Partly allowed

Ramesh S/O Tangewwa Madiger @ Madar, v. Shivaji S/O Bapu More

Karnataka HC9 Feb 2023MFA/20982/2013

Case brief

AI extract

What is this about?

This judgment addresses Motor Vehicle Appeal Nos. 20983 and 20982 of 2013 arising from a road accident. The High Court of Karnataka, Dharwad Bench, modified the Tribunal's award regarding contributory negligence percentages and recalculated compensation for the injured driver and vehicle owner, while maintaining the core liability finding.

What did the court decide?

Impugned judgment modified; compensation enhanced to Rs. 2,91,006/- for one appellant and Rs. 1,31,250/- for the other, with interest @ 6% p.a.

Ramesh S/O Tangewwa Madiger @ Madar, Vs Shivaji S/O Bapu More — Insurance | Karnataka HC (2023)

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MFA No. 20983 of 2013 C/W MFA No. 20982 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 20983 OF 2013 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 20982 OF 2013

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IN MISCELLANEOUS FIRST APPEAL NO.20983/2013

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BETWEEN:

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VITAL S/O. LAXMAN GUDENNAVAR, AGE: 39 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O. NAGANUR, TQ:GOKAK, DIST: BELAGAVI

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…APPELLANT

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(BY SRI. HANUMANTH R LATUR, ADVOCATE)

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AND:

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HIGH YASHAVANT COURT OF NARAYANKAR KARNATAKA, DHARWAD.

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SHIVAJI S/O. BAPU MORE, AGE: 42 YEARS, OCC: BUSINESS, R/O. YAMAGARNI, TQ:CHIKKODI, DIST: BELAGAVI.

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THE DIVISIONAL MANAGER, THE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., RAMADEV GALLI, BELAGAVI.

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…RESPONDENTS

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(BY SRI. M. K. SOUDAGAR, ADV., FOR R2; APPEAL AGAINST R1 STOOD ABATED)

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MFA No. 20983 of 2013 C/W MFA No. 20982 of 2013

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 02.02.2013 PASSED IN MVC NO.2136/2009 BY THE I-ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL M.A.C.T., GOKAK.

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IN MISCELLANEOUS FIRST APPEAL NO.20982/2013 BETWEEN:

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RAMESH S/O. TANGEWWA MADIGER @ MADAR, AGE: 36 YEARS, OCC: DRIVING WORK, NOW NILL R/O. NAGANUR, TQ:GOKAK, DIST: BELAGAVI

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…APPELLANT

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(BY SRI. HANUMANTH R LATUR, ADVOCATE)

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AND:

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SHIVAJI S/O. BAPU MORE, AGE: 42 YEARS, OCC: BUSINESS, R/O. YAMAGARNI, TQ:CHIKKODI, DIST: BELAGAVI.

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THE DIVISIONAL MANAGER, THE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., RAMADEV GALLI, BELAGAVI.

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…RESPONDENTS

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(BY SRI. M. K. SOUDAGAR, ADV., FOR R2; APPEAL AGAINST R1 STOOD ABATED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 02.02.2013 PASSED IN MVC NO.2135/2009 BY THE I-ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL M.A.C.T., GOKAK.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 20.01.2013, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the common judgment and award passed in MVC No.2135/2009 and MVC No.2136/2009 by the learned I-Additional Senior Civil Judge and M.A.C.T., Gokak.

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By the consent of the learned counsel appearing for

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both the sides, these appeals are taken up for final disposal even though they are posted for admission.

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The parties are referred to as per their ranks before

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the Tribunal for the sake of convenience.

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The brief facts of the case are as follows:

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The petitioner in MVC No.2135/2009 was the driver of Goods Tempo bearing No.KA-23/5057, which was loaded with jaggery on 27.04.2009 and was proceeding from Naganur to Sangli. At about 10.30 a.m., when the tempo reached near to Shiraguppi bus stand on Kagawad-Chikodi road, the driver of the truck bearing No.KA-23/4837 came on the wrong side without giving any signals, in high speed and rash and negligent manner and suddenly dashed to the tempo of the

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MFA No. 20983 of 2013 C/W MFA No. 20982 of 2013

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petitioner. It was alleged that the accident was solely due to the rash and negligent driving of the truck driver.

