Dinesh vs M/s. Shriram General Insurance Co. Ltd. & Anr.

The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by MACT, Bengaluru, SCCH-14

dated 15.9.2015 in MVC No.3665/2014.

Heard the learned counsel appearing for the parties.

The averments of the petition are that on 25.3.2014 at about 8.30 a.m. petitioner Dinesh was crossing Hosur Service Road near Thirumala bar,

at that time, a Tempo Trax bearing registration No.KA.01 B.5591 came rashly and negligently and dashed against the petitioner. As a result of the

same he fell down and sustained grievous injuries. Immediately, he was taken to Popular Hospital and Research Centre, wherein he was admitted

as an inpatient from 25.3.2014 to 6.4.2014. It is the further contention of the petitioner that a case was registered in Crime No.42/2014 against

the driver of the Tempo Trax. It is the further contention of the petitioner that he was a Painter, earning an amount of Rs.250/- per day. For having

suffered the injuries, a claim petition came to be filed under Section 166 of the Motor Vehicles Act.

In pursuance of the notice, respondent No.1 appeared and filed his objections by denying the contents of the petition. He has further contended

that the accident has occurred due to the sole negligence of the petitioner himself when he tried to cross the road, wherein there is no provision for

pedestrian crossing. He further contended that the owner has not complied the mandatory duties and the driver of the offending vehicle was not

holding valid and effective driving licence and the vehicle was also not holding any permit, the compensation claimed is highly exorbitant. On these

grounds he prayed for dismissal of the petition. Respondent No.2 has remained exparte.

After considering the pleadings, Tribunal framed the following issues:

i. Whether the petitioner proves that he sustained grievous injuries in the nature of permanent disablement on 25.03.2014 at about 8.30 a.m. near

Thirumala Bar, Hosur Service Road, Singasandra, Bangalore, in an accident arising due to rash and negligent driving of driver of Tempo Traveller

bearing No.KA-01 B- 5591?

ii. Whether the petitioner is entitled for compensation? If so, how much and from whom?

iii. What Order or Award?

In order to prove the case of the petitioner, petitioner got himself examined as PW1 and examined one witness Dr.B.M.Ananth as PW2 and got

marked the documents Exs.P1 to P13. The respondents have not led any evidence. After hearing the parties to the lis, the impugned judgment and

award came to be passed. Assailing the same, the appellant-claimant is before this Court.

It is the contention of the learned counsel for the appellant that the learned Tribunal has erred in awarding the compensation to the extent of

Rs.1,11,000/- and even fastening the liability on the claimant to the extent of 25% is also erroneous and the same is not sustainable in law. He

further contended that the compensation awarded under other heads is also on the lower side and the same has to be increased proportionately.

On these grounds he prayed for allowing the appeal by enhancing the compensation.

Per contra, the learned counsel appearing for the respondent-Insurer vehemently argued by contending that the document at Ex.P3 sketch

normally goes to show that the appellant tried to cross the road wherein there is zebra marking to pass the pedestrian. He further contended that

the accident has admittedly taken place in the service road and the appellant-claimant has tried to cross the road and there is no other way to the

driver of the Tempo Trax to proceed. Under such circumstances, the appellant-claimant himself has contributed to the extent of 25% and Tribunal

has rightly adjudicated the said liability and has rightly fixed the liability to the extent of 25% and there are no grounds to interfere in such findings

given by the trial Court. He further contended that the compensation awarded by taking into consideration the injuries suffered by the claimant is

just and proper, it does not require any enhancement. On these grounds, he prayed for dismissal of the appeal.

The accident in question is not in dispute so also the involvement of the offending vehicle insured with the respondent insurer.

As could be seen from the judgment and award passed by the Tribunal and the original records secured in this behalf the claimant has suffered

injury on the left foot with avulsion of skin, injury to tendons, fracture of 2nd and 3rd metatarsal of left leg and he has been conservatively treated in

the Popular Hospital and he was admitted as an inpatient from 25.3.2014 to 6.4.2014. It is the contention of the appellant that he has spent an

amount of Rs.36,310/- towards medical expenses. After considering the injuries and by taking into consideration the evidence of PW2 who has

deposed that the claimant has suffered permanent disability to the extent of 10% to the left foot, the Tribunal by taking 1/3rd of the same to the

extent of 4% to the whole body, has awarded the compensation as mentioned below: Toward pain and sufferings Rs.30,000/-, towards medical

expenses Rs.37,000/-, attendant charges, nourishment, conveyance Rs.10,000/-, loss of income during the laid up period Rs.21,000/-, toward

disability Rs.40,000/-, loss of amenities Rs.10,000/-. Thus, in all the Tribunal has awarded compensation of Rs.1,48,000/-. As, the

appellantclaimant has contributed to the extent of 25%, it has awarded an amount of Rs.1,11,000/-.

