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Mr Ashwath Kumar Rao vs Mr Ajith Kumar Shetty A And Others

High Court Of Karnataka|11 October, 2019
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JUDGMENT / ORDER

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.5831/2013 [MV] BETWEEN:
MR. ASHWATH KUMAR RAO S/O JAGADEESH RAO AGED ABOUT 21 YEARS R/AT VISHWACHAYA KODIALGUTHU MANGALORE TALUK D.K. DISTRICT, PIN: 575009.
(BY SRI.RAVISHANKAR SHASTRY G, ADV.) AND:
1. MR. AJITH KUMAR SHETTY A S/O A VISHWANATH SHETTY AGED ABOUT 33 YEARS R/AT ADYARGUTTHU HOUSE ADYAR VILLAGE MANGALORE TALUK D.K. DISTRICT, PIN: 575008 ...APPELLANT 2. ICICI LAMBARD GENERAL INSURANCE CO. LTD., ZENITH HOUSE, KESHAVA KHADE MARG MAHALAXMI, MUMBAI PIN: 400014 REP. BY ITS MANAGER.
…RESPONDENTS (BY SRI.D MANJUNATH, ADV. FOR R2 R1-NOTICE D/W V/O DT:21.11.2014) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.02.2013 PASSED IN MVC NO.1152/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 27.02.2013 passed in MVC No.1152/2010 on the file of MACT, D.K. Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 22.03.2010 when the claimant was proceeding in his Motor Cycle bearing Reg.No.KA-19/X- 8320 along with pillion rider, a Tipper Lorry bearing Reg.No.KA.19/2626 came from Kottara Chowki side in a high speed, rash, negligent manner and dashed to the motor cycle, due to which the claimant fell down and sustained grievous injuries. Immediately he was shifted to A.J. Hospital for treatment, where he was inpatient from 22.03.2010 to 09.04.2010. The claimant states that he was working as Supervisor in a hotel, earning Rs.4,000/- per month and he was aged 18 years as on the date of accident.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the claim petition averments and admitting the issuance of policy in respect of the offending tipper lorry. It is stated that the accident occurred solely due to the negligent driving by the rider of the Motor Cycle. Further it was contended that the driver of the tipper lorry was not holding valid and effective driving licence to drive the vehicle as on the date of accident. The claimant examined himself as PW.1 and also examined the Doctor as PW.2 and got marked the documents Exs.P.1 to P.20. The insurer marked Ex.R.1 – the Insurance Policy. The Tribunal on assessing the material on record awarded total compensation of Rs.1,39,400/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads:-
1. Pain and sufferings 30,000/-
2. Hospitalization, attendant charges, conveyance etc., 20,000/-
3. Medical expenses 42,000/-
4. Future Medical expenses 15,000/-
5. Loss of future income due to disability 32,400/-
Total 1,39,400/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.3,000/- per month and assessed the whole body disability at 5% and saddled 25% contributory negligence on the claimant. Aggrieved by the saddling of 25% contributory negligence and not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record including the lower court records.
5. The learned counsel for the appellant would submit that the Tribunal committed an error in saddling 25% contributory negligence on the claimant. He submits that Ex.P2 - the mahazar and sketch would clearly indicate that accident occurred due to the negligent driving by the driver of the tipper lorry. He submits that the road width was 24 feet and the accident had taken place 7 feet from the left side of the road. There was 17 feet available for the tipper lorry to move, but it came on the right side and dashed to the motor cycle. The learned counsel for the appellant submits that the Tribunal saddled 25% contributory negligence on the claimant. There was no definite finding by the Tribunal to saddle such contributory negligence. The learned counsel for the appellant further contended that the income assessed by the Tribunal at Rs.3,000/- per month is on the lower side. He states that the claimant was working as Supervisor in a hotel and was earning Rs.4,000/- per month. He submits that the Tribunal ought to have taken the income stated by the claimant. It is submitted that PW.2 – the Doctor stated in his evidence that the claimant suffers from 6% disability to the right upper limb and 16% disability to the left lower limb. The Tribunal assessed whole body disability at 5% without there being any reason. The claimant was inpatient for 30 days in two intervals. Thus he prays for revision of percentage of whole body disability. Lastly the learned counsel contended that the Tribunal failed to award any compensation towards medical bills. He submits that the claimant submitted bills for Rs.1,04,357/- and had stated that he received Rs.62,493/- from TTK Healthcare Mediclaim Policy. Taking into consideration the said amount, the Tribunal awarded balance amount of Rs.42,000/-. The Tribunal failed to look into Ex.P.10 – the Bills submitted by the claimant for a sum of Rs.70,156/- which the claimant would be entitled. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the claimant would not be entitled to enhancement of compensation. He submits that the Tribunal has rightly assessed the whole body disability at 5%, taking note of the nature of injuries suffered and the evidence of PW.2 the Doctor, which requires no interference. Further it is his contention that the Tribunal has rightly saddled 25% contributory negligence on the claimant. It is his submission that the accident occurred solely due to the negligent driving of the claimant who was riding the motor bike. Further it is submitted that even though the road width was 24 feet, one side of the road was closed for repair work and only one side of the road was operating. In that circumstances, the rider of the motor cycle ought to have been careful while riding the motor cycle. Thus he prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points arise for consideration :-
