IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.11732 OF 2012 [MV] BETWEEN K. NARAYANA GOWDA, AGED ABOUT 46 YEARS, S/O. LATE BORE GOWDA, R/O. KODI HOUSE, KILLOR POST MITHABAGILU VILLAGE, BELTHANGDAY TALUK, UDUPI TQ AND DISTRICT-576 112. ... APPELLANT [BY SMT. SONIA VERMA, ADVOCATE FOR SRI. THEJAS RAI K., ADVOCATE] AND 1. ROBERT JAMES SAANTHUSH, S/O. JARNATEO SAANTHUSH, R/O. GUMMALA HOUSE, JOSEPH COLONY BELVE VILLAGE, KUNDAPUR TALUK D.K.
2. BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., BRANCH KANCHAN TOWERS, NH 17 KUNDAPURA. ... RESPONDENTS [R1-SERVED, SRI. O.MAHESH, ADVOCATE FOR R-2] * * * THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.08.2012 PASSED IN MVC NO.1113/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, BELTHANGADY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of both the learned counsel, appeal is taken up for final disposal.
2. The appellant/claimant has preferred this appeal, seeking enhancement of compensation awarded by the Tribunal in M.V.C. No.1113/2010 dated 17.08.2012, whereby a total compensation of Rs.58,885/- was awarded with 6% interest per annum and considering the contributory negligence, it was directed that respondent Nos.1 and 2 shall pay 50% of the compensation amount i.e., Rs.29,443/- jointly and severally.
3. I have heard the learned counsel for the appellant as well as learned counsel appearing for respondent No.2-
Insurance Company. Respondent No.1 is served and unrepresented.
4. The brief facts of the present case are that;
On 12.02.2010 at about 8.00 a.m., the appellant/claimant was riding the motorcycle bearing reg. No.KA-21/H-8767 and when he was proceeding towards a petrol pump near Belthangadi bus stand, at that time, a Maruti Omni bearing reg. No.KA-20/A-7930 driven by its driver in a high speed and rash and negligent manner dashed against the motorcycle and on account of the said accident, the appellant fell down on the road and sustained injuries all over the body. Immediately thereafter, he was shifted to Sri. Dhamodar Hospital, Belthangadi and admitted as an inpatient from 12.02.2010 to 09.03.2010 and took follow up treatment for more than 5 months in the said hospital.
It is the case of the claimant that he was an agriculturist by profession and he was earning a sum of Rs.5,000/- p.m. and due to the accident, he sustained permanent disability and is not able to attend the agricultural chores. Further, he spent a sum of Rs.75,000/- towards medical expenses and he required another sum of Rs.50,000/- for future treatment.
The claimant filed the petition, seeking total compensation of Rs.1,50,000/- for the injuries sustained by him in the aforesaid road traffic accident.
Before the Tribunal, the claimant got himself examined as P.W.1 and got marked Exs.P1 to 12. On behalf of the respondents, Ex.R1-Insurance Policy was got marked.
The Tribunal after considering the evidence and material on record, granted a total compensation of Rs.58,885/- as follows:
Particulars Amount in Rs.
In so far as the liability is concerned, the Tribunal has come to the conclusion that the accident occurred due to the negligence on the part of the drivers of both the vehicles and hence held that respondent Nos.1 and 2 therein are liable to pay 50% of the compensation amount i.e., Rs.29,443/- jointly and severally.
5. Assailing the impugned Judgment and Award passed by the Tribunal and seeking enhancement of the compensation, learned counsel appearing for the appellant submitted that the Tribunal has erroneously come to the conclusion that there is a contributory negligence on the part of the claimant, who was riding the motorcycle. According to the learned counsel for the appellant, the accident was solely on account of rash and negligent driving by the driver of the Maruti Omni vehicle. It is further contended that the compensation awarded under different heads are also meagre, which deserves to be enhanced.
