Partly allowed

The Divisional Manager v. Sunil S/O.Kadagouda Patil

Karnataka HC14 Jun 2024MFA/101983/2020

Case brief

AI extract

What is this about?

High Court allowed both appeals partially and modified the motor accident tribunal award. The court upheld the negligence ratio but enhanced the compensation to Rs. 4,90,315/- based on higher future earning loss and amenity figures.

What did the court decide?

Judgment and award confirmed and modified; compensation enhanced to Rs. 4,90,315/- with interest at 6% p.a.

The Divisional Manager Vs Sunil S/O.Kadagouda Patil — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:8047-DB MFA No. 101983 of 2020 C/W MFA No. 102303 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.101983 OF 2020 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 102303 OF 2020

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IN MFA NO.101983 OF 2020

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BETWEEN:

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MARUTI GALLI, BELAGAVI, REP.BY ITS AUTHORIZED SIGNATORY, DIVISIONAL MANAGER.

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…APPELLANT

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(BY SRI SHARNAPPA S.KOLIWAD, ADVOCATE)

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AND:

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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SUNIL S/O. KADAGOUDA PATIL, AGE: 43 YEARS, OCC: AGRICULTURE AND MILK VENDING, R/O. JANGATIHAL, TQ: HUKKERI, DIST:BELGAVAI, PIN-591309.

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MEHABOOB ABDULMUNAF MULLA, AGE: 28 YEARS, OCC: DRIVER, R/O. NEAR BAZAR FOUNTAIN, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI, PIN-591309. (OWNER OF THE TEMPO BEARING NO.KA-23/A-6521)

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…RESPONDENTS

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(BY SRI VITTAL S.TELI, ADVOCATE FOR R1; SRI RAJENDRA R.PATIL, ADVOCATE FOR R2)

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NC: 2024:KHC-D:8047-DB MFA No. 101983 of 2020 C/W MFA No. 102303 of 2020

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 08.11.2019 PASSED IN MVC NO.622/2018 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI AWARDING COMPENSATION OF RS.4,44,265/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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IN MFA NO.102303 OF 2020

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BETWEEN:

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SUNIL S/O. KADAGOUDA PATIL, AGE: 43 YEARS, OCC: AGRI. AND MILK VENDING, R/O. JANGATIHAL, TQ: HUKKERI, DIST:BELGAVAI-591309.

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…APPELLANT

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(BY SRI VITTAL S.TELI, ADVOCATE)

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AND:

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MEHABOOB ABDULMUNAF MULLA, AGE: 28 YEARS, OCC: DRIVER, R/O. NEAR BAZAR FOUNTAIN, HUKKERI, TQ: HUKKERI, DIST: BELAGAVI-591309.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., MARUTI GALLI, BELAGAVI-590016.

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…RESPONDENTS

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(BY SRI RAJENDRA R.PATIL, ADVOCATE FOR R1; SRI S.S. KOLIWAD, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 08.11.2019 PASSED IN MVC NO.622/2018 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR ADMISSION, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these appeals are listed for Admission, with the consent of the learned counsel appearing for the parties, the same are taken up for disposal.

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Both appeals arise out of Judgment and Award dated 08^th November, 2019 passed in MVC No.622 of 2018 by the IV Additional District Judge and Motor Accident Claims Tribunal-V, Belagavi (for short hereinafter referred to as "the Tribunal").

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For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.

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The relevant facts leading to filing of these appeals are:

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The claimant has filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained in the accident. It is stated in the claim petition that on 13^th April, 2016 at about 11.00 am, when the claimant was proceeding on his motorcycle bearing Registration No.KA-49/S-8942 towards Ghataprabha side on HukkeriGhataprabha Road, the driver of Toofan Tempo Trax No.KA-

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23/A-6521 which was proceeding ahead of his motorcycle, had negligently parked it on the middle of the road causing inconvenience to the ongoing vehicles, without taking any precaution or putting on parking lights. The rider of the motorcycle though applied brake, but could not control and dashed to the hind portion of the tempo trax, which resulted in the accident. Due to the accident, the petitioner sustained grievious injuries. He was admitted to Sri J.G. Co-operative Hospital, Ghataprabha as an inpatient from 13^th April to 09^th May, 2016 and undergone operation. Further, it is stated as to the medical expenses and loss of future earning due to disability and sought for compensation.

