IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL M.F.A. NO.5856 OF 2010 (MV) BETWEEN:
JAYARAMA SHETTY S/O LATE SUBBANNA SHETTY, AGED ABOUT 59 YEARS, R/O MELMANE, 28, HALADY VILLAGE, KUNDAPURA TALUK.
…APPELLANT (BY SRI MAHESH KIRAN SHETTY, ADVOCATE) AND:
1. GOPALAKRISHNA KINI S/O LATE SRINIVASA KINI, AGED ABOUT 54 YEARS, R/O BELVE VILLAGE, KUNDAPURA TALUK.
2. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE PUSHPA BUILDING, MAIN ROAD, KUNDAPURA TALUK.
... RESPONDENTS (BY SRI SANTHOSH KOTARI, ADV., FOR R1 SRI S.N.ASWATHA NARAYAN, ADV., FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.05.2009 PASSED IN MVC NO.962/2006 ON THE FILE OF CIVIL JUDGE (SR.DN.) & MACT, KUNDAPURA, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been preferred by the appellant/claimant assailing the judgment and award passed by the Court of Civil Judge (Sr. Dn.) & MACT, Kundapura, (hereinafter referred to as ‘the Tribunal’ for short) in MVC.No.962/2006 dated 05.05.2009.
2. Though, this appeal is listed for admission, with consent, it has been heard finally.
3. For the purpose of convenience, the parties are referred to as per their ranking in the court below.
4. Brief facts leading to filing of the petition are that, on 22.05.2006 at about 1.00 p.m., the petitioner – Jayarama Shetty was going on his Motor Cycle bearing registration No.KA-20-NT-252/06-07 from Halady Pete towards his house on Bidkalkatte – Halady Road. When he came near Melmane cross of Halady Village, a Maruti Omni Car bearing registration No.KA-20-M-0987 came from the opposite direction from Bidkalkatte side towards Halady side, in a rash and negligent manner and dashed to his Motor Cycle. Due to the said impact, the petitioner fell down and sustained grievous injuries. Immediately, he was shifted to Sri Durga Hospital, Halady and after first aid, he was shifted to KMC Hospital, Manipal, for better treatment and therein, he was treated as an inpatient from 22.05.2006 to 30.06.2004 and thereafter, he has taken treatment as outpatient.
5. It is the specific contention of the petitioner that he has spent an amount of Rs.1,20,000/- for medical treatment, Rs.5,000/- for food and extra nourishment, Rs.6,000/- for nursing and attendant charges and Rs.5,000/- for conveyance. He further contended that he was hale and healthy prior to accident and he was working as an agriculturist/contractor and was earning Rs.10,000/- per month. Due to the said accidental injuries, he is unable to do his work and there is loss of income. In that light, he filed a claim petition claiming compensation.
6. On service of notice, respondent No.1 remained absent and hence, he was placed exparte and respondent No.2 - Insurance Company filed their written statement denying the averments made in the petition. He further contended that the driver of the Maruti Omni Car was driving the car slowly and carefully by observing all traffic rules and when the said vehicle reached near Melmane Cross, the driver of the said Car noticed a motor cycle coming from opposite direction in uncontrollable speed and the driver of the said Maruti Omni Car slowed down the speed of the same and took the same to the extreme left side of the road, but the rider of the Motor Cycle, who was in an inebriated condition dashed his motor cycle to Maruti Omni Car after coming to the wrong side of the road. It is further contended that the accident has taken place because of the fault of the rider of the motor cycle. It is further contended that if any liability is there on the respondent, the same is covered by the terms and conditions of the policy. On these grounds, he prays for dismissal of the petition.
7. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether the petitioner proves that on 22.05.2006 at about 1.00 pm., he was proceeding on a Motor Cycle bearing Reg.No.- KA-20-NT-252/06-07 on Bidkalkatte-Halady Road and at that time, near Melmane Cross of Halady Village, the driver of Maruti Omni bearing Reg.No.KA-20-M-0987 drove the same in a rash and negligent manner and dashed to the Motor Cycle and he fell down and sustained injures?
2. Whether the respondent No.2 proves that the petitioner has contributed his major negligence to this accident?
3. Whether the respondent No.2 proves that the driver of the Martuti Omni was not having valid and effective driving license to drove the same on the date of accident?
4. Whether petitioner is entitled for compensation? If so, to what amount and from whom?
5. What order or award?
8. In order to prove his case, petitioner got examined himself as PW-1 and got examined the Doctor as PW-2 and got marked the documents as Exs.P1 to 231. There is no oral evidence on behalf of the respondents. Respondent No.2 got marked the driving license as Ex.R1 and the insurance policy as Ex.R2.
9. After hearing the parties to the lis, the impugned order came to be passed, wherein the Tribunal has awarded compensation of Rs.2,78,900/-. By assailing the said judgment and award, the present appeal has been preferred.
10. The main contention of Sri Mahesh Kiran Shetty, learned counsel for the appellant is that the impugned order is contrary to law and evidence on record. The Tribunal has committed error by holding that the accident was solely because of rash and negligent act on the part of the rider of the Motor cycle. He further contended that the rider of the motor cycle has pleaded guilty before the Criminal Court on 13.11.2006 and the Additional Civil Judge (Jr.Dn.) and JMFC, Kundapura, has imposed a fine of Rs.1,500/- for the offences punishable under Sections 279 and 338 of IPC. He further contended that as could be seen from Ex.P.3 - spot mahazar, there is four feet length brake marks of Maruti Omni Car on the northern side of the road, which clearly indicates that the driver of the Maruti Omni Car was driving the said car rashly and negligently. He further contended that the compensation awarded on various heads are also on the lower side and hence, he prays for enhancement of the compensation awarded by the Tribunal.
