Sri. Venkatesh Vs Sri Shashidhar v

SRI. VENKATESH, S/O VENKATAPPA AGED ABOUT 48 YEARS, R/O GALAPPA BUILDING, NO.20/19, NEAR OLD GOVERNMENT SCHOOL, KUMBALAGODU, MYSORE ROAD, BENGALURU – 560 050.

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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NOW PRESENTLY AT NO.39, TAGHACHAGUPPE, KUMBALAGODU POST, KENGERI HOBLI, MYSORE ROAD, BENGALURU – 560 074.

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…APPELLANT

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(BY SRI. ANAND BEERANNAVAR., ADVOCATE)

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AND:

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SRI. SHASHIDHAR V, S/O VENKATESH.R AGED ABOUT 22 YEARS, RIDER OF THE VEHICLE, HONDA ACTIVE BEARING

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HC-KAR

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REG.NO.KA-02-JC-5726 & INSURANCE HOLDER).

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SRI.VENKATESH.R., S/O LATE MUNIYAPPA, AGED ABOUT 50 YEARS, BOTH R/AT NO.672, 3^RD CROSS, BEHIND SHANTHIDHAMA SCHOOL, BYRASWESHWARA NAGAR, SUNKADAKATTE, BENGALURU – 560 091. (RC OWNER OF HONDA ACTIVE BEARING REG.NO.KA-02-JG-5726 & INSURANCE HOLDER).

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THE REGIONAL MANAGER, M/S. NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE AT NO.202, BRIGADE PLAZA, NORTH WING, 2^ND FLOOR, SUBEDAR CHATRAM ROAD, ANANDRAO CIRCLE, BENGALURU – 560 009. INSURER OF HONDA ACTIVA BEARING REG.NO.KA-02-JG-5746 VALID FROM 25/01/2016 TO MIDNIGHT 24.01.2017.

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…RESPONDENTS

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(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R3; NOTICE TO R1 IS DEEMED SERVICE VIDE ORDER

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DATED 18.11.2023;

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SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT

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VIDE ORDER DATED 22.02.2024)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 20.06.2019 PASSED IN MVC NO.4521/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH-16), PARTLY

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HC-KAR

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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 8578/2019:

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BETWEEN:

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THE REGIONAL MANAGER, M/S. NEW INDIA ASSURANCE COMPANY LTD., REGIONAL OFFICE AT NO.202, BRIGADE PLAZA, NORTH WIND, 2^ND FLOOR, SUBEDAR CHATRAM ROAD, ANNADRAO CIRCLE, BENGALURU – 560 009.

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...APPELLANT

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(BY SMT. MANJULA NEMICHANDRA TEJASWI., ADVOCATE)

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AND:

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SRI. VENKATESH, S/O VENKATAPPA, AGED ABOUT 48 YEARS, R/O GALAPPA BUILDING, NO.20/19, NEAR OLD GOVT. SCHOOL, KUMBALAGODU, MYSORE ROAD, BENGALURU – 560 060.

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SRI. SHASHIDHAR V., S/O VENKATESH R, AGED ABOUT 22 YEARS, RIDER OF HONDA ACTIVA, BEARING NO.KA-02-JG-5746.

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SRI. VENKATESH R., S/O LATE MUNIYAPPA, AGED ABOUT 50 YEARS, BOTH 2^ND AND 3^RD RESPONDENTS ARE RESIDENTS OF NO.672, ERD CROSS, BEHIND SHANTHIDHAMA SCHOOL, BYRAWESHWARA NAGAR,

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HC-KAR

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SUNKADAKATTE, BENGALURU – 560 091. (R.C.ONWER OF HONDA ACTIVA BEARING NO.KA-02-JG-5746).

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...RESPONDENTS

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(BY SRI. ANAND BEERANNAVAR., ADVOCATE FOR R1; R2 AND R3 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.06.2019 PASSED IN MVC NO.4521/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-16), AWARDING COMPENSATION OF RS.81,500/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL REALISATION.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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Both the appeals are filed under Section 173(1) of

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the Motor Vehicles Act, 1988¹ by the claimants challenging the judgment and award dated 20.06.2019 passed in M.V.C.No.4521/2017 by the X Additional Small Causes

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Judge, Bengaluru (SCCH-16)² . Hence, both the appeals are together taken up for consideration.

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1 Hereinafter referred to as ‘M.V. Act’

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2 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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For the sake of convenience, the parties herein

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are referred as per their ranking before the Tribunal.

