IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.1260/2012 C/W 2446/2012 (MVC) IN M.F.A. NO.1260 OF 2012 BETWEEN;
Harish Keshav Naik, S/o. Keshav D. Naik, Aged about 31 years, Occupation: Manager, R/at 100, 1st Floor, I Main, Wewar Layout, Vijaynagar II Stage, Bangalore. ... Appellant (By Sri Nagaraja Hegde, Adv.) AND:
1. United Indian Insurance Co. Ltd., No.487/1,CMH Road, Above Indian Overseas Bank, Near Amarjyothi Nursing Home, Indiranagar I Stage, Bangalore – 38.
2. Smt. Kavitha, W/o. Dasharath, No.128, I Main Road, Flower Garden, Mysore Road, Bangalore - 18. ... Respondents (By Sri B.A. Ramakrishna, Adv. for R-1 Notice to R2 is held sufficient V/o. dated 06.06.17) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 01.10.2011 passed in MVC No.5674/2010 on the file of the XXI ACMM and XXIII Addl. Small Causes Judge, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A. NO.2446 OF 2012 BETWEEN;
United Indian Insurance Co. Ltd., No.487/1,CMH Road, Above Indian Overseas Bank, Near Amarjyothi Nursing Home, Indiranagar I Stage, Bangalore – 38.
Now represented by its Manager, Regional Office, Krishi Bhavan, Bangalore -1 by its Manager …Appellant (By Sri B.A. Ramakrishna, Adv.) AND:
1. Harish Keshav Naik, S/o. Keshav D. Naik, Aged about 31 years, R/at 100, 1st Floor, I Main, Wewar Layout, Vijaynagar II Stage, Bangalore – 560 040.
2. Smt. Kavitha, W/o. Dasharath, Major by age, No.128, I Main Road, Flower Garden, Mysore Road, Bangalore - 18. ... Respondents (By Sri Nagaraja Hegde, Adv. for R-1 Notice to R2 is held sufficient V/o. dated 01.07.14) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 01.10.2011 passed in MVC No.5674/2010 on the file of the XXI ACMM and XXIII Addl. Small Causes Judge, MACT, Court of Small Causes, Bengaluru, awarding compensation of Rs.2,09,200/- with interest @ 6% p.a. excluding interest on future medical expenses from the date of petition till deposit.
These appeals coming on for Admission, this day, the Court delivered the following:-
J U D G M E N T MFA No.1260/2012 is filed by the claimant challenging the judgment and award passed by the Tribunal on the ground of negligence as well as quantum of compensation, whereas MFA No.2446/2012 is filed by the insurer of Tata Sumo vehicle bearing No.KA-41-233 challenging very same judgment and award passed by the Tribunal on the ground of negligence and quantum of compensation.
2. Heard the learned counsels appearing for parties and perused the judgment and award passed by the Tribunal.
3. The points that arise for consideration in the above appeals are:
1) Whether the finding of the Tribunal on negligence (on issue No.1) in holding that claimant has sustained injuries in the road traffic accident occurred on 21.01.2010 due to contributory negligence of 20% on the part of claimant in riding his motor cycle bearing registration No. KA-02- EF-6921 and 80% on the driver of the Tata Sumo bearing registration No.KA-41-0233 is sustainable in law?
2) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for reduction or enhancement?
4. Sri. Nagaraja Hegde, learned counsel appearing for the claimant submits that though the claimant was riding his motor cycle on the left side of the road slowly and carefully by observing the traffic rules, accident had occurred on account of the rash and negligent driving of the driver of Tata Sumo, the Tribunal without considering this has committed an error in holding that accident had occurred due to contributory negligence of 20% on the part of the claimant in riding his motor cycle and 80% on the part of driver of Tata Sumo. Regarding quantum of compensation, he submits the compensation awarded by the Tribunal is on lower side, therefore he prays for allowing the appeal filed by the claimant both on the ground of negligence as well as quantum of compensation.
5. Sri. B.A. Ramakrishna, learned counsel appearing for the insurer of Tata Sumo vehicle submits that accident had occurred on 21.01.2010 due to the rash and negligent riding of motor cycle by claimant himself and the complaint came to be filed after lapse of 14 days by implicating Tata Sumo vehicle in order to get compensation from the insurer of Tata Sumo vehicle.
6. Learned counsel submits that though Tribunal has observed that there has been no reason to condone the delay in lodging the complaint regarding accident, still committed an error in holding that accident had occurred due to contributory negligence of both the claimant and the driver of Tata Sumo.
7. Regarding quantum of compensation learned counsel submits there is no scope for enhancement of compensation and he prays for allowing the appeal filed by the insurer of Tata Sumo and dismissing the appeal filed by the claimant.
