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2017 DIGILAW 1180 (KAR)

G. Jeelan S/o Mabusab v. Babu S/o Abdul Nabi

2017-09-01

H.B.PRABHAKARA SASTRY

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JUDGMENT : The present appellant was the claimant before the Court of Principal Civil Judge (Sr.Dn) & JMFC-Cum-Member, IV-Motor Accident Claims Tribunal, Hospet (henceforth referred to as the ‘Tribunal’ for brevity), in MVC No.755/2008, whose claim petition under Section 166 of the Motor Vehicles Act, 1988 was allowed in part by the impugned judgment and award dated 11.02.2009. 2. In the said claim petition he had claimed a compensation of a sum of Rs.3,80,000/- from the respondents therein towards the injuries said to have been sustained by him in the road traffic accident said to have been occurred on 12.03.2008. He had arrayed the driver, owner and the insurer of the alleged offending vehicle bearing Reg.No.MH-06-AF-0302 as respondents No.1, 2 and 3 respectively in the Tribunal. The Tribunal by the impugned judgment and award has allowed the said petition in part awarding a compensation of a sum of Rs.4,555/- to the claimant payable by the respondents No.1 and 2 jointly and severally. The said quantum was 50% of the total awarded amount of Rs.9,110. The Tribunal observing that, there is contributory negligence on the part of the claimant to an extent of 50%, has entitled him to get the said sum of Rs.4,555/- only. It has exonerated the respondent No.3-the insurer from its liability. It is the said judgment and award the claimant has challenged in this appeal. 3. The main contention of the appellant as well as the argument of the learned counsel for the appellant is that, the Tribunal has not appreciated the evidence and materials placed before it in its proper perspective, which has resulted in it giving a finding that there was contributory negligence on the part of the claimant. Further, it is also the contention of the appellant that the quantum of compensation awarded is far below than the reasonable amount. As such, the same deserves to be enhanced reasonably. 4. Learned counsel for the respondent-Insurance Company in his argument vehemently submitted that the Tribunal after due appreciation of the materials placed before it, has arrived at a proper conclusion in exonerating the insurer from its liability. As such, there are no grounds to interfere in the said judgment and award. 5. 4. Learned counsel for the respondent-Insurance Company in his argument vehemently submitted that the Tribunal after due appreciation of the materials placed before it, has arrived at a proper conclusion in exonerating the insurer from its liability. As such, there are no grounds to interfere in the said judgment and award. 5. Since it is the claimant’s appeal seeking enhancement of compensation as well the modification of the judgment under appeal in the form of fixation of liability upon the respondent No.3-Insurance Company, the occurrence of the accident on the date, time and place as alleged by the claimant is not in dispute. As such, those questions need not be reiterated in this appeal. 6. Regarding the alleged contributory negligence on the part of the claimant is concerned, the Tribunal after noticing that the alleged accident was between the motorcycle and motorcar and that the width of the road, where the accident has taken place was 20 feet and the place of the accident was shown to be in the middle of the road, has arrived at a conclusion that the motorcyclist had not given free way to the car, as such, he was also a contributor to the accident. However, the Tribunal failed to notice the fact that the alleged concept of contributory negligence was not confronted in the cross-examination of the claimant, who was examined as PW.1 in the Tribunal. Except making the suggestion that the accident has occurred at the fault of the rider of the motorcycle, no suggestion regarding either about the width of the road or the rider not giving way to the motorcar nor even about the contributory negligence was in any form made to the witness. As such, in the absence of any specific defence in that regard being taken by the respondents and no evidence on the point in the evidence of any of the witnesses, the finding of the Tribunal based upon a single isolated document, which is Ex.P.3 was not called for. Even after taking the very same document at Ex.P.3 for consideration, still it cannot be ignored of the fact that, on the other side of the motorcyclist, the road was still open with an width of 10 feet. Even after taking the very same document at Ex.P.3 for consideration, still it cannot be ignored of the fact that, on the other side of the motorcyclist, the road was still open with an width of 10 feet. It is nobodies case that the motorcar could not pass through in such a width or that despite his horn or indicators the motorcyclist did not give him the way rather he dashed to the motorcar. As such, the reasoning given by the Tribunal that gravity of injuries sustained by the claimant as well as the width of the road would show that there was contributory negligence on the part of the rider of the motorcycle is not acceptable. On the contrary, the evidence of PW.1 which has withstood the cross-examination on the question of manner of occurrence of the accident and the documents, more particularly the copy of the charge sheet marked as Ex.P.2 shows that the occurrence of the accident was due to sole rash and negligent driving on the part of the driver of the alleged motorcar. 