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The claim petition was filed claiming

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compensation for the injuries sustained in an accident, which occurred on 13.08.2016, whereunder, it was the

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case of the claimant that when he was riding his motorcycle near 18^th cross road of Rajeevnagar, at that time, another scooter being driven by its rider came in a rash and negligent manner from Sunkadakatte and hit the vehicle of the claimant, thereby causing the accident in question, wherein the claimant sustained grievous injuries. The rider, owner and insurer of the offending scooter were arrayed as respondent Nos.1 to 3 respectively, before the Tribunal. The rider and owner of the scooter, i.e., respondent Nos.1 and 2 before the Tribunal entered appearance through their counsel and filed common statement of objections. The insurer of the offending scooter filed a separate statement of objections.

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The owner and rider of the offending scooter in

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their statement of objections denied the case putforth by the claimants regarding the manner of occurrence of the accident and further, specifically contended that the offending scooter was not involved in the accident. That the accident was caused due to the fault of the claimant himself. It is further averred that the offending scooter was duly insured with the third respondent and that the compensation, if any, is liable to be paid by the insurer.

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The third respondent/Insurer in its statement of objections has specifically contended that the rider of the insured scooter did not have a valid driving license authorizing him to ride the scooter at the time of the accident.

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The claimant examined himself as PW-1. Exs.P1 to P13 were marked in evidence. The representative of the Insurer was examined as RW-1. Exs.R1 to R9 were marked in evidence. The Tribunal, by

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its judgment and award dated 20.06.2019 recorded a

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finding both the claimant who was the rider of the motorcycle, as well as the rider of the offending scooter were negligent to the extent of 50% each in causing the accident in question. With regard to liability, the Tribunal

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rejected the contention of the insurer and held that the insurer did not prove that the rider of the offending scooter did not have a valid and effective driving license to drive the offending scooter. The Tribunal has assessed the total compensation as 1,62,745/- and having regard to the finding regarding negligence, has held that the claimant is entitled to a total compensation of 81,500/-

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together with interest at 9% per annum. Being aggrieved, the claimant has preferred M.F.A.No.8385/2019 and the insurer has preferred M.F.A.No.8578/2019.

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Heard submissions of the learned counsel,

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Shri.Anand Beerannavar appearing for the claimant, learned counsel, Shri.S.V.Hegde Mulkhand, appearing for Respondent No.3 in M.F.A.No.8385/2019-Insurer, and

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HC-KAR

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learned counsel, Smt.Manjula Tejaswi appearing for the appellant in M.F.A.No.8578/2019-Insurer.

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It is the vehement contention of the learned

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counsel appearing for the claimant that the Tribunal erred in recording a finding that the claimant was also negligent to the extent of 50% in causing the accident in question, by considering the sketch (Ex.P4), without adequately appreciating the manner of the occurrence of the accident and the fact that the police authorities have filed a chargesheet against the rider of the offending scooter. It is further contended that the quantum of compensation awarded is on the lower side.

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Per contra, learned counsel for the Insurer in support of the contentions putforth in the appeal filed by the Insurer contends that the finding of the Tribunal fastening the liability to pay the compensation on the Insurer along with the owner is erroneous, having regard to the fact that the Insurer has adequately proved before the Tribunal that the rider of the offending scooter did not

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hold a valid and effective license to drive the scooter. It is

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contended that the Tribunal has not adequately appreciated the fact that even the police authorities have charge-sheeted the rider of the scooter under the relevant statutory provisions, even on the ground that he was not holding a driving license as on date of the accident.

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Opposing the relief sought for by the claimant regarding enhancement of compensation, it is contended by the learned counsel for the insurer that the Doctor not having been examined, the Tribunal has awarded adequate compensation under the relevant heads.

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The submissions of the learned counsels have been considered and the material on record, including the records of the Tribunal, have been perused.

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The questions that arise for consideration are:

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i) Whether the finding of the Tribunal regarding negligence is erroneous and liable to be interfered with?

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ii) Whether the quantum of compensation awarded by the Tribunal is erroneous and liable to be interfered with?

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iii) Whether the finding of liability recorded by the Tribunal is just and proper?

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Re. question No.(i):

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In the claim petition, the claimant has averred that when he was riding his motorcycle through the 18^th cross, Rajeevnagar, Sunkadakatte heading from west to east at 20^th cross slowly, cautiously, the rider of the offending scooter coming from Sunkadakatte, Kebballi Main Road towards Annapoorneshwari Nagar, rode the vehicle at a high speed, in a rash and negligent manner and hit the motorcycle of the claimant. In the statement of objections, the rider and owner of the offending scooter has averred that the offending scooter was not involved with the accident and the injuries were caused by the claimant by himself by his own fault while riding his motorcycle. It is further contended that the police

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authorities have falsely filed the charge-sheet against the

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rider of the offending scooter.

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The claimant examined himself as PW-1 and

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reiterated the averments made in the claim petition with regard to the occurrence of the accident. The complaint (Ex.P1), charge-sheet (Ex.P3), sketch (Ex.P4) and IMV report (Ex.P5) have been produced by the claimants. It is forthcoming that the police authorities have filed the charge-sheet against the rider of the offending scooter.

