IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.698 OF 2011 [MV] BETWEEN SMT. G.K. DRAKSHYANAMMA, W/O. MARUTHI, AGED ABOUT 40 YEARS, R/O. THERU BEEDI, SHIKARIPURA, C/O. THIMAPPA, 2ND CROSS, VINOBHA NAGAR, SHIVAMOGGA CITY.
(BY SRI. S.V. PRAKASH, ADVOCATE) AND 1. D. MURALIDHAR KAMATH, S/O. GOVINDA RAO KAMATH, AGED MAJOR (AGE NOT KNOWN TO THE APPELLANT) R/O. ARYA DURGAMMA KERI, SHIVAMOGGA CITY.
2. VIRESH, S/O. BATTI RUDRAPPA, AGE MAJOR, ARASU BADAVANE, SHIRALKOPPA, SAGAR TALUK, SHIVAMOGGA DISTRICT.
... APPELLANT 3. NATIONAL INSURANCE COMPANY LIMITED, SS COMPLEX, OPPOSITE TO CHURCH, BH ROAD, SHIVAMOGGA CITY, REPRESENTED BY BRANCH MANAGER.
4. DEVENDRAPPA, S/O. DYAMAPPA, AGED ABOUT 46 YEARS, R/O. CHANNAPURA VILLAGE, SORABHA TALUK, SHIVAMOGGA DISTRICT.
... RESPONDENTS (BY SRI. A.N. KRISHNA SWAMY, ADVOATE FOR R3; SRI. R.M. RAMAKRISHNA, ADVOCATE FOR R4;
R1 & R2- SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.01.2010 PASSED IN MVC NO.363/2005 ON THE FILE OF THE II ADDITONAL CIVIL JUDGE (SR.DN), MEMBER ADDITIONAL MACT, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMEPSNATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The injured/claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.363/2005, on the file of the II Addl. Civil Judge (Sr.Dn.) and AMACT, Shivamogga, wherein a compensation of Rs.1,00,500/- has been awarded. The Tribunal has further ordered that respondents No.1 to 3 are jointly and severally liable to pay 50% of the compensation together with interest at 6% per annum from the date of petition till its realization.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.3/Insurance Company.
3. The brief facts of the case are that on 26.01.2005, at about 1.30 p.m., the appellant/claimant was traveling as a pillion rider on a bike bearing registration No.KA-15-J-4401, ridden by respondent No.4. Near Bhadrapura, a passenger bus bearing registration No.KA-15-J-2170 belonging to 1st respondent and driven by the 2nd respondent in a rash and negligent manner, came to the wrong side and dashed against the bike. Consequently the appellant and the pillion rider fell down and left hand of the appellant was crushed under the right wheel of the bus. Immediately she was shifted to the Government hospital, Shikaripura, after the first aid treatment, she was shifted to K.M.C. Hospital, Manipal and treated as an inpatient in Orthopaedic Unit V.
4. It is the case of the appellant that she took treatment for more than 35 days as an inpatient and due to the accidental injuries, she has suffered permanent disability and spent huge amount towards medical expenses etc.
5. The learned counsel appearing for the appellant would contend that the appellant was an anganavadi teacher and earning a sum of Rs.5,000/- per month and due to the accidental injuries, she has suffered permanent disability and she has lost her ability to work as anganawadi teacher. He further submits that the Tribunal has erroneously held that there is a contributory negligence on the part of the motor cycle without considering the fact that the driver of the bus was convicted and sentenced to pay fine for his rash and negligent driving. He therefore submits that the total compensation awarded by the Tribunal is on the lower side and also contends that the driver of the bus was solely responsible for the accident and accordingly seeks to allow the appeal by modifying the judgment and award passed by the Tribunal.
6. Per contra, the learned counsel appearing for respondent No.3/Insurance Company would vehemently contend that the Tribunal has rightly come to the conclusion based on Ex.P-3 Spot Mahazar that there is a contributory negligence on the part of the motor cycle. He would submit that the total compensation awarded by the Tribunal and saddling 50% of the liability on the 4th respondent is just and proper and no interference is called for. Accordingly, seeks to dismiss the appeal.
7. It is the case of the appellant that on 26.01.2005 at about 1.30 p.m., while he was traveling as a pillion rider on a bike bearing registration No.KA- 15-J-4401, the said motor cycle met with an accident on account of rash and negligent driving by the driver of a passenger bus bearing registration No.KA-15-J- 2170.
