Karnataka High Court
Mr Devaraju T vs The United India Insurance Company Ltd on 19 December, 2013
Equivalent citations: 2014 AAC 1240 (KAR), 2014 (2) AIR KANT HCR 234, (2015) 1 ACC 712, (2015) 1 ACJ 245
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
M.F.A.No.1049 OF 2013 (MV)
C/W
M.F.A.No.6922 OF 2012
IN M.F.A.No.1049 OF 2013
BETWEEN:
MR. DEVARAJU T
S/O. G.THIMMAIAH
AGED ABOUT 28 YEARS
R/AT BYALA VILLAGE
PURUVALA HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT
... APPELLANT
(BY SRI:M.S.PARTHASARATHY, ADVOCATE AND
SMT: B.CHANDRAKALA, ADVOCATE)
AND
1. THE UNITED INDIA INSURANCE COMPANY
LTD., REPRESENTED BY ITS MANAGER
5TH AND 6TH FLOOR,
KRISHI BHAVAN
(PRESENTLY 6TH FLOOR)
HUDSON CIRCLE
NRUPATHUNGA ROAD
BANGALORE - 560 002
2. MR.M.SENGOTAYAN
S/O. MUTHURSWAMY, MAJOR
NO.6/25, VISWANATHAKOONADAM PALYAM
RAMAPURAM
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TIRUCHENGODU TALUK
NAMAKKAL DISTRICT
TAMIL NADU ... RESPONDENTS
(BY SRI:T.MOHAN KUMAR, ADVOCATE FOR R1;
R2 NOTICE DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:06.03.2012 PASSED IN MVC
NO.565/2011 ON THE FILE OF THE PRINCIPAL MACT, CHIEF
JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.6922 OF 2012
BETWEEN
UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE
5TH AND 6TH FLOOR, KRISHI BHAVAN
(PRESENTLY 6TH FLOOR)
HUDSON CIRCLE, NRUPATHUNGA ROAD
BANGALORE - 560 002
REPRESENTED BY ITS MANAGER ...APPELLANT
(BY SRI: T.MOHAN KUMAR, ADVOCATE)
AND
1. SRI. DEVARAJ. T
S/O. SRI.G.THIMMAIAH,
AGED 27 YEARS
R/A BYALYA VILLAGE
PURUVALA HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT
2. SRI.SENGOTAYAN
S/O. SRI.MUTHURSWAMY
MAJOR
R/AT NO.6/25, VISWANATHA
KOONDAM PALYAM
RAMAPURAM
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THIRUCHENGODU TALUK
NAMKKAL DISTRICT
TAMIL NADU ...RESPONDENTS
(BY SRI: M.S.PARTHASARATHI, ADVOCATE., AND
SMT.B.CHANDRAKALA, ADVOCATE, FOR R1;
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:06.03.2012
PASSED IN MVC NO.565/2011 ON THE FILE OF THE CHIE
JUDGE, PRINCIPAL MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING A COMPENSATION OF RS.6,98,383/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THESE MFA'S ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are directed against the judgment and award in MVC No.565/2011 dated 06.03.2012 on the file of the Principal, MACT and Chief Judge, Court of Small Causes, Bangalore.
2. MFA No.1049/2013 is filed by the claimant - T.Devaraju seeking enhancement of compensation. The connected appeal MFA No.6922/2012 is filed by United India Insurance Company Ltd., challenging not only the liability but also quantum of compensation.
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3. MVC.No.565/2011 was filed by the claimant seeking compensation on account of the injuries said to have been sustained by him in a motor vehicle accident occurred on 13.12.2010. According to him he was riding a Hero Honda Splendor Plus motor cycle bearing Registration No.KA-06-EC-5429 on NH-4 Tumkur-Bangalore Highway. The lorry bearing registration No.TN-34-K-5621 was parked by the side of the road without any signal or indicator. Since the parking of the lorry was not visible, the motor cycle ridden by the claimant dashed against the lorry on the rear side causing grievous injuries to him. Immediately, he was shifted to Harsha Hospital, Nelamangala. Thereafter, he was shifted to Nimhans and later to Narayana Nethralaya. According to him he had spent a huge amount towards medical expenses. He has claimed a total compensation of Rs.15,00,000/-.