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Respondents appeared before the Tribunal and filed their objections. Respondent No.1 has denied the cause of accident, nature of injuries, disability, age, and avocation as also the income of the petitioner. Further it is contended that at the accident spot he has parked his vehicle towards extreme left side of the road with parking lights on and got down from the vehicle to attend nature call and at that time the petitioner came in a high speed, lost control and dashed to the rear side of the tempo trax which resulted in the accident. It is stated

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that the petitioner is solely responsible for the accident. The police have filed ‘A’ and ‘B’ charge sheet against him and the petitioner. The vehicle has been duly insured and therefore, the liability, if any, may be saddled on the respondent No.2

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The substance of the statement of objections of Respondent No.2-Insurer is that, the accident occurred due to the rash and negligence on the part of the petitioner. Hence, ‘B’ Charge sheet is filed against the petitioner for the offence punishable under Section 278, 338 of Indian Penal Code. Therefore, the petition is not maintainable. It is also contended that the petitioner was not having valid driving licence. Though it is admitted that the offending vehicle was insured, but the liability is subject to policy conditions. It is further contended that the insurer of the petitioner’s vehicle is not impleaded. Hence, the petition is bad for non-joinder of necessary parties. On all these grounds it is sought for dismissal of claim petition. Based on pleadings, the Tribunal has framed appropriate issues.

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To prove the case of the petitioner, the petitioner examined himself as PW1 and two doctors were examined as

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PWs.2 and 3 and seventeen documents were marked as Exhibits P1 to P17. On closure of petitioners’ side evidence, Respondent No.1 got examined as RW1 and marked six documents as Exhibits R1 to R6. Having heard the arguments on both sides, Tribunal allowed the petition in part and assessed the negligence on the part of the petitioner and driver of the offending tempo trax in the ratio of 30:70 and awarded compensation of Rs.4,44,265/- with interest at 6% per annum from the date of petition till realisation. Being aggrieved by the said judgment of the Tribunal, the Insurance Company has preferred MFA No.101983 of 2020 questioning its liability at the rate of 70% and also the quantum of compensation. Being not satisfied with the amount of compensation awarded by the Tribunal, the claimant has preferred MFA No.102303 of 2020 seeking enhancement of compensation, so also, questioning as to assessment of negligence on the part of the rider of motorcycle at the rate of 30%.

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Sri S.S.Koliwad, learned counsel appearing for the appellant-Insurance Company, would submit that the Tribunal committed an error on fact that RW1-Mehaboob Mulla stated that on the date of accident, he had parked his tempo trax

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towards extreme left side of the road by turning on the parking lights and got down from the vehicle to attend nature call and at that time, petitioner came in a rash and negligent manner and dashed to the hind portion of the tempo trax and caused accident. The petitioner is responsible for the cause of the accident. It is submitted that after due investigation, Police have filed ‘B’ charge sheet against the petitioner for the offence punishable under Section 279 and 338 of the Indian Penal Code, whereas ‘A’ charge sheet is filed against the RW1-owner of the tempo trax only for the offence punishable under Section 283 of Indian Penal Code. It shows that the entire negligence for the cause of accident is only on the petitioner. Hence, the Judgment and Award passed by the Tribunal is liable to be set aside. He further submits that the Tribunal has not properly appreciated the evidence on record and fixed the liability on the Insurance Company at the rate of 70% which is arbitrary and perverse. Further, the Tribunal, without observing the medical record that the Doctor has assessed the liability at 35% to the particular limb, had taken the permanent physical disability to the whole body at 17%, which is on the higher side. On all these grounds sought for allowing the appeal.

