IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.495 OF 2017 (MV) BETWEEN Mrs. Kalyani @ Kalyani Poojarthi W/o late Narayana Poojary Aged about 82 years R/at Door No.1-9, Adka House Kotekar Village, Sumeshwara Post Mangaluru Taluk, D.K. – 575 101. …Appellant (By Sri. G. Ravishankar Shastry, Advocate) AND 1. Mr. Abdulla M.T. S/o Ibrahim K.K. Major Residing at H.No.4-274 Opp: High School Kuniya Periya Post Kasargod, Kerala State Pin – 671 316.
2. The National Insurance Co. Ltd. Div No.10, Flat No.101-106 BMC House, Connaught Place New Delhi – 110 001 Represented by its Divisional Office National Insurance Co. Ltd. 1st Floor, Emjays Building Opp. Nethravathi Building Balmatta, Mangalore Taluk, D.K. Represented by Divisional Manager Pin – 575 001. … Respondents (By Sri. R. Jaiprakash, Advocate for R2 R1 – Served) This appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 14.11.2016 passed in MVC No.1085/2015 on the file of the IV Additional District Judge, Member, MACT, Dakshina Kannada, Mangalore, party allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT This appeal has been filed by the appellant/claimant challenging the impugned judgment and award dated 14.11.2016 passed by the Court of IV Additional District Judge and Member, MACT, Dakshina Kannada, Mangalore (for short ‘the Tribunal’), in M.V.C.No.1085/2015, awarding a sum of Rs.87,000/- together with interest at 6% p.a. from the date of petition till its deposit in the Tribunal to the petitioner towards the injuries sustained by the appellant- claimant in a road accident that occurred on 06.04.2015.
2. Though the matter is listed for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
3. Both the counsels submit that the occurrence of accident and the liability as well as the coverage of the policy of the offending vehicle by the Insurance company are not in dispute and this appeal is restricted to quantum of compensation awarded by the Tribunal as well as the correctness of the findings of the Tribunal that 25% of the award amount has to be deducted towards ‘Contributory Negligence’ on the part of the appellant.
4. The learned counsel appearing on behalf of the appellant/claimant submits that the Tribunal has committed a grave and serious error of law, facts and jurisdiction in coming to the conclusion that the appellant was guilty of contributory negligence and 25% of the compensation amount was liable to be deducted on account of contributory negligence on the part of the appellant. In this context, he invite my attention to the un-impeached evidence of the appellant-PW.1 as well as the spot mahazar at Ex.P5 and spot sketch at Ex.P6 which would clearly establish that the appellant was not guilty of contributory negligence. It was also contended that despite the un-impeached evidence of the appellant, respondent No.1 has not adduced contra/rebuttal evidence either of the driver of the offending vehicle or any other evidence in order to establish that there was contributory negligence to an extent of 25% on the part of the appellant. It is therefore contended that the Tribunal has misread, misconstrued and misinterpreted the material on record and thereby, came to the conclusion that the appellant was guilty of contributory negligence and assessed the contributory negligence at 25% and held that 25% of the compensation is liable to be deducted from the compensation amount payable to her. It was also contended that insofar as quantum of compensation concerned, the Tribunal has committed an error in awarding only a sum of Rs.20,000/- towards ‘pain and suffering’ without considering or appreciating the nature of injuries sustained by the appellant which included a fracture. It was also submitted that a sum of Rs.15,000/- awarded in favour of the appellant towards ‘loss of amenities’ is highly meager, inadequate and the same needs to be enhanced by this Court. He therefore requests for modification of the impugned judgment and award passed by Tribunal.
5. Per contra, learned counsel appearing on behalf of respondent No.2-Insurance company would support the impugned judgment and award passed by the Tribunal and sought to dismiss the appeal.
6. I have given my cautious consideration to the rival submissions and perused the material on record including the lower court records which were summoned by this Court.
7. The following points would arise for the consideration in the present appeal:
1. Whether the Tribunal was justified in coming to the conclusion that the appellant was guilty of contributory negligence to an extent of 25% as held by the Tribunal?
2. Whether the appellant is entitled for enhancement of compensation and if so to what extent?
8. Point No.1: As rightly contended by the learned counsel for the appellant, the Court below has committed an error and failed to properly appreciate the material available on record coupled with the un- impeached evidence of the appellant. The material on record also establishes that the respondent has not adduced contra/rebuttal evidence to establish that there was contributory negligence on the part of the appellant. Therefore, the Tribunal has committed an error in coming to the conclusion that the appellant was guilty of contributory negligence to an extent of 25%. The material on record especially un-impeached evidence of PW.1 coupled with the documentary evidence on record would clearly establish that the driver of the offending vehicle owned by respondent No.1 and insured by respondent No.2 was solely responsible for rash and negligent driving which resulted in the accident and causing injuries to the appellant. The reasons assigned by the Tribunal at paragraph No.9 of the impugned judgment and award is clearly fallacious and contrary to the material on record which calls for interference at the hand of this Court.
9. In view of the material on record, facts and circumstances narrated above, I am of the considered opinion that the entire accident was on account of rash and negligent driving of the driver of offending vehicle that there was no contributory negligence on the part of the appellant which warrants deduction of 25% from the compensation amount as wrongly held by the Tribunal.
10. Under this circumstances, point Nos.1 and 2 are answered in favour of the appellant holding that the appellant was not guilty of contributory negligence and she is entitled to the entire compensation awarded by the Tribunal.
11. Point No.2: Insofar as the quantum of compensation is concerned, as rightly contended by the learned counsel for the appellant the Tribunal has erred in awarding only a sum of Rs.20,000/- towards ‘pain and suffering’ to the appellant. In this context, it is relevant that having regard to the nature of injuries caused to the appellant coupled with the fact that she was aged about 80 years as on the date of accident, I deem it fit and proper to award an additional sum of Rs.10,000/- under this head. So also a sum of Rs.15,000/- awarded toward ‘loss of amenities’ is also inadequate and the same is requires to be enhanced by another sum of Rs.15,000/-. Accordingly, the appellant is entitled to an additional sum of Rs.25,000/- towards the aforesaid heads by way of enhanced compensation. The compensation awarded by the Tribunal under the other heads are just and proper and the same do not warrant interference by this Court. As stated above, the Tribunal has awarded total sum of Rs.1,16,000/- in respect of injuries sustained by the appellant in the accident in question and in view of my finding in point No.1, the appellant is not guilty of contributory negligence, hence, she would be entitled to the entire sum of Rs.1,16,000/- awarded by the Tribunal. Further, in view of my finding recorded in point No.2, the appellant would be entitled to an additional sum of Rs.25,000/- in the aforesaid heads. Accordingly, the appellant would be entitled to a total compensation of Rs.1,41,000/- as against Rs.87,000/- awarded by the Tribunal.
12. In view of the foregoing discussion, I pass the following;
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 14.11.2016 passed by the Court of IV Additional District Judge and Member, MACT, Dakshina Kannada, Mangalore in M.V.C.No.1085/2015 awarding compensation in a sum of Rs.87,000/- is hereby modified and thereby the appellant-claimant is entitled to enhanced compensation of Rs.54,000/- which shall carry interest at 6% p.a. from the date of petition till realization.
(iii) The apportionment and disbursement to be done as per the impugned judgment and award passed by the Tribunal.
Sd/- JUDGE NR/-