High Court allowed the appellant's appeal partly against the Motor Accident Claims Tribunal award. The court set aside the finding of 50% contributory negligence due to lack of evidence but enhanced the compensation for pain and suffering, future income, and incidental charges, awarding a total of Rs. 1,47,660.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH 2020
PRESENT
THE HON’BLE MR.JUSTICE B.A.PATIL
AND
THE HON’BLE MR.JUSTICE M.I.ARUN
M.F.A. NO.102983/2014 (MV)
BETWEEN
SAMBAJI GANABA KALICHE
AGE: 27 YEARS, OCC: MESON & AGRL., (PRESENT NIL), R/O: G.P. NO. 349, AT POST MAADIGUNJI, KHANAPUR, HUCHENHATTI, PEERANWADI BELAGAVI TQ & DIST: BELAGAVI
... APPELLANT
(BY SRI. HARISH S. MAIGUR, ADV.)
AND
... RESPONDENTS
(BY SRI. SURESH S. GUNDI, ADV. FOR R2, NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 15.10.2014, PASSED IN M.V.C. NO.958/2013, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, BELGAUM, PARTLY ALLOWING THE CLAIMS PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF COMPENSATION.
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THIS MFA COMING ON FOR ADMISSION THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the appellant –
claimant challenging the judgment and award passed by the II Additional Senior Civil Judge and Additional MACT, Belagavi in M.V.C. No.958/2013 dated 15.10.2014.
3. Though this case has been listed for admission,
with the consent of learned counsels appearing for the parties, the same is taken up for final disposal.
left side of the road and at that time, a Mahindra Xylo bearing registration No.MH-12/Z-2665 came from opposite direction with a great speed and rashly and negligently. While overtaking, the said vehicle came on the wrong side
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and dashed to the motorcycle on which petitioner was proceeding. As a result of the same, he fell down and sustained injuries to his head and other parts of the body. Immediately he was taken to Lake View Hospital, Belagavi and there he was treated as in-patient for seven days. It is further contended that he was hale and healthy and he was a skilled mason and was earning Rs.8,000/- per month and also doing agricultural work and earning Rs.50,000/- per annum. For having suffered injuries in the accident, he filed the claim petition.
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the appellant – claimant has contributed to the alleged accident to the extent of 50%. It is his further submission that while over taking the vehicle, he came on the wrong side and hit the motorcycle on which the appellant – claimant was proceeding. It is his further submission that the Tribunal in the absence of any evidence relating to the negligence, only on imagination on its own made out a case to respond and has fixed 50% contributory negligence on the part of the appellant.
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claimant has sustained head injuries and when a medical practitioner has given the disability by assessing and examining the appellant – claimant, then under such circumstances, the Trial Court ought to have awarded the compensation under the same head. On these grounds, he prayed to allow the appeal and to enhance the compensation.
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contributed to the alleged accident to the extent of 50% and there are no good grounds to enhance the compensation. On these grounds, he prayed to dismiss the appeal.
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conclusion that in an attempt to overtake another vehicle which was proceeding in front of the motorcycle or otherwise an accident might have happened, on the basis of only presumption and assumption it has arrived to the conclusion and has held that the appellant has contributed to the extent of 50%.
12. The claimants have challenged the determination made by the High Court mainly on the following terms:-
(i) The foreign exchange rate as was prevailing at the time of award i.e. May, 1993, and shown in Exh.-A8, ought to have been
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taken into consideration for calculation of compensation.
(ii) In absence of any evidence relating to negligence on the part of the deceased and in view of the direct evidence on record, both the Tribunal and the High Court erred in holding that there was negligence on the part of the deceased.
24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot
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give any specific finding about negligence on the part of any individual.
26. The aforesaid evidence, Exh.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Exh.- B2, ‘Scene Mahazar’ and the post mortem report Exh.-A5, cannot take the place of evidence, particularly when the direct evidence like independent eye-witness, PW.3, F.I.R., Exh.A1, charge sheet, Exh.A4 and F.I.statement, Exh.B1 are on record.
In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.”
evidence to substantiate the said fact and even the records indicate that the case has been registered as against the
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driver of the Mahindra Xylo vehicle and no case has been registered on the appellant – claimant. In the absence of any evidence produced by the respondent – insurer, the finding given by the Tribunal that the appellant has also contributed to the said accident is not justifiable. The same is liable to be set aside.
up by the learned counsel for the appellant is that the compensation which has been awarded is on the lower side. As could be seen from the medical records, the appellant – claimant has sustained (i) communited fracture of occipital bone bilaterally involving foramen magnum (ii) right temporal bone with transverse fracture of patrons part of temporal bone (iii) depress fracture of right zygomatic bone. A discharge card Ex.P-13 discloses the said injuries and he was there in the hospital for a period of seven days.
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Dr.S.R.Angadi. Though in the examination-in-chief, he has deposed that there is a permanent physical disability to the extent of 10% due to communited fracture of occipital bone bilaterally involving foramen magnum of skull bone, but during the course of cross-examination, he has admitted that he has not given treatment to the appellant – claimant and further admitted that the appellant has approached him only for issuance of disability certificate and he has gone through the wound certificate, discharge card, CT Scan report of Lake View Hospital before issuing disability certificate, as per Ex.P-31. He has further admitted that as per the wound certificate, except injury No.3, other injuries are simple in nature and the appellant has been given a conservative treatment. He has further admitted that the said hospital is a well equipped hospital and the appellant – claimant has been given good treatment in the said hospital.
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for assessment of permanent physical disability and he is not a treated doctor and he has approached only to get disability certificate. Further he has deposed that at the time of assessing the injuries, the appellant had recovered from the head injuries. By going through all the material which has been produced, though the appellant – claimant has suffered with head injuries the evidence produced clearly goes to show that he has been recovered from the said injury fully and there was no disability and even the evidence of P.Ws.2 and 3 discloses that there is no disability. As such, by taking into consideration, the said aspect, the finding given by the Tribunal that there is no disability, as such appears to be justifiable.
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the memory and the brain and he might have suffered the pain and sufferings during the period of his treatment.
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In that light, appeal is allowed-in-part and the judgment and award passed by the II Additional Senior Civil Judge and Additional MACT, Belagavi in M.V.C. No.958/2013 dated 15.10.2014 is modified as indicated above.
The respondent – insurer is hereby directed to deposit the compensation amount including the enhanced amount with up to date interest within six weeks from the date of receipt of a copy of this order.
Send back the trial court records.
Sd/JUDGE
Sd/JUDGE
Rsh
3 issues framed by the court
Whether the Tribunal erred in fixing 50% contributory negligence on the appellant without direct evidence.
Whether the compensation awarded by the Tribunal was adequate considering the injuries sustained.
Whether the medical witnesses assessed permanent disability correctly given the treatment received.
Colour shows how this judgement treated each authority
Jiju Kuruvila and others vs. Kunjujamma Mohan and othersApplied¶35
Jiju Kuruvila and others vs. Kunjujamma Mohan and others 2013 ACJ 2141
1 provisions across 1 enactments
Sambaji Ganaba Kaliche
Mohan Sadashiv Sawant
The Manager Reliance General Insurance Co., Ltd.
B.A. Patil
M.I. Arun
As recorded by the court registry
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