4. The respondent - insurance company has filed its written statement. On the basis of the pleadings of the parties, the Court below has framed the following issues:
"1. Whether the petitioner proves that he sustained injuries in a motor vehicle -5- accident that occurred on 13.12.2010 at about 05:30 hours, near Deluxe Petrol Bunk, on NH-4, Bangalore - Tumkur High way on account of rash and negligent driving of lorry bearing registration No.TN-34-K-5621?
2. Whether the Insurer proves that driver of the vehicle bearing registration No.TN-34-K-5621 was not holding valid and effective driving licence as on the date of the accident?
3. Whether the petitioner is entitled for compensation? If so, how much and from whom?
4. What order?"
5. The claimant got himself examined as PW-1. Dr. Murthiunjaya T.D., Orthopaedic Surgeon of Harsha hospital was examined as PW-2. Dr. Elvis Rodrigues, Assistant Professor, Neuro Surgeon, BMCRI was examined as PW3. A witness by name K.H.Manjunath, was examined as PW-4. Documents Exs.P1 to P28 were marked in their evidence. The respondents have not let in any evidence. On appreciation of the materials on record, the Court below has -6- awarded a total compensation of Rs.6,98,838/- with interest at 6% per annum from the date of the petition till the date of deposit.
6. I have heard the learned counsel for the parties.
7. Learned counsel for the insurer of the offending vehicle submits that the Court below was not right in fastening the entire liability on the insurer of the lorry. It is argued that the lorry was parked on the left side of the Highway without any signal. However, the claimant who was riding the motor cycle should have been vigilant. He should have noticed the parking of the lorry. There was enough space for him to avoid the accident, if he was vigilant. The Court below ought to have apportioned the liability by holding that the claimant was also negligent to some extent.
8. Alternatively it is contended that the compensation awarded by the Court below is excessive. The Court below is not justified in holding that the claimant had sustained 60% permanent disability to the whole body. The compensation awarded towards pain and suffering in a sum of Rs.75,000/- is on a higher side. Learned counsel has -7- relied on the following decisions in support of his contentions:-
1) 2009 ACJ 2003, between Raj Rani and others Vs. Oriental Insurance Co.Ltd. and others.,
2) 2011 ACJ 2642, between New India Assurance Co. Ltd., Vs. Asha Prasad and others.,
3) 2011 ACJ 2787, between Dr.Bhaktaprahlad and another Vs. Nirwani and others.,
4) 2009 ACJ 2600, between Oriental Insurance Co.LTd., Vs. Chennappa Shettigar and others.,
9. On the other hand, Smt. B.Chandrakala, learned counsel appearing for the claimant submits that the accident had occurred on the early morning of 13.12.2010. There was heavy snow fall on that day on account of which, the claimant could not sight the lorry parked on the highway. If the driver of the lorry had switched on the signal light, the claimant would have sighted the lorry. The lorry was parked un-lawfully on the road. In this connection, -8- learned counsel for the claimant has drawn my attention to Section 122 of the Motor Vehicles Act, 1988, and the decision of the Division Bench of this Court in Kumari Jyothi & Ors. Vs. Mohd. Usman Ali & Ors., reported in ILR 2002 KAR 897.
10. It is her further submission that the insurer has not pleaded nor has it established the contributory negligence on the part of the claimant. In support of the said proposition, she has relied on the decision of Full Bench of this Court in the case of North East Karnataka Road Transport Corporation Vs. Smt. Vijayalakshmi & Ors., reported in ILR 2011 KAR 4845.
11. It is further contended that the claimant was working as a Casual Accountant and drawing a salary of Rs.4,000/- per month. The Neuro surgeon in his evidence has deposed that the claimant had sustained 70% permanent disability to the whole body. The orthopaedic surgeon has assessed the permanent disability to the whole body at 20%. On account of the injuries sustained by him, he is not in a position to work as before. Therefore, the Court -9- below ought to have considered the functional disability of the claimant, while assessing the loss of future earning capacity. It is further contended that, the permanent disability assessed by the Court below at 60% is on the lower side. The claimant has suffered a lot on account of the injuries sustained by him in the accident. He was hospitalized for 18 days. The Court below has not awarded appropriate compensation towards pain and suffering, towards loss of income during the laid up period and towards conveyance, nourishment etc. The Court below has not awarded any compensation towards loss of amenities. She prays for re-assessment of compensation.