It is the contention of the learned counsel for the appellant that the appellant was working as a Painter and he used to earn Rs.250/- per day,

but the Tribunal by taking an amount of Rs.7,000/- per month has awarded the compensation as mentioned above. By taking into consideration

the evidence of PW2 and the other records and injuries by themselves, the compensation awarded by the Tribunal appears to be just and proper.

There are no grounds to interfere and enhance the compensation awarded by the Tribunal.

The second contention taken up by the learned counsel for the appellant is that, though the claimant has not contributed to the extent of 25%,

the Tribunal held that he has also contributed to the extent of 25%, is not just and proper. By relying upon the decision in the case of A.Anandan

Vs. Abdul Azeez and Others reported in 2004 ACJ 1091, he further contended that, whenever a person is crossing the road without caring for the

traffic and when the driver has not been examined nor any other evidence has been produced by the insurer, then under such circumstances, the

contributory negligence cannot be accepted. He further contended that in the instant case on hand the respondents have not led any evidence to

substantiate the said fact. He further contended that the heavy burden lies upon the insurer to prove the contributory negligence on the part of the

appellant-claimant. If he has not led evidence to prove the same, then under such circumstances, the inference of contributory negligence cannot be

drawn only on the basis of the documents which have been produced. In order to substantiate his contention he relied upon the decision in the case

of Prabandhak, U.P. Rajya Sadak Parivahan Nigam Vs. Rabia Begum and Others reported in 2015 ACJ 1492.

Per contra, the learned counsel for the insurer vehemently argued by contending that the appellant-claimant in his evidence has specifically

admitted the fact that there is no marking of zebra crossing as to exactly where the alleged accident has taken place and has also admitted in the

cross examination that there was no traffic signal and zebra crossing in the place of accident. Under such circumstances the insurer need not lead

his evidence and substantiate the said fact, when the said fact has been admitted by the claimant himself. He further contended that when there is

no place to proceed to the driver of the Tempo Trax and the claimant himself has abruptly cross the road, under such circumstances, the accident

has taken place. In that light, he supports the judgment of the Tribunal.

I have gone through carefully and cautiously the contentions raised by the learned counsel appearing for the parties and I have also perused the

records which have been produced, Ex.P3 the sketch of the place of accident. Admittedly the said accident has taken place on the service road

which is having a width of 25 feet and the accident has taken place from the edge of 3 feet and even the fact that the place of accident is not in

dispute in this behalf. By going through the said records it indicates that the accident has taken place at the service road, though it is the contention

of the learned counsel for the respondents that the claimant has admitted the fact that there was no traffic signal and zebra crossing in the place of

accident and in that place the claimant has abruptly tried to cross the road and in that event the alleged accident has taken place. The said

admission has to be considered and appreciated with reference to the Indian context. Usually in India it is noticed that, though there will be zebra

marking at crossing place, usually people will cross the roads according to their convenience and in that light if the said admission is taken into

consideration, then under such circumstances, the finding given by the Tribunal that the pedestrian has also contributed to the extent of 25%

appears to be on the higher side. No doubt he has also tried to cross the road knowing that there is no traffic signal or zebra crossing, but at the

time of driving the vehicle, the driver of the Tempo Trax ought to have taken care with reference to the Indian road conditions and in that light he

might have anticipated that some persons may come and cross the road. In that light, he has also contributed to the alleged accident.

In the light of the discussions held by me above, I feel that, the accident has taken place from the edge at 3 feet and the width of the road is 25

feet and still there was some place on the right side of the road for the driver of the Tempo trax to avoid the accident. In the light of the discussion

held by me above, I only hold that the pedestrian has contributed only to the extent of 10%, that too, he could have also taken care of the fact that

the vehicles may come or he could have only cross the road after observing the on coming vehicles. In that light, 10% contribution can be taken

into consideration in that behalf.

Keeping in view the above said facts and circumstances, though findings given by the Tribunal holding that the appellant-claimant has

contributed to the extent of 25%, is set aside and it can be held that, he has contributed to the extent of 10%. In that light, the compensation

awarded to the extent of Rs.1,48,000/- has to be apportioned and the appellant-claimant is entitled to the compensation amount to the extent of

90% from the respondent- Insurer and remaining 10% has to be borne by the appellant-claimant himself.

Keeping in view the above said facts and circumstances, the appeal is allowed in part and the judgment and award passed by the MACT,

Bangalore City, in MVC No.3665/2014 dated 15.9.2015 is modified as indicated above. The respondent-insurer is directed to deposit the

compensation awarded by the Tribunal to the extent of 90% within a period of six weeks from the date of receipt of Certified Copy of this order.