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The respondent No.1 happens to be the registered owner of the truck and the respondent No.2 is the insurer of the offending truck. The insurance policy was also in force as on date of the accident and that the driver of the offending truck was also holding a valid and effective driving licence as on date of the accident. In the said accident, the petitioner sustained fracture of right leg, fracture of right knee, head injury etc., and he was shifted to M.G. Umarani, Ganga Surgical Clinic at Gokak. He was treated as an inpatient for about one month. It was contended that the petitioner had spent more than Rs.70,000/- towards medical expenses and he has suffered physical functional disability on account of accidental injuries and therefore, staked claim of Rs.10,00,000/- towards compensation.

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The petitioner in MVC No.2136/2009 happens to be the registered owner of 709 goods tempo, which was driven by the petitioner in MVC No.2135/2009 and he has sought for damages from the owner and insurer of the offending truck

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concerning the repair and other charges of his vehicle. He contended that soon after the accident, the tempo was kept for repair for about two months and he spent Rs.1,50,000/towards repair charges. He had to engage another tempo for the purpose of his day to day business activity and therefore, the respondents are liable to pay compensation to him to the extent of Rs.1,000/- per day for two months and as such, he totally staked claim of Rs.4,00,000/- from the respondents.

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During the pendency of the petition before the Tribunal, respondent No.1-Shivaji died and as such his wife was brought on record as respondent No.1A (however the cause title of the judgment do not depict respondent No.1A as a party, but in the decree it is rightly mentioned that the legal heir of respondent No.1 was brought on record as respondent No.1A). So also, it was respondent No.1A, who had filed objections to the petition.

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The respondent No.1A contended that the accident occurred due to the negligence on the part of the driver of the goods tempo and there was no such actionable negligence on the part of the driver of the truck. Inter alia it was also

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contended that if any compensation is awarded, the truck was insured by respondent No.2-Insurance Company and as such, the liability be fastened upon the respondent No.2.

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The respondent No.2-Insurance Company, in both the petitions, contended that the compensation claimed is exorbitant, highly inflated and illegal; apart from contending that the accident occurred due to the negligence on the part of the driver of the tempo. It was contended that there was contributory negligence on the part of the driver of the goods tempo and therefore, the insured and the insurer of the goods tempo are also necessary parties to the petitions. It is contended that the terms and conditions of the policy are violated and therefore, any claim is subject to establishing that there is no violation of terms and conditions of the policy.

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On the basis of the above pleadings, the Tribunal framed necessary issues in both the petitions including an issue regarding the contributory negligence. The petitioner in MVC No.2135/2009 was examined as PW1 and the petitioner in MVC No.2136/2009 was examined as PW2. The doctor, who treated the injured, was examined as PW3 and Exs.P1 to P37 were

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marked on behalf of the petitioners. The respondent No.2Insurance Company examined its law officer as RW1 and documents at Exs.R1 to R6 were marked on its behalf. After hearing the arguments by both the sides, the Tribunal held that the petitioner in MVC No.2135/2009 who was the driver of the tempo had contributed negligence to the extent of 60% and the truck driver had contributed negligence to the extent of 40% and partly allowed the claim regarding the compensation.

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Aggrieved by the said judgment and award, both the petitioners have approached this Court in these appeals.