a. Whether the Tribunal is justified in saddling 25% contributory negligence on the claimant ?
b. Whether the assessment of whole body disability at 5% by the Tribunal is just and proper ?
c. Whether the claimant would be entitled for medical expenses as per Ex.P.10 ?
d. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to points (a) and (b) is in the negative and in respect of points (c) and (d) is in the affirmative for the following reasons :
The occurrence of the accident on 22.03.2010 involving Motorcycle bearing Reg.No.KA-19/X.8320 and tipper lorry bearing Reg.No.KA.19/2626 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation as well as against the saddling of 25% contributory negligence on him. The learned counsel for the appellant contended that the tribunal committed an error in saddling 25% contributory negligence on the claimant. To appreciate the said contention it is necessary to examine Ex.P.2 – Spot mahazar and the sketch attached to it. On perusal of the sketch it is seen that the claimant was proceeding along with pillion rider in his Motor Cycle bearing Reg.No.KA.19/X.8320 from Nantur towards Kottara chowki. The tipper lorry bearing Reg.No.KA.19/2626 had 17 feet place to pass through. It had come to the extreme right side and dashed to the motor cycle. Further it is to be noted that the charge sheet is filed against the driver of the tipper lorry for rash and negligent driving. There is no material which would indicate rash and negligent driving of the Motor Cycle by the claimant. From the sketch and charge sheet Ex.P.5 – it could be concluded that the accident occurred solely due to the negligent driving by the driver of the tipper lorry. As such the Tribunal committed an error in saddling 25% contributory negligence on the claimant. That part of the judgment and award is set aside. The claimant has sustained grievous injuries and fracture. He was inpatient from 22.03.2010 to 09.04.2010 and subsequently from 20.05.2010 to 31.05.2010. PW.2 – the Doctor in his evidence has stated that the claimant suffered 6% disability to the right upper limb and 16% to the left lower limb. Taking note of the evidence of the Doctor – PW.2, the nature of injuries suffered and treatment taken by the claimant the Tribunal rightly assessed whole body disability at 5%, which needs no interference. The Tribunal assessed the income of the claimant at Rs.3,000/- per month which is on the lower side. The accident is of the year 2010. The claimant stated that he was earning Rs.4,000/- per month working as a Supervisor in a Hotel. In the absence of any material to indicate the exact income of the claimant, the Court will have to determine the income on notional basis. This Court and Lok Adalath while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- per month. As the claimant stated that he was earning Rs.4,000/- per month, it is appropriate to take the income at Rs.4,000/- per month. Before the Tribunal the claimant produced Exs.P10 and 11 – the medical bills amounting to Rs.1,74,513/-. The claimant has also stated that he had taken reimbursement of Rs.62,493/- from TTK Healthcare Mediclaim policy. Ex.P11 was the bill for a sum of Rs.1,04,357/-. It is said that the said amount is after deducting Rs.62,493/-, the amount of reimbursement taken from the Mediclaim policy. The Tribunal awarded a sum of Rs.42,000/- towards medical expenses ignoring total amount under Exs.P10 and P11 – Bills. Exs.P10 and P11 bills are not disputed by the insurer. Ex.P10 is for a sum of Rs.70,156/-. Exs.P10 and 11 would totally come to Rs.1,74,513/-, out of which he had taken reimbursement of Rs.62,493/- from Mediclaim policy. The Tribunal awarded Rs.42,000/- towards medical expenses. The claimant would be entitled for the balance of medical expenses of Rs.70,120/- apart from reimbursement of Rs.62,493/- and compensation of Rs.42,000/- awarded by Tribunal on the head medical expenses. The Tribunal has failed to award any compensation on the head loss of amenities which the claimant would be entitled to for Rs.20,000/-, looking to the nature of injuries suffered, treatment taken.
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.2,40,320/- as against to Rs.1,39,400/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. As the saddling of 25% contributory negligence on the claimant is set aside, the insurer is liable to pay the entire compensation.
Sd/- JUDGE NG* CT:bms
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Title

Mr Ashwath Kumar Rao vs Mr Ajith Kumar Shetty A And Others

Court

High Court Of Karnataka

JudgmentDate
11 October, 2019
Judges
  • S G Pandit