11. Per contra, Sri S.N.Aswatha Narayan, learned counsel appearing for respondent No.2 – Insurance Company vehemently argued and contended that the Tribunal after considering the fact that the rider of the motor bike has fully contributed to the said accident and after considering all the evidence and material on record has come to a right conclusion by holding that the rider of the motor bike has suddenly crossed the road and the accident was beyond the control of the driver of the Maruti Omni Car. He further contended that the rider of the motor cycle was solely responsible for the said accident as rightly held by the Tribunal and there are no good ground to interfere with the order of the Tribunal. On these grounds, he prays for dismissal of the appeal.
12. As could be seen from the judgment and award of the Tribunal, and lower court records as per Ex.P.4 – wound certificate, the appellant/claimant has sustained the following injuries.
(i) Open fracture first metatarsal (Lt) foot.
(ii) Closed fracture of tibia and fibula.
And the Doctor who was examined as P.W.2 has stated in the evidence that two fingers of left leg of the claimant completely broken into pieces and it was impossible to rectify the same and the records also indicates that the appellant/claimant has been admitted in the hospital for 36 days.
13. Keeping in view the above said facts and circumstances, the Tribunal has awarded the compensation on following heads:
(a) Pain & suffering Rs. 45,000.00 (b) Medical Expenses Rs.1,17,646.10 © Special Diet, Nursing & Attendant Charges (d) Loss of income during treatment period (e) Loss of future income due to disability Rs. 5,400.00 Rs. 27,000.00 Rs. 71,280.00 (f) Loss of amenities Rs. 10,000.00 (g) Conveyance Charges Rs. 2,500.00 Total Rs. 2,78,826.10 It is rounded to Rs.2,78,900.00 14. As could be seen from the said judgment and award, though, the Tribunal has rightly awarded compensation under pain and suffering, medical expenses, special diet, nursing and attendant charges, loss of income during treatment period and loss of further income due to disability, but while awarding compensation under the head loss of amenities, it has awarded only Rs.10,000/-, which is on the lower side and the same requires to be enhanced. In that light, by taking into consideration the period of treatment and fracture and other injuries as stated above, I feel that if another sum of Rs.20,000/- is awarded under the head loss of amenities, it would meet the ends of justice and it is accordingly awarded.
15. The next contention taken up by the learned counsel for the appellant is that, the finding of the Tribunal regarding the rash and negligent driving by the rider of the motor cycle itself is wrong. As could be seen from the judgment and award, it clearly indicates that charge sheet came to be filed against the driver of Maruti Omni Car for the offences punishable under Sections 279 and 338 of IPC and even the spot mahazar also got marked as Ex.P.3. As could be seen from Ex.P.3 - spot mahazar, the said accident occurred near Melmane Cross of Halady Village and the said spot mahazar also clearly indicates that at the place of accident four feet length brake marks of Maruti Omni Car is there at northern side of the road and even though, all these material is available, the Tribunal has come to a wrong conclusion by holding that the rider of the motor bike has taken the motor bike suddenly to the right side and as a result of the same, accident has occurred.
16. The learned counsel for the appellant has made available the certified copy of the order sheet dated 13.11.2006 in C.C.No.2142/2006 of the Additional Civil Judge (Jr.Dn.) and JFMC, Kundapura, and the said record clearly indicates that the driver of the Maruti Omni Sri Umesh Kini has pleaded guilty of the offences punishable under Sections 279 and 338 of IPC and he has been convicted for the said offence and directed to pay a sum of Rs.1,500/- and the said fine amount has also been paid by him. When the said material is available, then under such circumstance, it would substantiate the fact that the driver of the Maruti Omni Car who was coming from Bidkalkatte side towards Halady side has contributed to the said accident and even he has not filed any counter complaint against the rider of the motor cycle. Under the said facts and circumstances, the finding given by the Tribunal to the effect that the rider of the motor bike himself has contributed to the said accident appears to be not correct and in this context, this Court can hold that the accident has occurred due to rash and negligent driving on the part of the driver of the Maruti Omni Car and he has contributed to the said accident. In that light, the finding given by the Tribunal on issue No.2 is liable to be set aside and accordingly, it has been set aside.
17. In view of the finding given above that the said vehicle has been insured with respondent No.2 - Insurance Company and Ex.R.2 certified copy of the Insurance Policy also clearly indicates that as on the date of the accident, the vehicle was insured with respondent No.2. Respondent No.2 is liable.
18. Keeping in view the above discussions, the appellant/claimant is entitled to an additional compensation of Rs.20,000/- with interest at 6% per annum. Accordingly, I proceed to pass the following ORDER i) The appeal is partly allowed.
ii) The impugned judgment and award passed by the Tribunal in MVC No.962/2006 is modified as indicated above.
iii) Respondent No.2 – Insurance Company is directed to deposit the compensation of Rs.2,78,900/- awarded by the Tribunal as well as the additional compensation of Rs.20,000/- awarded by this Court within a period of six months from the date of receipt of certified copy of this order.
(iv) Registry is directed to draw the award and send back the records forthwith.
Sd/- JUDGE PB