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2019 DIGILAW 114 (KAR)

MAHADEV v. MURTAJSAB

2019-01-09

P.B.BAJANTHRI

body2019
JUDGMENT P.B. BAJANTHRI, J. 1. In these two appeals, the appellants have questioned the Judgment & award dated 28.10.2013 passed in MVC Nos.298/2012 & 299/2012 on the file of the Additional Senior Civil Judge and MACT No.VI, Jamkhandi (for short 'the MACT') on the issue of fastening liability of 50% negligence on the appellants and further they have sought for enhancement of the compensation. 2. Brief facts of the case are that, on 11.12.2011, at about 9 a.m. when the appellants were riding a unregistered & non-insured Yamaha bearing Chassis No.05F5TS-5007673 which met with an accident with cruiser vehicle bearing registration No.KA-28/M-9858, which is stated to have hit the unregistered vehicle of the appellants from the rare side, while the appellants were taking right turn towards Harshit petrol pump, on Jamkhandi Mudhol road. Due to the accident, both the appellants suffered injuries. They filed claim petitions. The MACT proceeded to award compensation of Rs.1,39,036/- to the appellant-Mahadev and Rs.1,17,698/- to appellant- Mallikarjun. 3. Learned counsel for the appellants has raised two issues namely, fastening 50% of contributory negligence on the part of appellants is illegal and they are entitle to enhanced compensation amount. The learned counsel for the appellants vehemently contended that, the MACT has not given weightage to the filing of the charge sheet on the driver of the cruiser so as to skip the contributory negligence on the part of the appellants. Thus, the MACT has committed an error in fastening the liability of 50% on the appellants. In respect of the said contention, the learned counsel for the appellants relied on Ex.P1 Complaint, Ex.P3-Sketch and Ex.P5-MVA report. It was further contended that, from the sketch it is crystal clear that, the accident took place on the middle of the road, even though on the left hand side, sufficient space was available to the cruiser driver to take his vehicle. Thus, there is a negligence on the part of the driver of the cruiser and not on the appellants. It was also contended that, no charge sheet has been filed against the appellants. On the other hand, charge sheet was filed on the driver of the cruiser. Therefore, fastening contributory negligence on the appellants is highly arbitrary and illegal. 4. Thus, there is a negligence on the part of the driver of the cruiser and not on the appellants. It was also contended that, no charge sheet has been filed against the appellants. On the other hand, charge sheet was filed on the driver of the cruiser. Therefore, fastening contributory negligence on the appellants is highly arbitrary and illegal. 4. It was further contended that, the question of fastening contributory negligence on the part of the pillion rider Mallikarjun to the extent of 50% may not be correct as he was a pillion rider. 5. Learned counsel for the appellant cited the following decisions relating to contributory negligence to the extent that, if the charge is not filed against the claimant in that event question of determining contributory negligence do not arise and if the charge sheet is filed against the driver of the offending vehicle, suffice that liability is on the Insurance Company. (a) Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co. Ltd., reported in, (2014) ACJ 627. (b) Kishan Gopal and another Vs. Lala and others, reported in, (2013) ACJ 2594. (c) Kiran Vs. Sajjan Singh and others, reported in, (2014) ACJ 2550. (d) Jiju Kuruvila & Ors Vs. Kunjujamma Mohan & Ors, in Civil Appeal Nos.4945-4946/2013, disposed of by the Hon'ble Supreme Court, on 02.07.2013. 6. Per contra, learned counsel for the respondent No.2 vehemently contended that, there is no infirmity or error committed by the MACT. On the other hand, the appellants claim should have been rejected at threshold with reference to the fact that, the appellants were riding the vehicle on the road which was un-registered, as well as non-insured. Therefore, the MACT has taken a lenient view in fastening the contributory negligence on the part of the appellants to the extent of 50% instead of 100%. Similarly, a very reasonable compensation has been granted to the appellants on various heads. Hence, no interference is called for. 7. Heard the learned counsel for the appellants. 8. Question for consideration in the present appeals is, whether the MACT has rightly determined the contributory negligence on the part of the appellants- Mahadev & Mallikarjun, who were riding un-registered and un-insured vehicle bearing Chassis No.05F5TS-5007673 to the extent of 50% or not? and further, whether the appellants are entitled for enhancement of compensation or not? 9. 