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On issuance of notice, it was reported that the respondent No.1 is dead and as such, the appellants herein having not taken any steps, it was noted that the appeal against respondent No.1 is abated. However, it is relevant to note that the impugned judgment did not mention about respondent No.1A, who was brought on record but in the decree passed by the Tribunal there is a mention about bringing of the legal representative of deceased respondent No.1. In fact, it is the respondent No.1A, who had filed objections to the petition. Therefore, while arraying respondent

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No.1 in this appeal, there is an error that has occurred. Further, the liability against the respondent No.2 having been admitted and respondent No.2 having not filed any appeal, non-serving of notice to respondent No.1A is not going to affect the merits of the case.

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The petitioner in MVC No.2135/2009, who is appellant in MFA No.20982/2013 contended that the finding regarding contributory negligence is incorrect and the Tribunal has not considered the evidence on record in a proper way. It is contended that the compensation assessed by the Tribunal is also erroneous and it should have considered the income of the petitioner at a sum of Rs.8,000/- per month and disability at 45% as he was a driver by profession. In addition, it is contended that the Tribunal erred in holding that the income of the petitioner at Rs.5,000/- and disability was only to the extent of 30%. Therefore, assailing the quantum of compensation awarded by the Tribunal as well as contributory negligence, the petitioner contends that the impugned judgment needs to be interfered with.

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The petitioner in MVC No.2136/2009 who is appellant in MFA No.20983/2013 contends that the damages awarded by the Tribunal at a sum of Rs.60,000/- is bereft of consideration of evidence on record and there was no reason assigned by the Tribunal as to why the receipt for an amount of Rs.2,20,028/- was not accepted. He has also contended that the contributory negligence considered by the Tribunal is incorrect and as such, the appeal has to be allowed.

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I have heard the arguments by the learned counsels for the appellants and the learned counsel for the respondent No.2-Insurance Company.

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During the arguments, the learned counsel for the appellants has made available the certified copies of the deposition of the witnesses as well as the certified copies of the exhibited documents.

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The learned counsel appearing for the appellant contended that the attribution of contributory negligence to the extent of 60% to the appellants is erroneous in view of the fact that the police had filed charge sheet against the truck driver.

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He has drawn attention of this Court to the police papers which are at Ex.P1 to P8.

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Per contra, learned counsel appearing for the respondent No.2-Insurance Company has contended that the averments in the complaint as well as the evidence on record show that it was the tempo driven by the appellant, which had dashed on the right side body of the truck and this clearly goes to show that the accident was due to the negligence on the part of the tempo driver. He submits that the IMV report also shows the damages on the right side of the truck and therefore, the police papers cannot be considered to be the gospel truth. On this count, he contends that there was contributory negligence on the part of the driver of the tempo.

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The FIR and the charge sheet state that the truck driver drove the truck from the cross road on the left side into the main road without any signal and dashed against 709 goods tempo which was coming from opposite direction and caused the accident.

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In other words, the police papers depict that the truck came from the cross road of the left side and dashed to

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the 709 goods tempo causing accident. If this version is taken to be true, then obviously the front portion of the truck should have sustained damages. On the contrary, the IMV report produced at Ex.P5 discloses that the truck had sustained damages to the diesel tank, front right side cargo body. On the other hand, the damages to the 709 goods tempo was to the front i.e. wind screen, bonnet, front shape of the body, front bumper, radiator, right rear view mirror, both side doors, steering system etc. This discloses that it was the 709 goods tempo, which had dashed the right side of the truck at the place where the diesel tank is located.

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The perusal of the cross-examination of PW1 discloses that the accident happened when the truck entered the main road from Naganur to Raibag and the truck had entered the said road from the left side. It is admitted by PW1 that he had to reach Sangli at 12.30 p.m., truck was loaded with sand and 709 goods tempo was loaded with jaggery. In other words, both the vehicles were heavily loaded when the accident happened. It is obvious that the truck driver who was about to enter the main road from Naganur to Raibag, should have taken precaution and after ascertaining that no vehicle is

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plying on the main road, he should have entered the main road. However, it appears from the cross-examination of PW1 as well as IMV report that the truck abruptly entered the main road without observing the 709 goods tempo which was coming from right side of the truck. The traffic regulations require that the drivers have to give way for the vehicles which are coming from their right side. This cardinal principle and the rule has not been observed by the truck driver.