8. The Tribunal while answering issue No.1, has held that the accident has occurred due to contributory negligence of the 4th respondent i.e., rider of the bike and exclusive negligent act of the 2nd respondent. To come to the said conclusion, the Tribunal has relied upon Ex.P3 – spot mahazar.
9. The motor cycle in which the appellant was traveling as a pillion rider was proceeding from Shiralkoppa to Shikaripura. The said road runs from North to South. The Tribunal after placing reliance on Ex.P3 and noticing that towards Western side of the tar road, there was blood-stains and pieces of glass bangles and cloth shoe of right leg were found, held that the accident spot is towards the Western side of the road, which is wrong side for the motor cycle. Further placing reliance on Ex.P-7 (copy of IMV report) and holding that there is no damage caused to the bus, held that the accident took place on the wrong side of the road in which direction the appellant was traveling and therefore held that there is a contributory negligence on the part of the 4th respondent.
10. It is relevant to note that the sketch of the spot of the accident has not been produced. Though it is contended by the learned counsel for the Insurance Company that the accident has occurred due to rash and negligent riding of the 4th respondent, no evidence has been let in by the respondents before the Tribunal. The driver of the bus has not been examined. Solely on the basis of Ex.P3, it cannot be held that the accident took place on the Western side of the road since the blood-stains and pieces of glass bangles and cloth shoe of the right leg were found on the left side of the road. In the absence of specific evidence with regard to accident in question, the Tribunal was not justified in holding that the rider of the bike was also responsible for the accident in question. It is also relevant to see from Ex.P-8 – Order sheet in CC No.352/2005, the driver of the bus pleaded guilty and fine was imposed against him. The said document was not at all considered by the Tribunal. In that view of the matter, I am of the view that the Tribunal committed an error in holding that there is a contributory negligence on the part of the 4th respondent in causing the accident.
11. According to the appellant, she was an anganawadi teacher and earning a sum of Rs.5,000/- per month. However, there is no evidence with regard to the income of the appellant. The Tribunal has taken the income of the appellant at Rs.2,500/- per month. In the absence of any specific evidence with regard to the income, the income of the appellant could be taken at Rs.2,500/- per month.
12. The appellant has sustained fracture of forearm and she has also undergone plastic surgery. PW2 is an Orthopedic surgeon. Perusal of his evidence goes to show that the appellant sustained type – III B open fracture of distal end of left radius. On examination on 28.10.2005, he has found the following injuries :
(a) Patient has 10-90 of flexion in left elbow.
(b) Has pronation of 0-70 in left forearm.
(c) Has 10 of dorsiflexion and palmar flexion in her left wrist joint.
(d) Left hand fingers are stiff at MCP & IP joints.
(e) Muscle power at left elbow is grade IV, left wrist extension is grade III, left wrist flexors are of grade III, finger extension is grade II, flexion grade II, with scarring of skin with loss of sensation.
The permanent disability has been assessed at 45% to the left upper limb. The doctor has not assessed the functional disability to the whole body. Considering the entire evidence on record, I deem it proper to take the disability to the whole body at 10%. The appellant was aged about 36 years as per wound certificate, at the time of the accident and the multiplier applicable is 15. Therefore, the appellant is entitled for a sum of Rs.45,000/- (Rs.2,500x12x15x10/100) towards loss of future income due to disability.
13. Considering the nature of injuries and disability suffered and period of treatment etc., the compensation awarded towards pain and suffering is enhanced from Rs.30,000/- to Rs.40,000/-. A sum of Rs.36,500/- awarded towards medical expenses is retained. A sum of Rs.5,000/- is awarded towards loss of income during treatment period. A sum of Rs.10,000/- awarded towards miscellaneous expenses is adjusted towards attendant charges, conveyance, food and nourishment. A sum of Rs.25,000/- is awarded towards loss of amenities. In all, the appellant is entitled for a total compensation of Rs.1,61,500/- as against Rs.1,00,500/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 02.01.2010 passed by the II Addl. Civil Judge (Sr.Dn.) and AMACT, Shivamogga in MVC No.363/2005 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,61,500/- as against Rs.1,00,500/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondents No.1 to 3 are jointly and severally liable to pay the entire compensation together with interest at 6% per annum from the date of petition till the date of realization.
Respondent No.3-Insurance Company shall deposit the compensation amount within four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE snc