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It is evident from the sketch (Ex.P4) that the offending scooter was proceeding on the main road from the north to south direction. The main road is 24 feet wide. The claimant was riding his motorcycle on the cross road from east to west direction, proceeding on the 18^th cross road, was in the process of crossing the main road from east to west in order to continue on the 20^th cross road. It is evident that the accident occurred when the claimant was attempting to cross the main road by riding his motorcycle and in the process of crossing the main

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road, the offending scooter, which was proceeding from

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north to south on the main road hit the motorcycle which the claimant was riding.

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The Tribunal while considering the aspect of

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negligence has held as follows:

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“10. Therefore, at this juncture I have perused the sketch (Ex.P4). This document depicts the scene of the occurrence. It is visible from the sketch that the accident has happened on Kebbehalla main road. Near the accident spot there are two cross roads. The motorcycle ridden by the first respondent was coming on the main road to go towards Annapoorneshwari Nagara. At the same time, the motorcycle ridden by the petitioner came from Rajeevnagara and entered the main road. Since the petitioner wanted to enter on the main road from the cross road, he should have followed the halt and proceed rule. On seeing the offending vehicle coming nearby, he should have stopped his vehicle and thereafter, proceeded further. But, he has not done so.

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11. Likewise on seeing the motorcycle ridden by the petitioner entering on the main road, the rider of the offending vehicle should have slowed down the speed. If he had done so, the accident could have been avoided. Thus, it is clear from the sketch that the accident has happened due to the negligence of the rider of the offending vehicle and the petitioner. Hence, I am of the opinion that the charge sheet filed by the investigating officer is not correct. As I said the rider of the offending vehicle and the petitioner are the architects of the accident. However, having regard to the position of the accident spot and the manner in which the accident taken place, I would say that the petitioner is guilty of contributory negligence to the extent of 50% and the remaining is attributed to the

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first respondent. With this observation, I answer issue No.1 partly in the affirmative.”

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It is clear from the aforementioned that the

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Tribunal has noticed that although a charge-sheet has been filed against the offending scooter, the Tribunal is not bound by the same. Although the claimant (PW-1) has deposed as to the manner of the occurrence of the accident and has produced the necessary police documents as noticed above, it is clear and forthcoming from the sketch (Ex.P4) that the accident occurred when the claimant was riding his motorcycle and crossing the main road. The accident has occurred to the right hand portion of the road, in which the offending scooter was proceeding which indicates that the rider of the scooter had attempted to avoid the accident. It is further evident that after entering the main road, if the claimant had remained on the left side of the main road, he would have avoided the accident. On the contrary, the claimant

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attempted to cross the main road while continuing to ride

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his motorcycle, which has resulted in the accident.

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Although it is the vehement contention of the

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learned counsel for the claimant that, had the rider of the offending scooter stopped the vehicle, the accident could have been prevented, having noticed the fact that it was the claimant who was entering the main road, it was the claimant who was required to exercise due care and caution while crossing the main road on his motor cycle.

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In view of the aforementioned, the Tribunal was justified in recording a finding that the claimant as well as the rider of the offending scooter were responsible to the extent of 50% each in causing the accident in question. The claimant has failed in demonstrating that the finding recorded by the Tribunal is erroneous and liable to be interfered with by this Court in the present appeal. Hence, question No.(i) framed for consideration is answered in 'negative'.

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Re. question No.(ii):

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The claimant was aged 43 years as on the date of the accident i.e., 13.08.2016. It was averred that the

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claimant was running his own business and earning `30,000/- per month. The income tax returns for the assessment year 2012-13 (Ex.P11) and the statement of audit report for the same year (Ex.P12) have been produced by the claimant with regard to the income as also the registration certificate (Ex.P10). With regard to his income, from Ex.P12, it is forthcoming that the entity in which the claimant was stated to be carrying on business is a partnership firm and the name of the partners are shown as “Venkatesh” and “Nagarathna”. It is stated that the partnership firm consists of the claimant

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and his wife. Although learned counsel for the claimant vehemently contends that the Tribunal has erred in not assessing the income of the claimant despite the relevant material in that regard having been produced, as has been noticed by the Tribunal, the claimant has produced the

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income tax returns for the assessment year 2012-13, whereas, the accident occurred on 13.08.2016. No documents have been produced by the claimant with regard to the income that was earned as on the date of the accident.

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The Wound Certificate (Ex.P6) and Discharge Summary (Ex.P7) discloses that the claimant has sustained dislocation of the right clavicular bone. That the claimant underwent a surgery for treatment of the injuries to the shoulder and was treated as an inpatient for a period of five days. However, no Doctor has been examined to prove the disability.