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Sri Vittal S. Teli, learned counsel appearing for the appellant-petitioner, would submit that the Tribunal has committed an error in assessing negligence of 30% towards contributory negligence on the part of the appellant. The Tribunal ought to have considered that as per charge sheet, the driver of the tempo trax had parked the vehicle on the road obstructing the ongoing vehicles without any signal or switching on the indicators, which has resulted in the accident. Hence, the entire negligence is to be attributed on the driver of the offending tempo trax. His further submission is that the Tribunal ought to have considered that the respondents have not denied the accident. The respondent No.1-driver of the tempo trax who has been examined has stated that he had parked the vehicle at the left side of the road, but had covered almost one-forth of the road and the respondents have not led any evidence to show that the rider of motorcycle was negligent. He further submits that the Tribunal erred in not considering that the appellant was earning Rs.20,000/- per month by doing milk vending business and also agriculture work. The appellant has produced RTCs of survey No.93/1, 130/B-1 of Jangatihal village as per Exhibits P14 and P15; he

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was going sugarcane in the said land. The petitioner has obtained sales certificate from Bagewadi Sugar Factory and is still a member of the sugar factory. Hence, he submits that the Tribunal ought to have considered the same and assessed the income of the petitioner at Rs.20,000/- per month. Further, the Tribunal has committed an error in not considering the fact that the petitioner has suffered grievous injuries due to the accident as per Exhibit P6. Though PW2-Doctor assessed the permanent physical disability to the extent of 35% to the left lower limb, the Tribunal, instead of taking the disability at 100% to the whole body, has considered only to the extent of 10% which is an error. It is also submitted that the petitioner is suffering with various deformities and walks limping and also cannot walk without support. Learned Counsel further submits that the Tribunal has awarded meager compensation towards loss of amenities and other heads. On all these grounds, he sought to allow the appeal by enhancing the compensation.

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Having heard the arguments on both sides and perusal of papers, so also, the original records, the following points would arise for our consideration:

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NC: 2024:KHC-D:8047-DB MFA No. 101983 of 2020 C/W MFA No. 102303 of 2020

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Whether the Tribunal is justified in assessing the contributory negligence on the petitioner at the rate of 30%?

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Whether the Tribunal is justified in assessing the functional disability of the petitioner at the rate of 17% to the whole body?

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Whether the compensation awarded by the Tribunal requires interference by this Court?

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What order or award?

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Our answer to the above points is as follows:

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Point No.1: in the affirmative;

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Point No.2: in the negative;

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Point No.3: partly in the affirmative;

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Point No.4: as per final order

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Regarding Point No.1:

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We have carefully examined the material placed before this Court. It is the case of the claimant that on 13^th

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April, 2016 when the claimant was proceeding on his motorcycle bearing Registration No.KA-49/S-8942 towards Ghataprabha side on Hukkeri-Ghataprabha Road, at that time,

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the driver of Toofan Tempo Trax No.KA-23/A-6521 which was proceeding ahead of his motorcycle, had negligently parked it on the middle of the road causing inconvenience to the ongoing vehicles, without taking any precaution or putting on parking lights. The petitioner, though applied brakes, could not control and dashed to the hind portion of the tempo trax, which resulted in the accident. Due to the accident, the petitioner sustained grievous injuries. To prove the case, the petitioner himself got examined as PW1 and examined two doctors as PWs2 and 3 and marked seventeen documents as Exhibits P1 to P17. Respondents contended that the accident occurred due

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to sole negligence on the part of the petitioner. To substantiate the same, the driver of tempo trax examined himself as RW1 and six documents were marked as Exhibits R1 to R6. A perusal of materials placed before this Court makes it clear that on the basis of the complaint filed by Goudappa Dundappa Patil, Hukkeri police registered a case in Crime No.127 of 2016 against Mehaboob Abdul Munaf-driver of the tempo trax, for commission of offence punishable under Section 279 and 338 of Indian Penal Code and submitted First Information Report to the Court. Thereafter, the police visited the spot, conducted