12. I have carefully considered the arguments of the learned counsel made at the Bar and perused the materials placed on record.
13. There is no dispute as to the occurrence of the accident. The accident had occurred on 13.12.2010 at about 05:30 a.m. It is not disputed that the lorry was parked on the National Highway without any signal or indicator. It is clear from the evidence on record that there was snowfall at -10- the time of occurrence of the accident. That is how the claimant could not sight the parked lorry on the road while riding the motor cycle.
14. The contention of the insurer is that there was enough space for the claimant to ride his motor cycle without dashing it against the lorry. Therefore, the Court below ought to have held that the rider of the motor cycle was also negligent to some extent. I have carefully perused the written statement filed by the insurer before the Tribunal. No such plea has been raised in the written statement, nor has the insurer let in any evidence.
15. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. The expression 'contributory negligence' means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong. It is well settled that where, by his negligence, if one -11- party places another in a situation of danger, which compels, other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of difficulty (See Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Others reported in 2002 ACJ 1720). In this case, the Apex Court, has relied on the decision in Swadling Vs. Cooper, (1931) AC 1, wherein it has been held that 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.
16. A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. The question of contributory -12- negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. The Apex Court in Pramodkumar's case (supra) was considering a similar case relating to contributory negligence. In the said case, the respondent did not contend before the Tribunal that there was contributory negligence on the part of the appellant, driver of the car. Taking note of this aspect of the matter it has been observed as under:
"11. It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as a result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the case, there was an attempt on the part of the respondents to contend that driver of the car was trying to overtake a -13- truck which was going ahead of the car. The appellant car driver had also pleaded that the truck driven by the respondent No.2 was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 ft. and there were mud shoulders on either side having a width of 3 ft. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a 3 ft. width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the respondent No.2 almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant's -14- failure to swerve to the extreme left to the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the respondent No.2, the truck driver had no case that the appellant was negligent."
(underlining is by me)
17. A Full Bench of this Court in Smt. Vijayalakshmi's case (supra) has held 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 owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence.
18. Section 122 of the Motor Vehicles Act, 1988 bars a person in charge of a motor vehicle from causing or allowing the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. The -15- Division Bench of this Court in Kumari Jyothi's case (supra) has considered the case of a lorry parked without any sign or indicator on a High Way. The Court after taking into consideration Section 122 of the M.V. Act, has held that where the place was dark and where the vehicle was parked without any sign or indicator to warn other road users, the negligence is on the driver of the vehicle and not the driver of any other vehicle which has dashed into such parked vehicle.
19. Now let us consider the decisions relied on the by the learned counsel for the insurer. In Raj Rani's case (supra), the Hon'ble Supreme Court was considering the case of the car driver driving at normal speed at 40 kmph, owing to lights of another vehicle coming from opposite direction, sighted the truck only at last minute and could not avoid the accident resulting in his death. The High Court has held that the drivers of both vehicles were equally negligent. The said view has been up held by the Supreme Court. In Ashaprasad's case (supra), a truck trailer was parked in the middle of the road without giving any signal or indication. The driver of the said vehicle tried his best to -16- avoid the accident by applying brakes. However, he could not avoid the accident. Therefore, this Court has apportioned the liability in the ratio of 25%:75% respectively between offending vehicle and the vehicle driven by the victim.
In Dr.Bhaktaprahlad's case (supra), this Court had apportioned the negligence in the ratio of 10%:90% between the truck driver and the motor-cyclist.
In Chennappa Shettigar's case (supra), a tempo hit the parked truck in the mid night and the passenger in the tempo sustained fatal injuries. The liability was fastened on the offending vehicle to the extent of 50%.
