IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R.DEVDAS M.F.A. NO.11117 OF 2011 (MV) BETWEEN H D NIRANJAN S/O H S BASAVARAJAPPA AGE 42 YEARS, OCC:AGRICULTURE, R/O CHIKKAJOGIHALLI VILLAGE, SHIKARIPURA TALUK, SHIMOGA DISTRICT-577 201 (BY SRI S V PRAKASH, ADVOCATE) AND 1. K BASAVARAJAPPA S/O SHEKARAPPA MAJOR (EXACT AGE NOT KNOWN TO THE APPELLANT) R/O 2ND CROSS, ASHOKA NAGAR, SHIMOGA CITY-577 201 (OWNER OF BAZAZ DISCOVER VEHICLE BEARING REG NO.KA 14 V 9887) 2. S R ARUNA S/O R SHIVAKUMAR AGED 23 YEARS, R/O ISUR VILLAGE, SHIKARIPURA TALUK, SHIMOGA DISTRICT-577 201 (RIDER OF BAZAZ DISCOVER VEHICLE BEARING REG NO.KA 14 V 9887) ... APPELLANT 3. M/S NATIONAL INSURANCE COMPANY LIMITED NATIONAL S S COMPLEX 1ST FLOOR, OPP. CHURCH, NEAR MOOLERANGAPPA PETROL BUNK, SHIMOGA CITY- 577 201 REPRESENTED BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI C M POONACHA, ADVOCATE FOR R3 NOTICE TO R1 & R2 SERVED AND UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:08.07.2011 PASSED IN MVC NO.120/2009 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T R.DEVDAS J., (ORAL):
The appellant is before this Court seeking enhancement of the compensation granted by the II Additional Senior Civil Judge and AMACT at Shimoga and seeks to contest the finding of the Tribunal on the aspect of the contributory negligence.
2. The appellant herein contends that on 06.09.2008 when he was proceeding on his motor bike bearing registration No.KA-15-L-290, near Alkola Circle, Sagar Road, at about 9.15 p.m., the 2nd respondent, riding another two wheeler bearing registration No.KA-14-V-9887, belonging to the 1st respondent herein, collided with the motorcycle on which the appellant was proceeded. It is submitted that the offending vehicle hit the motor cycle of the appellant from behind. The appellant fell down from the motorcycle and sustained grievous injuries. The appellant was immediately shifted to Aruna Hospital, Vinobanagar, Sagar, wherein first aid was given to the appellant herein. It is stated that on advice of the Doctors at Aruna Hospital, the appellant was shifted to KMC Hospital. It is further contended by the appellant that he was inpatient for more than 23 days in the hospital and surgery had conducted on the appellant at KMC Hospital and he has incurred Rs.1,00,000/- towards surgery and treatment. It is also submitted that the appellant requires an additional sum of Rs.50,000/- for future treatment. The appellant contends that he was an agricultural coolie and was earning Rs.15,000/- per month.
3. The Tribunal has held that the petitioner was also responsible for the accident, since the accident has occurred in the middle of the road. Therefore, contributory negligence of 50% has been held as against the appellant herein.
4. Learned counsel for the respondent - Insurance Company submits that the Tribunal is justified in awarding a sum of Rs.69,130/- on various heads, while deducting 50% from the said amount as the appellant herein was responsible for the accident and only 50% out of the compensation was directed to be given to the appellant herein. Learned counsel points out to the finding of the Tribunal for having come to a conclusion that it is a doubtful case brought before the Tribunal. It was submitted that the Tribunal is justified in arriving at that conclusion, since the accident is said to have occurred in Sagar Taluk of Shimoga District, while the appellant has taken treatment at KMC Hospital at Udupi District, which is about 160 k.m. away from Sagar. The appellant has failed to justify the reason why he has not spelt out before the Doctors at Aruna Hospital regarding the occurrence of the accident and neither he has stated before the Doctors at KMC Hospital. It is pointed out by the learned counsel that the police from Shivmoga city arrived at KMC Hospital to take the statement of the appellant. The appellant has not examined the treating Doctor. All these has led to the suspicion in the mind of the Tribunal and therefore the Tribunal is justified in granting the compensation inspite of the appellant having failed to substantiate his contention by placing cogent material before the Tribunal and proving the documents which is necessary, in accordance with the Evidence Act.
5. Having heard the learned counsels and on perusing the pleadings and the lower court records, this Court is of the opinion that the Tribunal is justified in arriving at a conclusion that the appellant has contributed 50% negligence towards the accident and therefore the appellant herein was eligible for only 50% of the compensation that is awarded by the Tribunal. However, if the Tribunal has accepted the fact that the accident has occurred and the appellant has taken the treatment at KMC Hospital, Manipal, the Tribunal also had to take into account the certificate issued by the KMC Hospital stating that the appellant was an inpatient at the hospital from 08.09.2008 to 19.09.2008 and once again from 3.11.2008 to 5.11.2008. The appellant was also advised to follow up as an outpatient after six weeks. The treatment certificate issued by the Assistant Professor of Orthopedics at KMC Hospital, Manipal has certified that on 10.09.2008, open reduction and fixation of 2K Wires and external fixator application on radious was done on the appellant. Further bone grafting from right olecranon was also done. In that view of the matter, the compensation awarded by he Tribunal towards pain and sufferings requires to be enhanced from Rs.30,000/- to Rs.50,000/-. It is also seen that the Tribunal has not awarded anything towards the loss of income during laid up period. Though the appellant contends that he was unable to work for a period of six months, this Court is of the opinion that the appellant deserves to be awarded compensation for a period of three months having regard to the nature of injuries and the surgery he had undergone. In that regard, a sum of Rs.5,000/- per month is the income to be reconed as per the chart prepared by this Court. Hence, Rs.5,000/- x 3 = Rs.15,000/- towards loss of income for the laid up period.
6. In the result, the petition is allowed in part and the judgment and award of the Tribunal is modified by granting an additional sum of Rs.35,000/- as stated above. The respondents No.1 to 3 are jointly and severally liable to pay 50% of the enhanced compensation to the appellant with interest at the rate of 6% per annum, from the date of the petition, till deposit. The respondent No.3 is directed to deposit 50% of the enhanced amount along with interest, within one month from the date of this order. Ordered accordingly.
SD/- JUDGE KLY/