7. The second question is regarding the exoneration of the insurer from its liability. No doubt, the third respondent-Insurance Company in the Tribunal had taken a contention that the driver of the alleged offending vehicle-motorcar did not possess a valid driving licence. The Tribunal has failed to notice that, proving the said contention was on the part of the said insurer/respondent No.3, whereas the Tribunal in its finding has observed that it was the duty of the respondent No.1-the driver of the offending vehicle to produce a copy of the driving licence. As such, in the absence of non-production of copy of driving licence either by the driver or by the owner of the vehicle, an adverse inference was drawn by the Tribunal holding that the driver of the car did not possess a valid driving licence at the time of the accident. A mere voluntarily non-production of driving licence by the driver of the offending vehicle cannot lead an inference in motor vehicle claim matters, that the said driver did not possess a driving licence. It is worth to be noticed here that except taking such a defence in his written statement, the respondent did not choose to enter the witness box. A mere voluntarily non-production of driving licence by the driver of the offending vehicle cannot lead an inference in motor vehicle claim matters, that the said driver did not possess a driving licence. It is worth to be noticed here that except taking such a defence in his written statement, the respondent did not choose to enter the witness box. The insurer neither lead his evidence nor has produced any material to show that he had made reasonable minimum efforts to secure the details of the driving licence, if any and that his effort have shown that the driver of the offending vehicle did not possess a driving licence. The insurer not only failed to enter the witness box but also did not cause any notice served upon the respondents No.1 and 2, who were the driver and the owner of the alleged offending vehicle, summoning them to produce the details of the driving licence or to produce the copy of the same. In the absence of the insurer putting basic efforts in discharging his burden to prove that the driver of the offending vehicle did not possess a valid driving licence, merely because the said driver voluntarily did not produce his driving licence, it cannot be inferred that the said driver did not possess a valid driving licence. As such, the finding given by the Tribunal in that regard which has resulted in exonerating the insurer from its liability towards the claimant will not sustain. 8. Lastly, a perusal of the wound certificate at Ex.P.4 it goes to show that the claimant had sustained the following four injuries in the accident: 1. Abrasion over the left frontal eminance, measuring about 1x1 cm in size. 2. Abrasion over the middle part of the left side of the nose measuring about 1x1 cm in size. 3. Abrasion over the upper part of the left eye brow measuring about 5x2 cm in size. 4. Tenderness over the left side of the chest. 9. Admittedly, all those injuries were simple in nature. The Tribunal has awarded a compensation of a sum of Rs.8,000/- for all the injures put together. In addition to that it has awarded a sum of Rs.1,110/- towards ‘medical expenses’, which expenses were based on the actuals. 4. Tenderness over the left side of the chest. 9. Admittedly, all those injuries were simple in nature. The Tribunal has awarded a compensation of a sum of Rs.8,000/- for all the injures put together. In addition to that it has awarded a sum of Rs.1,110/- towards ‘medical expenses’, which expenses were based on the actuals. However, in the circumstances of the case and considering the nature of those four simple injuries the compensation awarded towards ‘pain and suffering’ deserves to be marginally enhanced to bring it to a reasonable amount. Thus, I enhance the said amount by another sum of Rs.3,000/- which is in addition to the existing sum of Rs.8,000/-. 10. Barring the said compensation, the claimant/appellant is not entitled for compensation or enhancement of compensation under any other heads. 11. Accordingly, I proceed to pass the following: ORDER : The appeal is allowed in part. The judgment and award passed by the Principal Civil Judge (Sr.Dn) & JMFC-Cum-Member, IV-Motor Accident Claims Tribunal, Hospet, in MVC No.755/2008 dated 11.02.2009, is modified to the extent that the apportionment of liability at 50% upon the claimant is set aside. Consequently, dismissal of the claim petition against the respondent No.3 is set aside. The quantum of compensation which was awarded in total at Rs.9,110/- is enhanced by a sum of Rs.3,000/- (Rupees Three Thousand Only), thus fixing the total compensation at Rs.12,110/- (Rupees Twelve Thousand One Hundred and Ten Only), which amount all the three respondents in the Court below are jointly and severally liable to pay to the claimant. The respondent No.3 being the insurer to deposit the awarded amount with awarded interest thereupon in the Tribunal within four weeks from the date of this order. The rest of the term of the impugned judgment and award regarding awarding of interest remains unaltered. Draw modified award accordingly.