IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.534/2013 (MV) BETWEEN:
GOWRI SHETTIGARTHY AGED ABOUT 63 YEARS W/O LATE SHANKAR SHETTIGAR R/O “SRI RAMA NILAYA” NILAVARA, GARADI ROAD CHERKADY VILLAGE UDUPI TALUK.
...APPELLANT (BY KUM. AKSHITA D JAIN, ADV. FOR SRI. PAVANA CHANDRA SHETTY H, ADV.) AND:
1. FR. DANIES SALDANA AGED ABOUT 53 YEARS S/O SALVADORE SALDANA HEAD MASTER NIRMALA ENGLISH MEDIUM SCHOOL BRAHMAVARA, UDUPI TALUK.
2. THE ORIENTAL INSURANCE CO. LTD., MASTI TOWER MASTI KATTE MAIN ROAD KUNDAPAURA REPRESENTED BY ITS NEAREST DIVISIONAL MANAGER THE DIVISIONAL OFFICE VISHNU PRAKASH BUILDING 2ND FLOOR, COURT ROAD UDUPI.
(BY SRI.M NARAYANAPPA, ADV. FOR R2 R1- SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.12.2011 PASSED IN MVC NO.41/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, 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 in appeal being aggrieved by saddling of 20% contributory negligence and not being satisfied with the quantum of compensation awarded under the judgment and award dated 17.12.2011 passed in MVC No.41/2010 on the file of Principal Senior Civil Judge and Addl. MACT, Udupi.
2. The accident that occurred on 17.06.2009 involving stage carriage vehicle bearing No.KA.20.B.2623 and the accidental injuries sustained by the claimant are not in dispute. The claimant’s appeal is for enhancement of compensation. The Tribunal based on the material on record awarded Total compensation of Rs.70,410/- and after deducting 20% contributory negligence, awarded compensation of Rs.56,328/- with interest at 8% p.a. from the date of petition till the date of realization on the following heads :-
1. Pain and sufferings 35,000-00 2. For conveyance charges 2,000-00 3. For attendant and nourishing food 4,000-00 4. Medical bills 410-00 5. Loss of income 9,000-00 6. Discomfort and loss of amenities of life 20,000-00 Total Rs.70,410-00 While awarding the above compensation the Tribunal saddled 20% contributory negligence on the claimant. Being aggrieved by the quantum of compensation and saddling of 20% contributory negligence on the claimant, she is in appeal before this Court.
3. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurer. Perused the entire material on record.
4. The learned counsel for the appellant submitted that the tribunal committed an error in saddling 20% contributory negligence on the claimant. It is submitted that the accident had taken place while the claimant was standing by the side of the road. At that time, the Stage Carriage vehicle came in a rash and negligent manner and dashed to the claimant. There is no material or evidence to come to the conclusion that as to whether the claimant also attributed his negligence to the occurrence of the accident. Thus prays for setting aside that part of saddling of 20% contributory negligence. The learned counsel submits that when compared to the injuries sustained, the quantum of compensation awarded is on the lower side. It is submitted that the claimant sustained major injury of Tibial spine fracture of un-displaced right knee and other simple injuries. The claimant has also sustained fracture of optimal myopathy of right eye with laceration over the edema of right eye and malar region of face right side. Further it is submitted that the claimant was inpatient for 20 days. Even though the claimant had produced Ex.P.11 – the disability certificate, which indicated that the claimant had suffered 10% disability to right lower limb, the Tribunal failed to award compensation for ‘loss of future income due to disability’, Thus prays for enhancement of compensation.
5. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. It is further submitted that the claimant had produced Ex.P.11 – the disability certificate, but PW.2 – the Doctor has not deposed with regard to disability suffered by the claimant. In the absence of Doctor’s evidence, the Tribunal has rightly not assessed the whole body disability and prays for dismissal of the appeal.
6. On hearing the learned counsels for the parties and on perusal of the material on record, the points that arise for consideration is as to :-
a. Whether the Tribunal is justified in saddling 20% contributory negligence on the claimant?
b. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to the above points would be in the affirmative for the following reasons :
On 17.06.2009 when the claimant was standing by the side of the road of Cherkady Village, a Stage Carriage Vehicle bearing Reg.No.KA.20.B.2623 came in a rash, negligent manner and dashed to the claimant, as a result, the claimant sustained grievous injuries. The claimant has placed on record Ex.P.1 FIR, Ex.P2 – the Spot Mahazar, Ex.P.3 the Wound Certificate and Ex.P.4 – police notice. The claimant examined herself as PW.1. In her cross-examination PW.1 – the claimant admits that without observing the movement of vehicles on the right and left side, she crossed the road, due to which the accident occurred. When the claimant herself admits that the accident occurred, when she was crossing the road unmindfully, the Tribunal is justified in saddling 20% contributory negligence on the claimant. I find no error to that effect.
With regard to quantum of compensation, it is to be noted that the claimant was inpatient for 20 days. Apart from simple injuries the claimant has sustained Traumatic optic neuropathy of right eye. PW.2 the Doctor examined on behalf of the claimant has not stated with regard to the disability suffered by the claimant, but the claimant has placed on record Ex.P.11 – the disability certificate which would indicate that the claimant suffers from 10% disability to right lower limb. The claimant has not examined the Doctor, who issued disability certificate. In the absence of doctor’s evidence with regard to disability, the Tribunal is justified in not assessing the whole body disability. But looking to the injuries sustained and treatment taken for 20 days, the quantum of compensation awarded towards ‘attendant charges, nourishment and food’ and ‘loss of amenities’ are on the lower side. Therefore, the claimant would be entitled for a sum of Rs.10,000/- towards ‘conveyance charges’, Rs.10,000/- on the head ‘attendant and nourishing food’ and another sum of Rs.10,000/- on the head of ‘loss of amenities’. Thus the claimant would be entitled to the modified
7. 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.94,410/- as against Rs.70,410/- awarded by the Tribunal, with interest at 8% p.a. from the date of petition till the date of realization. The finding with regard to contributory negligence remains undisturbed.
Sd/- JUDGE NG* CT:bms