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Be that as it may, when a driver is moving on the main road, he should be cautious while approaching a cross road. The appellant should have slowed down when he is approaching the cross road and he should have anticipated that vehicle may enter main road from the cross road. Therefore, there cannot be any doubt that there is contributory negligence on the part of appellant-PW1 also.

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The next question that remains to be determined by this Court is about the percentage of contributory negligence. It is obvious that the truck is heavy goods vehicle and it was loaded with sand. The vehicle of the appellant was 709 goods tempo and it was also loaded with jaggery. The extent of

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negligence on the part of the truck driver appears to be more because it is a heavy goods vehicle and he was entering the main road from the cross road. He did not allow the vehicle which was coming from the right side to pass through before he enter the main road from the cross road. Therefore, the contributory negligence on the part of the appellant/709 goods vehicle driver appears to be less when compared to the negligence on the part of the truck driver. The truck driver entered the main road without stopping his vehicle and allowing the tempo to pass through, which was obviously coming from the right side and the 709 goods tempo driver could not stop his vehicle because he was in speed and it was heavily loaded.

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The Tribunal in the impugned judgment determined the negligence on the part of the appellant at 60%. In paragraph 19 of the impugned judgment, there is no mention about the regulations which should have been observed by the truck driver and it appears the Tribunal was misdirected by the fact that the IMV report state that the front portion of the tempo was damaged and the right side body of the truck was damaged. Therefore, the finding arrived by the Tribunal that the truck driver contributed to the accident to the extent of

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40% appears to be incorrect and unsustainable in law. Under these circumstances, this Court is of the opinion that the contributory negligence on the part of the truck driver is 75% and that of the 709 goods tempo driver is 25%.

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The next aspect that remains to be determined is in respect of compensation. The Tribunal in paragraph 22 of the judgment has come to the conclusion that the disability stated by PW3 is particular to the limb and therefore, it has taken the disability of the appellant-petitioner at 30%. It is also pertinent to note that the disability of the particular limb as stated by PW3 is 45% and even then, considering the avocation of the appellant-petitioner, the functional disability is taken at 30%. I do not find any reason to disagree with the said finding reached by the Tribunal. By considering Ex.P23 i.e. driving licence, the date of birth of PW1 is taken as 16.07.1977 and therefore, by holding that he was aged 32 years as on the date of accident, multiplier 16 is adopted. By considering the income of the appellant at Rs.5,000/- per month, a sum of Rs.2,88,000/- is considered to be the loss of future income due to disability. Adverting to the contention of the respondent No.2 that the owner and insurer of the tempo should also have been arrayed

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as respondents, it has taken into consideration a decision of the Full Bench of this Court in the case of KSRTC vs. Arun @ Aravind and others¹ . Though the ratio laid down in the said decision is not directly applicable, it is settled principle of law that the petitioner could not have maintained a petition under Section 166 of the Motor Vehicles Act against his own owner and insurer.

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The Tribunal has considered the compensation under different heads as follows:

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Head	Amount (in Rs.)
Towards loss of future earnings due to disability	2,88,000/-
Towards medical expenses	45,509/-
Towards loss of amenities, happiness and frustration	20,000/-
Towards loss of income during laid up period	4,500/-
Towards conveyance, attendant charges, food, nourishment etc.,	10,000/-
Towards pain and suffering	10,000/-
Towards loss of expectation in life	10,000/-
Total	3,88,009/-

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I do not find any reason to disagree with the assessment of compensation made by the Tribunal. However, out of the above said compensation arrived at, 25% has to be

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1 ILR 2004 KAR 26

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deducted towards contributory negligence of the appellant herein. Therefore, the petitioner in MVC No.2135/2009 is entitled for 75% of Rs.3,88,009/-, which comes to Rs.2,91,006/-.

