IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.8713/2012 (MV) BETWEEN:
SMT. CHINNA THAYAMMA W/O MADASHETTY NOW AGED ABOUT 57 YEARS R/AT GANGANADODDI RAMPURA HOBLI KOLLEGALA TALUK CHAMARAJA NAGAR-DISTRICT PINCODE:573 103.
(BY SMT.KAMALA D K, ADV.) AND:
1. M. DORE RAJU S/O K MARIMUTHU AGED ABOUT 47 YEARS R/AT HONNEGOWDA LAYOUT BEHIND KHB OFFICE KOLLEGALA CITY CHAMARAJANAGAR DISTRICT PINCODE:573 103.
2. M/S. UNITED INDIA INS CO.LTD., REGIONAL OFFICE, DRT BUILDING 5TH FLOOR ABOVE KRISHI BHAVAN NEAR ACMM COURT BANGALORE.
... APPELLANT ... RESPONDENTS (BY SRI.C SHANKARA REDDY, ADV. FOR R2 R1-NOTICE D/W V/O DT:19/02/2015) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.04.2011 PASSED IN MVC NO.4183/2010 ON THE FILE OF THE 21ST A.C.M.M, 23RD ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant/claimant not being satisfied with the quantum of compensation awarded under the judgment and award dated 07.04.2011 passed in MVC No.4183/2010 on the file of XXI ACMM and XXIII ASCJ, Bangalore, is before this Court in this appeal.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained by her in the accident that occured on 12.04.2010 when the claimant along with her husband was waiting for bus near Bus Stand of Hanur to go to Pushpapura, at that time all of a sudden, the bus bearing Reg.No.TN-45 D-2199 came in a rash, negligent manner and dashed against the claimant. Due to the impact the claimant fell down and the front wheel of the bus ran over her right leg and she sustained grievous injuries. Immediately she was shifted to Government Hospital at Kollegal and then shifted to Krishna Rajendra Hospital at Mysore. It is stated that the right leg of the claimant below knee was amputated. At the time of accident, she was aged about 55 years. She was working as a labourer and earning Rs.300/- per day.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared and filed its objection denying the claim averments. It is stated that the accident has not taken place due to sole negligence on the part of the driver of the Bus, but contended that there is contributory negligence on the part of the claimant. The appellant/claimant examined herself as PW.1 and got marked documents Exs.P1 to P10. Based on the material on record the Tribunal awarded total compensation of Rs.4,86,000/- to the appellant/ claimant, but saddled negligence on the part of the claimant to the extent of 40%. As such the claimant was entitled for compensation of Rs.2,91,600/- being 60% of the total compensation awarded by the Tribunal. 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 appeal papers and the lower Court records.
5. The learned counsel for the appellant would submit that the accident is of the year 2010 and the Tribunal has taken the monthly income of the claimant at Rs.3,000/-. It is stated that the Tribunal ought to have taken Rs.5,500/- as monthly income of the claimant. Further it is stated that the claimant was aged 55 years and the appropriate multiplier to be adopted was ‘11’, whereas the Tribunal has taken the multiplier of ‘8’. He further submits that the claimant was inpatient for 28 days, and her right leg below knee was amputated. It is his further submission that the Tribunal committed an error in saddling contributory negligence to the extent of 40% on the claimant, as the accident took place due to rash and negligent driving of the offending vehicle i.e., the driver of the bus and it is not due to the negligence on the part of the claimant. It is further submitted that the Mahazar would indicate that the claimant was standing on the platform and the bus came in a rash, negligent manner and hit the claimant, therefore, he submits that the insurer be made liable to pay 100% compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the accident has taken place within the private Bus Stand and the claimant was not waiting on the plat form when the accident took place. It is his contention that the claimant has not produced the sketch before the Tribunal to know exactly where the accident had taken place. In the absence of sketch showing the spot, the Tribunal has rightly held that the claimant is liable for contributory negligence to the extent of 40%. He further submits that the compensation determined by the Tribunal is just and proper and needs no interference.
7. After hearing the learned counsel for the parties and on going through the material on record including the lower court records, the question which falls for consideration is “Whether the Tribunal is justified in saddling contributory negligence on claimant to the extent of 40% and whether the claimant is entitled for enhanced compensation ?” The answer to the said question is in the ‘affirmative’ for the following reason :
The accident had taken place on 12.04.2010, when the claimant was waiting for the bus in the bus- stand of Hanur. The case of the claimant is that when she was standing on the platform of the Bus Stand, the bus bearing Reg.No.TN-45 : D-2199 came in rash, negligent manner and dashed against her, due to which she sustained injuries, which resulted in amputation of her right leg below knee. It is the contention of the counsel for the claimant that since she was standing on the platform and the bus came and dashed against her, the Tribunal is not justified in fastening 40% contributory negligence on the part of the claimant. She relies upon the Mahazar Ex.P1 in support of her contention. But the claimant has not produced the sketch to indicate the exact spot of the accident. Normally when the passengers wait for bus on the platform and if the bus is driven in a rash, negligent manner towards the plat form, obviously many passengers standing on the platform would have got injured. But in the present case, only the claimant was injured. Thus it is clear from the material on record that the claimant must have been waiting for the bus on the bus way and she was not standing on the platform. In the absence of any material to indicate that the accident has taken place when the claimant was standing on the plat form, the Tribunal has rightly held that the claimant was also negligent to the extent of 40% and as such the said finding needs no interference.
8. The accident is of the year 2010. The Tribunal has taken the monthly income of the claimant at Rs.3,000/-. Normally this Court and Lok Adalath would take notional income of Rs.5,500/- per month for the accidents of the year 2010. Hence, it would be appropriate to take the monthly income at Rs.5,500/-
for determining the compensation on the head ‘Loss of future income’. The claimant was aged 55 years as on the date of accident and the appropriate multiplier to be adopted is ‘11’. The Tribunal committed an error in taking the multiplier ‘8’. The compensation granted on the head ‘Attendant charges and conveyance’ is on the lower side. The claimant would be entitled for a sum of Rs.30,000/- on both the heads ‘Attendant charges and conveyance’. Further as the claimant’s right leg below knee is amputated, she would be entitled for compensation on the head of ‘Artificial Limb’ to an extent of Rs.60,000/-. The compensation awarded by the Tribunal on the head Pain and suffering, Medical expenses, Disability, Loss of amenities in life remains unaltered. Thus, in addition to Rs.2,91,600/- (60% of Rs.4,86,000/- as awarded by the Tribunal, the claimant would be entitled for following modified and enhanced compensation :
a. Loss of future earning (Rs.5,500/- x 12 x 11 = 7,26,000/-
Rs.7,26,000/- less Rs.2,88,000/-) - 4,38,000/-
b. Attendant Charges and Conveyance - 30,000/-
c. Artificial Limb - 60,000/-
Total - 5,28,000/-
10. Accordingly, the appeal is allowed in part. Out of the total enhanced compensation, the appellant would be entitled for 60% i.e., Rs.3,16,800/- (Rs.5,28,000/- x 60% = Rs.3,16,800/-) with interest at 6% p.a. as awarded by the Tribunal, from the date of petition till the date of realization. The Tribunal is not justified in denying interest on ‘Loss of earnings’. From out of the enhanced compensation 50% of the amount shall be kept in a fixed deposit in any Nationalized Bank for a period of five years, with liberty to the appellant to withdraw the periodical interest.
Sd/- JUDGE NG* CT:bms