8. Question for consideration in the present appeals is, whether the MACT has rightly determined the contributory negligence on the part of the appellants- Mahadev & Mallikarjun, who were riding un-registered and un-insured vehicle bearing Chassis No.05F5TS-5007673 to the extent of 50% or not? and further, whether the appellants are entitled for enhancement of compensation or not? 9. The contributory negligence determined by the MACT is concerned, fastening 50% contributory negligence on the part of the appellant-Mahadev, who was riding the un-registered and un-insured vehicle, whereas fastening of a contributory negligence on the part of the pillion rider Mallikarjun is concerned, such contributory negligence on the part of the pillion rider may not be correct as there is a negligence on the part of the driver of the vehicle. Whereas, he was aware of the fact that the vehicle which was driven by driver was un-registered and un-insured. Hence, fastening contributory negligence of 50% on the part of the pillion rider is correct. Therefore, contributory negligence of 50% could be taken only on the rider Mahadev, is not tenable. The contention of the appellant to the extent of determining contributory negligence that, he has not been charge sheeted. On the other hand, the driver of the cruiser has been charge sheeted. Merely, non-charge sheeting the rider Mahadev-appellant does not absolve the contributory negligence with reference to the fact that un-registered and un-insured vehicle was driven by him. Therefore, the aforesaid contention of the appellant that he was not charge sheeted would not be a hurdle for determining the contributory negligence on the part of the appellant-Mahadev. 10. Cited decisions on behalf of the appellant are perused. In those decisions, question of contributory negligence on behalf of the claimant cannot be fastened in the absence of filing charge sheet. Whereas, in the present case, for the purpose of contributory negligence in not filing the charge sheet what is required to be taken into consideration is appellants have driven the motor cycle on the public road without the vehicle being registered and insured, in fact Section 39, 192 r/w. Section 196 of the Motor Vehicles Act, 1988, which provided for penal clause even to the extent of criminal liability under Section 196, driving the un-insured vehicle would attract criminal liability as held by the Supreme Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Kulsum & others, reported in, (2011) 8 SCC 142 . In the cited decision, there was no occasion for the Court to upraise the aforesaid provisions of Motor Vehicles Act, in particularly Section 196 for driving the un-insured vehicle punishable with imprisonment which may extend to three months, or with fine which may extend to Rs.1,000/-, or with both. Therefore, there is a serious negligence on the part of the appellants in taking away the un-registered and non: insured vehicle in the public. Hence, contributory negligence on the part of the appellants cannot be ignored or they cannot escape in respect of the negligence and liability. Thus, MACT has not committed any error in determining the contributory negligence on the part of the appellants. The cited decisions are distinguished on both factual aspect as well as in not considering the various provisions of the Motor Vehicles Act, 1988. 11. It is relevant to quote say of Aleksandr Solzhenitsyn, the communist system of government had once said something very significant "a man used to moving about the streets riding in a motor-car lay never under stand a pedestrian even at a symposium or at a forum". Law is obeyed not merely on account of the penalties or sometimes which Parliament may have provided but because the people as a whole feel that the law as such is something which ought to be obeyed since its aim is the well being of society. So for these reasons one has to say that it is the first function & duty today of the Court, and particularly of appellate Courts, to keep alive & to expound & justify those great principles of law, bound up as they are with the daily life of our people. Hence, negligence on the part of the Appellants-claimants cannot be side-tracked for extending sympathy followed by reliefs like enhancement of compensation etc. 12. Insofar as enhancement of compensation is concerned, having regard to the negligence on the part of the appellants in driving the vehicle which was unregistered and un-insured itself is a grave negligence and it is contrary to provisions of Motor Vehicles Act. Therefore, question of enhancement of compensation would be nothing but rewarding for their serious negligence. 12. Insofar as enhancement of compensation is concerned, having regard to the negligence on the part of the appellants in driving the vehicle which was unregistered and un-insured itself is a grave negligence and it is contrary to provisions of Motor Vehicles Act. Therefore, question of enhancement of compensation would be nothing but rewarding for their serious negligence. In view of these factual aspects, appellants have not made out a case for enhancement of compensation, having regard to their conduct, in bringing an unregistered and non-insured motor cycle on the public road, that too on the main road. Accordingly, the appeals stand dismissed.