In all these cases, the question relating to the effect of not pleading the contributory negligence by the insurer or adducing the evidence in support of the said plea has not been considered. The effect of Section 122 of the MV Act has also not been considered. These decisions have no application to the facts of the present case.
20. In the instant case, admittedly the vehicle was parked on the National High Way without any sign or indicator warning the other road users. As stated above, the -17- claimant could not sight the lorry parked on the high way as there was snow fall at the relevant point of time. Had the driver of the lorry parked the vehicle with an indicator, the claimant could have sighted the lorry and avoided the accident. It was only on account of the negligence of the driver of the parked lorry, the accident had occurred. The insurer has neither pleaded nor let in any evidence in order to show that the rider of the motor cycle was also blame worthy or that he has not taken reasonable care to avoid the accident. Therefore, I hold that the driver of the offending lorry alone is responsible for the accident.
21. That brings me to the next question as to whether the compensation awarded by the Tribunal is just and proper?
22. The claimant has stated that he was earning Rs.4,000/- per month, which has been accepted by the Trial Court. The Doctor Murthiunjaya T.D., Consultant Orthopaedic Surgeon, at Harsha Hospital, Nelamangala, Bangalore Rural District was examined as PW2. He has given the details of the injuries sustained by the claimant. He has -18- assessed the disability to left lower limb at 30%, right upper limb at 30% and whole body disability at 20%.
23. Dr. Elvis Rodrigues, Assistant Professor, Neuro Surgeon, BMCRI, has stated in his evidence that the claimant has lost left eye. He has assessed the permanent disability to the whole body at 70%. These witnesses were cross-examined at length. However, nothing worthwhile has been elicited in the cross-examination to discredit their version. It is clear from the evidence of Doctors coupled with other medical records that the claimant had sustained grievous injuries in the accident. He was aged 26 years at the time of accident. It is also clear that the claimant is not in a position to walk fast, bend knee, squat or sit in crossed legged posture. There is difficulty in right hand movements or the fine movements'. Tenderness is present over the left knee. There is 50% restriction of left knee bending and 50% of flexion extension of right wrist. It is also clear that he has undergone surgery of left patella. Taking into consideration, the age, the nature of work and the injuries sustained by the claimant, the Court below ought to have taken 70% permanent disability to the whole body.
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24. By taking the income of the claimant at Rs.4,000/- per month, with the application of multiplier 17 and 70% permanent disability to the whole body, the compensation payable towards loss of future earning capacity comes to Rs.5,71,200/-.
25. As stated above, the claimant had suffered a lot on account of the injuries sustained by him in the accident. He is not in a position to enjoy the life as before. In the circumstances, a sum of Rs.1,00,000/- each has to be awarded towards pain and suffering and loss of amenities. The compensation awarded by the tribunal towards Medical expenses in a sum of Rs.1,10,238/- is just and reasonable. He was hospitalized for 18 days. He is entitled for a sum of Rs.25,000/- towards conveyance, attendant charges etc., A sum of Rs.24,000/- (six months earning) is awarded towards loss of income during the laid up period.
26. Thus, compensation payable to the claimant is re-assessed as under:
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HEADS Rs. Pain and suffering 1,00,000/- Loss of amenities 1,00,000/- Loss of income during laid up period 24,000/- Loss of future earning capacity 5,71,200/- Medical expenses 1,10,238/-
Conveyance, nourishment and incidental 25,000/-
charges
TOTAL 9,30,438/-
27. The Court below has awarded a total
compensation of Rs.6,98,838/- which has to be deducted from the aforesaid sum and the balance compensation payable to the claimant is Rs.2,31,600/-.
28. In view of the above, I pass the following:
ORDER
1. MFA No.6922/2012 filed by the insurer is hereby dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.
2. MFA.No.1049/2013 filed by the claimant is allowed in part. United India Insurance company Ltd,. (the 1st respondent in MFA No.1049/2013 and appellant in MFA No.6922/2012) is directed to deposit a sum of Rs.2,31,600/- with interest at 6% per annum -21- from the date of petition till the date of deposit within a period of six weeks from the date of receipt of copy of this order. The claimant is permitted to withdraw the said amount on its deposit. No costs.
Sd/-
JUDGE HJ*