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spot panchanama, prepared rough sketch in the presence of panchas, obtained motor vehicle report, wound certificate, recorded statement of witnesses and submitted ‘A’ charge sheet against the driver of the tempo trax for offence punishable under Section 283 of Indian Penal Code and filed ‘B’ charge sheet against Sunil Kadagouda Patil-rider of motorcycle for commission of offence punishable under Section 279 and 338 of Indian Penal Code. Case is also registered in CC No.305 of 2016 on the file of JMFC, Hukkeri. Both parties have not disputed the charge sheet submitted by the Investigating Officer against the driver of offending tempo trax and also against the rider of motorcycle.

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It is settled principle of law that mere filing of charge sheet by the police is not sufficient to prove the negligence. It is the duty of the Tribunal to independently assess the evidence to decide the factum of negligence. On perusal of material placed before this Court, it is abundantly clear that at the time of accident, the respondent No.1 driver of the tempo trax had parked the same on the road and got down to attend the nature call and at that time, the petitioner, who was coming on the same way, dashed to the rear side of the tempo trax and

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that resulted in the accident. Respondent No.1-driver of tempo trax admitted that he had parked his vehicle on the left side of the road. Exhibit P3-panchanama and spot sketch Exhibit P4 would clearly indicate that Hukkeri-Ghataprabha road is 30 feet wide. Accident had occurred just six feet away from the northern edge of the road. The respondent has parked his vehicle not on the extreme left side of the kachha road as asserted by him in his evidence, but has parked on the road covering about six feet of road. The evidence would clearly indicate that the respondent No.1-driver of the tempo tax parked the offending vehicle on the road covering almost onefourth of the road. It is admitted fact that the road is a single road; the parking of vehicle on the road covering substantial part of the asphalt road would cause obstruction for free flow of traffic. The charge sheet reveals that parking lights of tempo trax were not switched on by the respondent No.1. Hence, there is gross negligence on the part of respondent No.1. Had respondent No.1 not parked his vehicle on the road, definitely the accident would not have occurred. At the same time, having considered the evidence on record, it would clearly show that the petitioner was also negligent. Had he taken

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appropriate care and caution, he definitely could have avoided the accident. Though the road was straight, he could not stop his motorcycle and had dashed to the tempo trax, would indicate that he was riding the motorcycle rashly and negligently. Considering the negligent act on the part of both the rider as also on the part of driver of the tempo trax, the Investigating Officer has submitted charge sheet against the driver of the tempo trax for commission of offence punishable under Section 283 of Indian Penal Code and against the rider of motorcycle for the offence punishable under Section 279 and 338 of Indian Penal Code. It is appropriate to mention here as to the provisions of Section 122 of Motor Vehicles Act, 1988 which contemplates that no motor vehicle should be left on the public road in a dangerous position or in such a manner so as to cause inconvenience to the other road users or abandoned.

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Considering the evidence placed before the Tribunal, the Tribunal has properly appreciated the evidence in accordance with law and facts and had rightly held that though there was negligence on the part of the petitioner, the accident is the result of negligence on the part of the respondent No.1 driver of the tempo trax for having parked the same on the road and

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therefore, the contributory negligence on the part of the driver of tempo trax is greater than the contributory negligence on the part of petitioner. Accordingly, the Tribunal assessed the negligence against the driver of tempo trax and the petitioner respectively in the ratio of 70:30. On reconsideration, reappreciation and re-examination of the entire evidence on record, we do not find any illegality/legal infirmity in assessing the contributory negligence at 30% on the petitioner and 70% on the driver of the tempo trax. Hence, we answer point No.1 in the negative.

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Regarding Point No.2:

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The learned counsel appearing for the Insurance Company submits that the Tribunal has committed an error in assessing the functional disability of the petitoner to the whole body at 17% though the Doctor has opined the disability at 35% to the left lower limb. PW2-Doctor has assessed the permanent physical disability of the petitioner to the extent of 35% in respect of left limb as per ALIMCO and Government of India Notification. The Tribunal has assessed the permanent physical disability with regard to future earning capacity at

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17%, which is one-third of the disability assessed by PW2Doctor. Considering the nature of injuries, we are of view that it is just and proper to assess the permanent physical disability of the petitioner at 12%. Hence answer point No.2 in the negative.