8. The claimant in order to prove his case that he had sustained injuries in the road traffic accident occurred on 21.01.2010 due to rash and negligent driving of Tata Sumo by its driver has examined himself as PW1 and produced copy of the FIR, complaint, mahazar, sketch and chargesheet which were marked as Ex.P1 to Ex.P5. The insurer of Tata Sumo in support of their contention that Tata Sumo was not involved in the accident and it was implicated for the purpose of getting compensation from the insurer of Tata Sumo has examined the driver of the Tata Sumo as RW1. RW1 did not deny the occurrence of accident by involvement of the motor cycle of the claimant and the Tata Sumo driven by him. He has deposed that accident had occurred due to negligent riding of the motor cycle by claimant himself and not on account of the negligent driving of Tata Sumo. The police after investigating the complaint have filed the chargesheet against the driver of the Tata Sumo. The spot sketch Ex.P4 would show that the claimant was proceeding on his motor cycle from CMH 100 feet road towards Indiranagara 80 feet road from west towards east, whereas Tata Sumo was proceeding from Indiranagara 80 feet road towards CHM 100 feet road in the north south direction. Accident had occurred at the junction of Indiranagara of 80 feet road and CMH 100 feet road. The Tribunal considering the police records and the oral evidence of the claimant examined as PW1 and the oral evidence of the driver of Tata Sumo examined as RW1 has rightly held accident had occurred due to contributory negligence of 20% on the claimant in riding his two wheeler and 80% on the part of the driver of Tata Sumo. I have carefully gone through the finding of the Tribunal on negligence and I do not see any error in the said approach of the Tribunal. Hence findings of the Tribunal on negligence is confirmed. Point No.1 is answered accordingly.
9. Regarding quantum: As per Ex.P17 wound certificate the claimant had sustained fracture of both bones of left leg. Injuries sustained and treatment underwent by the claimant are also evident from Ex.P6 discharge summary. Ex.P11 medical bill, Ex.P12 medical prescription, Ex.P13 in-patient record, Ex.P14 out-patient record, Ex.P15 and P16 X-rays and are supported by the oral evidence of the claimant and Doctor who were examined as PW1 and PW2.
10. PW2 Doctor in his evidence has stated that the claimant has suffered the disability of 33% to the left lower limb and 13% to the whole body. Considering the nature of the injuries sustained, a sum of Rs.80,000/- is awarded towards pain and suffering. As Rs.20,000/- awarded by the Tribunal towards medical expenses is as per the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement. He was treated as in patient for 4 days at Hosur Hospital, considering the same a sum of Rs.4,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs.1,500/- awarded by the Tribunal. The claimant claims to have been earning Rs.71,261/- per month by working as an Administrative Manager at Allgo Embedded System Pvt. Ltd and it is corroborated by Ex.P8 salary certificate issued by his employer. Ex.P9 leave certificate issued by his employer would show that the claimant had availed the said leave for treatment. The finding of the Tribunal that claimant had not placed material to substantiate that he had availed leave from 22.01.2010 to 23.03.2010 is not correct. Therefore, a sum of Rs.1,42,500 is awarded towards loss of income during laid up period as against Rs.40,000/- awarded by the Tribunal.
11. Though learned counsel appearing for the claimant contends that claimant after sustaining injuries could not continue his job and he discontinued his job. The said contention of the claimant is not substantiated either by producing termination letter or examining the employer of the claimant. Even nature of injuries i.e., fracture of both bones on left leg sustained by the claimant would not suggest that claimant could not continue his employment. Therefore, awarding compensation towards loss of future income does not arise. Nevertheless, nature of injuries sustained by the claimant and disability stated by the doctor at 33% to the limb and 13% to the whole body suggest that he has to bear with the said disability for the rest of his life and has to undergo certain amount of discomfort in his future life. Therefore, justice would be met if a sum of Rs.1,00,000/- is awarded towards loss of permanent disability as against Rs.40,000/- awarded by the Tribunal and it is awarded. A sum of Rs.20,000/- is awarded by the Tribunal towards future medical expenses for removal of implants is just and proper and it does not require enhancement. Thus compensation awarded by the Tribunal is reassessed as under:
Laid up period = Rs.1,42,000/-
5) Permanent disability and Amenities = Rs.1,25,000/-
6) Future medical expenses = Rs. 20,000/-
Total Rs.3,91,000/-
Less: Compensation awarded by the Tribunal = Rs.2,61,500/-
Additional Compensation = Rs.1,29,500/-
12. From the additional compensation, after deducting 20% towards negligence contributed by the claimant, the claimant is entitled for 80% of additional compensation amounting to Rs.1,29,500/-.
13. Accordingly, appeal is allowed in part.
Judgment and award dated 01.10.2011 passed in MVC No.5674/2010 by MACT, Bengaluru stands modified. The claimant is entitled for an additional compensation of Rs.1,29,500/- with interest at 6% p.a from date of claim petition till the date of its realization.
14. Insurer is directed to deposit the amount with interest within two months from the date of receipt of copy of this order and it shall be released to the claimant in terms of the award of the Tribunal.
15. In view of my findings on negligence and quantum of compensation MFA No.2446/2012 preferred by the insurer stands dismissed.
16. The amount deposited by the insurance company in their appeal is ordered to be transmitted to the Tribunal for disbursement in favour of the claimant in terms of the award of the Tribunal.
In view of dismissal of the appeal, the IA does not survive for consideration and the same stands dismissed.
No order as to cost.
SD/- JUDGE LL