Per contra, learned counsel appearing for respondent No.2/Insurance Company contended that the Tribunal after rightly considering the spot sketch-Ex.P6 has come to the conclusion that even the rider of the motorcycle was also negligent and responsible in causing the accident as the said motorcycle was on the extreme right side of the road when the accident took place and therefore, he submits that the Judgment and Award passed by the Tribunal in so far as the contributory negligence is concerned does not call for any interference. He would contend that the Tribunal has awarded a sum of Rs.25,000/- towards injury, pain and suffering and the claimant has failed to examine any doctor. In view of the same, the compensation awarded under the said head is just and proper. Even in so far as the income of the claimant is concerned, it is the pleading of the claimant himself that he was earning a sum of Rs.5,000/- p.m. However, he has not adduced any evidence to show that he was earning such income and therefore, the Tribunal has taken the income of the claimant as Rs.4,000/- p.m. and hence, he submits that the income taken by the Tribunal is just and proper and accordingly, seeks to dismiss the appeal.
6. The perusal of the wound certificate at Ex.P2 shows that the claimant has suffered the following injuries:
1. Deformity (L) hip.
2. Laceration (L) forehead 1 x 1 cm.
3. Laceration (L) knee 3 x 2 cm.
4. Laceration (L) leg 6 x 2 cm.
5. Laceration (R) leg 4 x 4 cm.
6. Abrasion (L) hand little finger 1 x 1 cm.
7. Abrasion (R) big toe 1 x 1 cm.
8. Abrasion lower lip.
The doctor has opined that injury Nos.1, 5 and 6 are grievous in nature. The doctor is not examined. However, the injuries sustained and stated in Ex.P2 are not disputed by respondent No.2. Injury No.1 is shown as deformity of left hip. Considering the nature of the injuries sustained by the claimant, the sum of Rs.25,000/- awarded towards injury, pain and suffering is on the lower side and accordingly, the same is enhanced to Rs.50,000/-.
7. The Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities in future life. The same is enhanced to Rs.15,000/-. The Tribunal has awarded a sum of Rs.14,552/- towards medical expenses, which is based on medical bills, which are marked at Ex.P9. Hence, no interference is called for.
8. According to the claimant, he was an agriculturist and was earning an income of Rs.5,000/- p.m. The Tribunal has taken the income of the claimant as Rs.4,000/- p.m. and awarded a sum of Rs.3,333/- towards loss of earning during treatment. However, taking into consideration that the accident has occurred in the year 2010, the income of Rs.5,000/- p.m. is the reasonable income, which has to be taken. Admittedly, the claimant was in the hospital as an inpatient and taken treatment for about 25 days and hence, a sum of Rs.4,125/- is awarded as against Rs.3,333/- towards loss of earning during treatment. Considering the nature of the injuries sustained by the claimant and the period of treatment he taken as an inpatient, the compensation awarded under conveyance, nourishment and attendant charges is enhanced from Rs.6,000/- to Rs.10,000/-. Hence, the claimant is entitled for a total compensation of Rs.93,677/- as against Rs.58,885/- awarded by the Tribunal.
9. It is the contention of learned counsel for the appellant that the accident occurred on account of rash and negligent driving by the driver of the Maruti Omni vehicle in question and therefore, the finding of the Tribunal that the appellant is also responsible in causing the accident is erroneous.
10. I have perused the sketch at Ex.P6. The same goes to show that the accident occurred on the extreme right side of the road leading from Ujire to Belthangadi. Admittedly, the claimant was riding the motorcycle and he was proceeding to the petrol pump, which was situated on the right side of the road towards Belthangadi. In view of the fact that the accident has occurred on the right side of the road and the motorcycle was on the wrong side, the finding of the Tribunal that there was a contributory negligence on the part of the rider of the motorcycle cannot be held to be erroneous. Accordingly, the contention of the learned counsel for the appellant is rejected.
11. For the foregoing reasons, the appeal is allowed in part. The Judgment and Award dated 17.08.2012 passed by the Senior Civil Judge, MACT., Belthangady, in M.V.C. No.1113/2010 is modified. A total compensation of Rs.93,677/- is awarded with interest at the rate of 6% p.a. from the date of the petition till payment.
Respondent Nos.1 and 2 shall pay 50% of the compensation amount i.e., Rs.46,839/- with interest at 6% p.a. as against Rs.29,443/- awarded by the Tribunal.
Respondent Nos.1 and 2 shall deposit the balance amount within a period of four weeks from the date of receipt of copy of this Judgment.
Sd/- JUDGE.
Ksm*