there is no evidence led in by the insurer nor are there any other documents produced including any sketch, to have demonstrated 9 that there is contributory negligence on the part of the rider of the motor cycle. The Tribunal while considering the aspect of contributory negligence at para 9 at issue No.1 at page 6 has come to the conclusion that the accident is also caused by the negligence of the petitioner as he had not followed the mandatory conditions as regards the stipulations of a learning licence and that by his unstable driving, he has contributed for the occurrence of the accident. On a perusal of the judgments referred to above including that of the High Court, it is a clear mandate that there has to be a pleading as regards contributory negligence, there has to be positive evidence let in to substantiate the allegation of contributory negligence and the Tribunal ought to record a finding that due to the act alleged there was contributory negligence and that there could be scaling down of the compensation. 10
11. The Apex Court in the case of Dinesh Kumar, has also opined that mere absence of licence could not be a factor ipso facto attributing to contributory negligence and it has to be further proved that this act of not possessing valid driving licence had contributed to the accident. This observation has been made in the light of the observations made in the case of Sudhir Kumar Rana referred to above.
12. In the present case, the finding of the Tribunal on appreciation of the evidence that the claimant had contributed to an extent of 50% as a result of his negligence to the occurrence of the accident appears to be wanting as regards to the extent of contributory negligence attributed. The appreciation of the evidence by the Tribunal is more on the basis of non possessing of a valid driving licence and non possessing of a learning licence ipso facto is said to have contributed to the accident. The contribution to the accident by the 11 petitioner is however established in a small measure, and the same cannot be brushed aside. In so far as the specific finding that there was no stable riding of the motor cycle by the petitioner on hearing the horn of the bus from behind, that the petitioner was riding the motor cycle on the National Highway, the absence of due care and caution on the part of the petitioner and the petitioner possessing a learning licence can be said contributed to the occurrence of the accident, though not to the extent that 50% negligence could be attributed to the petitioner.
13. While considering the nature of the records and also the fact that the petitioner merely possessing a learning licence was riding motor cycle on the National Highway, this Court is of the opinion that the petitioner has indeed contributed his part of negligence to the accident. The same could be taken at 10%. The finding of the Tribunal in attributing 50% of the negligence is 12 however not founded on reasons and is liable to be modified.
14. As regards the grounds urged for enhancement of the compensation, it is contended by the claimant that the compensation awarded on the head 'pain and sufferings' at Rs.25,000/- is grossly inadequate, considering the fact that there was fracture of two major bones and that he was admitted to the hospital for treatment from 25.06.2011 to 06.07.2011, 26.07.2011 to 28.07.2011 and once again on 06.08.2011. It is contended by the claimant that the Tribunal taking the income of the claimant at Rs.4,000/- per month was on the lower side insofar as the accident is of the year 2011. The Lok-Adalath guidelines itself takes the income between Rs.5500/- to Rs. 6500/- and it is contended that taking judicial note of the Lok Adalath guidelines, the amount of monthly 13 income ought to be taken at Rs.6,500/- and the compensation to be calculated accordingly.
15. For the purpose of assessment of loss due to permanent disability, it is contended that as there are certain scars even till date, on the ground of loss of amenities, compensation has not been provided for. Lastly, it is contended that for the laid up period, no compensation has been awarded.
16. Learned counsel for the insurer, however, contests the claim and states that as regards loss of amenities, no compensation need to be paid as there is no positive evidence of any scars as stated by the claimant. It is contended that insofar as the disability pointed out by the Doctor and adopted by the Tribunal, there are no grounds to interfere and that in the absence of positive evidence, the Tribunal taking the monthly income of the claimant at Rs.4,000/- cannot be faulted with.
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17. After having heard the learned counsel on both sides, the compensation would stand restructured as follows:-
(a) As regards the income taken at Rs.4,000/ per month the same is apparently on the lower side. The claimant being an agriculturist, as is evident from RTCs at Exs.P.61 and P.62, taking judicial note of the Lok Adalath guidelines and considering that the accident is of the year 2011, income per month could be taken at Rs.6,500/-. Hence, the calculation on the head 'loss of income due to permanent disability' would be re-worked and would amount to Rs.1,01,400/- (6500 x 12 x 13x 10/100).
(b) As regards the loss of income during laid up period, there is evidence to show that the claimant was an inpatient for about 11 days, considering the time taken for recovery and his avocation as a farmer, it would be taken for three months as he was not in a 15 position to work and hence, loss of income during laid up period could be taken Rs.19,500/-.
(c) As regards under the head 'pain and sufferings', considering the operation consequent to the injuries, the treatment underwent and discomforts, compensation is to be enhanced to an amount of Rs.10,000/-.
(d) Insofar as contributory negligence, the percentage of contributory negligence that could be attributed to the claimant is to be scaled down from 50% to 10%.
However, if the negligence contributed towards the accident on the part of the claimant is taken at 10% as per the finding made above, the total compensation would be reduced by 10% and amounting to Rs.2,51,010/- (Rs.2,78,900 - Rs.27,890/-). 16
After giving credit to the partial satisfaction of the judgment and award of the Tribunal as it originally stood as per the impugned order, the enhancement amount would be deposited by the insurer within eight weeks before the Tribunal from the date of receipt of a copy of this order.
Entitlement of the claimant in all heads would be as follows:-
PARTICULARS Rs.
Pain and sufferings 35,000
Medical Expenses 88,000
Loss of income due to 1,01,400
permanent disability
Loss of future amenities 10,000
Conveyance, attendant 25,000
charges
Compensation under laid 19,500
up period for 3 months
Total 2,78,900
Accordingly, appeal is allowed in part and there would be an enhancement of Rs.65,500/- and the 17 enhanced amount would be paid to the appellant with interest at 6% p.a. from the date of petition.
Sd/-
JUDGE RS/* MBM