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In view of the aforementioned, the

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compensation is re-assessed as follows:

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22.1 The compensation awarded by the Tribunal towards pain and suffering is a sum of 40,000/- and amenities in a sum of 60,000/- is just and proper and not interfered with;

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22.2 The Tribunal has awarded a sum of `6,000/- towards attendant charges, food and conveyance expenses. Having regard to the nature

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of the injuries sustained and the period of treatment, the said compensation is re-assessed as `10,000/-;

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22.3 The Tribunal has awarded medical

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expenses in a sum of 56,745/-, which is as per the medical bills, which is just and proper and the same is rounded off as 57,000/-.

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22.4 No compensation has been awarded towards loss of income during laid up period. Although it is the vehement contention of the learned counsel for the Insurer that there is no material to demonstrate that the business run by

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the claimant has been closed or his earning capacity in any manner has been effected, having regard to the fact that the claimant has sustained fracture to the shoulder joint, it is clear that he

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would not have been able to carry on his work till

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he recovers from the injuries. For the said purpose, in the absence of any other material on record, the income of the claimant is re-assessed

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as 10,000/- per month and the laid up period is assessed as two months. Accordingly, compensation of 20,000/- is awarded towards the same;

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Although it is the vehement contention of the learned counsel for the claimant that compensation has not been awarded towards disability, in the absence of the claimant examining any Doctor, the Tribunal was justified in not awarding any compensation towards the same.

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Hence, the compensation is re-assessed as follows:

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Sl. No.	Heads	Amount awarded bythe Tribunal(`)	Amount awarded bythis Court(`)
1.	painand suffering	40000.00	40000.00
2.	Attendant charges, extra nutritious food and conveyance expensesmedical expenses	6000.00	10000.00
3.	Loss of income during laid up period	0.00	20000.00
4.	Loss of amenities	60000.00	60000.00
5	Medicalexpenses	56745.00	57000.00
6	Loss of future income due to disability	0.00	0.00
7	Future medical expensesq	0.00	0.00
	Total	162745.00	187000.00

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Hence, the claimant is entitled for enhanced compensation of (1,87,000/– 1,62,745/-) 24,255/rounded off to 25,000/-.

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Having regard to the finding regarding 'negligence', the claimant is entitled to 50% of the compensation re-assessed by this Court and accordingly, entitled to enhanced compensation of `12,500/-.

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The Tribunal has awarded interest at 9% per annum. Taking judicial notice of the interest awarded towards Fixed Deposits, the interest is awarded as 7% per

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annum. Hence, question no.(ii) is answered in the

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affirmative .

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Re. q uestion No.(iii):

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The third respondent/Insurer has taken a specific contention that the rider of the offending scooter did not have a valid driving license at the time of the occurrence of the accident. In that regard, the representative of the Insurer has been examined as RW-1 and the notices issued to the rider and owner of the vehicle have been marked as Exs.R3 to R9, which demonstrate that the Insurer has notified the rider and owner of the insured vehicle to place the relevant documents on record. Although the rider and owner of the vehicle have been represented before the Tribunal and statement of objections has been filed by them, they have failed to produce the license copy of respondent No.1 who was the rider of the offending scooter. The police authorities have also charge-sheeted the rider for not having driving license. The Tribunal, by considering the

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same has recorded a finding that since the Investigating Officer or the RTO has not been examined by the Insurer, the Insurer is liable to pay the compensation awarded. The said finding is erroneous, having regard to the fact that the Insurer having denied that the rider of the offending scooter had a license at the time of the occurrence of the accident, the onus was on the rider/ owner of the offending scooter to produce the license.

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Having regard to the aforementioned, the finding of the Tribunal fastening the liability on the Insurer to pay the compensation jointly along with the owner is erroneous and liable to be set aside. In view of the judgment of the Hon'ble Supreme Court in the case of

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NATIONAL INSURANCE CO. LTD Vs. SWARAN SINGH &

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OTHERS³ , it is required to be held that the Insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle who was arrayed as Respondent No.2 before the Tribunal. Hence, question

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3 (2004) 3 SCC 297

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No.(iii) framed for consideration is answered partly in the

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affirmative.

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In view of the aforementioned, the following:

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ORDER

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i) Both the appeals are partly allowed;

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ii) The judgment and award dated 20.06.2019 passed in M.V.C.No.4521/2017 on the file of X Additional Judge, Court of Small Causes, Bengaluru (SCCH-16) is modified to the extent of holding that the claimant is entitled to * enhanced compensation of `12,500/- together with interest at 7% per annum from the date of petition till the date of payment;

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iii) The Insurer (who is the appellant in M.F.A.No.8578/2019, third respondent before the Tribunal) is liable to pay the said compensation awarded, with liberty to recover the same from the owner of the vehicle (Respondent No.2 before the Tribunal);

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