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Regarding Point No.3:

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With regard to the compensation awarded is concerned, the Tribunal, on the basis of Exhibit-P6 Aadhar card, has rightly assessed that the petitioner was aged 40 as on the date of accident. With regard to the income of the petitioner is concerned, PW1 has asserted that prior to accident, the petitioner was doing agriculture work and also having milk vending business and thereby he was earning Rs.20,000/- per month. To substantiate this, the petitioner has produced Exhibits P14 and P15 RTC extracts pertaining to lands in Survey No.93/1, 130/B-1 of Jangatihal village, which are standing in the name of the father of the petitioner. The Tribunal has also observed that petitioner is an agriculturist and he grows sugar cane in his land which is not disputed by the respondents. However, since the petitioner has not produced any material to

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show as to his income, the Tribunal has assessed the notional income at Rs.7,000/- per month. The same is not in consonance with the chart prepared by the Karnataka State Legal Services Authority. According to the chart, the notional income for the accidents of the year 2016, the notional monthly income is Rs.8,750/-, and the same is taken in this case also.

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In view of the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, the appropriate multiplier commensurate to the age of the petitioner would be 15 and the same is taken. Accordingly, the loss of future earning comes to Rs.1,89,000/(Rs.8,750/- x 12 x 15 x 12%). The Tribunal has awarded compensation of Rs.40,000/- towards pain and suffering; Rs.8,000/- towards food and nourishment; Rs.3,000/- towards attendant charges; Rs.3,000/- towards travelling expenses; Rs.21,000/- towards los of earning during laid up period; and Rs.40,000/- towards loss of amenities in life, which according to us when compared to the injury sustained, treatment taken and pain and agony underwent, is on the lower side. Having examined the material placed by the petitioner and considering

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the injuries, disability assessed by the medical officer, we are of

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the opinion that it is just and proper to modify the compensation as follows:

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Sl.No.	Head	Amount(in Rs.)
1.	Loss of future earning	1,89,000.00
2.	Medical Expenses (as awarded by the Tribunal)	90,065.00
3.	Future Medical Expenses (as awarded by the Tribunal)	25,000.00
4.	Pain and suffering	60,000.00
5.	Food and nourishment	20,000.00
6.	Attendant charges	10,000.00
7.	Travelling expenses	10,000.00
8.	Loss of earning during laid up period	26,250.00
9.	Loss of amenities	60,000.00
	Total	4,90,315.00

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Accordingly, we answer point No.2 partly in the affirmative.

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Regarding Point No.4:

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For the aforesaid reasons and discussion, we proceed

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to pass the following:

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O R D E R

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Both the appeals are allowed in part;

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Judgment and Award dated 08^th November, 2019 passed in MVC No.622 of 2018 by the IV Additional District Judge and Motor Accident

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NC: 2024:KHC-D:8047-DB MFA No. 101983 of 2020 C/W MFA No. 102303 of 2020

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Claims Tribunal-V, Belagavi is modified holding that the claimant is entitled for compensation of Rs.4,90,315/- as against Rs.4,44,265/- awarded by the Tribunal;

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The enhanced compensation carries interest at the rate of 6% per annum from the date of petition till realisation;

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The Insurance Company shall satisfy the award within a period of sixty days from the date of receipt of copy of this judgment;

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Amount in deposit if any, be transmitted to the Tribunal forthwith;

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Draw award accordingly;

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Registry is directed to send the copy of this judgment along with the trial court records to the concerned court forthwith for onward disbursal of award amount to the petitioner.

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Sd/JUDGE

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Sd/JUDGE

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LNN List No.: 1 Sl No.: 1

The Divisional Manager v. Sunil S/O.Kadagouda Patil

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Sunil S/O.Kadagouda Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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