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Coming to the assessment of compensation in MVC No.2136/2009 is concerned, the Tribunal has noted that the petitioner had claimed that he had spent Rs.1,50,000/- towards repairs and for two months, the vehicle was kept idle for repairs and therefore, he is entitled for Rs.1,000/- per day during the said period. It is also noticed that the PW2 had not claimed compensation for damages from his own insurer and there was no survey of the damages by an authorized surveyor. Ex.P31 to P33 are the documents showing the fact that the petitioner had spent Rs.2,20,028/-. But the claim was only for Rs.1,50,000/- regarding the damages during the repair period. Obviously, mechanic or a competent person who repaired the said vehicle and who had issued the receipts has not been examined and therefore, the Tribunal disbelieved the claim and awarded a sum of Rs.1,50,000/- and deducted 60% of the same towards contributory negligence and has awarded a sum of Rs.60,000/-. It is pertinent to note that though the

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appellant-petitioner had produced receipts worth Rs.2,20,028/, those receipts were not proved as required under law by examining the author. There is no material on record to show that the repairs required spending of a sum of Rs.2,20,028/- as per the documents produced. There is nothing on record to show that the repairs involving the spares mentioned in Ex.P31 to P33 were actually effected to the said vehicle. Moreover, there is no material on record to show that during the period of repairs i.e. for two months, the petitioner had hired any other vehicle, which involved payment of the hire charges for the said period. He also did not produce any document to show that he was earning a sum of Rs.1,000/- per day by use of the vehicle which met with the accident. The learned counsel for the appellant made a fervent argument stating that Ex.P34 to P37 which are the photographs of the vehicle may be seen and the repair charges may be considered by this Court.

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On perusal of the documents produced, it would suffice that a sum of Rs.25,000/- is awarded to the petitioner for having sustained loss during the period of repairs and towards loss of income that he would have earned from use of said vehicle as well as by way of paying rentals to the other

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vehicle to carry on his business. This observation is based on the fact that the vehicle was transporting jaggery to Sangli. Under these circumstances, the assessment of compensation arrived by the Tribunal at a sum of Rs.1,50,000/- has to be maintained and in addition to it, Rs.25,000/- has to be awarded towards loss of earnings by the petitioner and the amount for which he would have spent for hiring a vehicle for his business. Thus, a sum of Rs.1,75,000/- is assessed towards damages sustained by the petitioner. Out of the said amount, 25% has to be deducted towards contributory negligence and therefore, he is entitled for remaining 75% i.e. Rs.1,31,250/-

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Under these circumstances, for the reasons discussed supra, both the appeals deserve to be allowed in part. Hence, the following:

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ORDER

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i) The appeals are allowed in part.

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ii) The impugned judgment and award dated 02.02.2013 passed in MVC No.2135/2009 and MVC No.2136/2009 is modified to the extent that he petitioner in MVC No.2135/2009, who is appellant in MFA No.20982/2013, is entitled for

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75% of Rs.3,88,009/-, which comes to Rs.2,91,006/and the petitioner in MVC No.2136/2009, who is appellant in MFA No.20983/2013 is entitled for 75% of Rs.1,75,000/-, which comes to Rs.1,31,250/along with interest @ 6% per annum from the date of petition till the date of payment.

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iii) Respondent No.2-Insurance company is directed to deposit the compensation amount together with interest within a period of three months from the date of receipt of the copy of this order.

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iv) Any amount which has been deposited by the respondent No.2-insurance company as per the order of the Tribunal, is ordered to be adjusted.

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v) In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed off accordingly.

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Sd/JUDGE

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YAN, List No.: 1 Sl No.: 39

Ramesh S/O Tangewwa Madiger @ Madar, v. Shivaji S/O Bapu More

Case brief

What is this about?

What did the court decide?

Ramesh S/O Tangewwa Madiger @ Madar, v. Shivaji S/O Bapu More

Case brief

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What did the court decide?

What the court decided

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