IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.1857 OF 2012 [MV] BETWEEN Mithun Kumar Achar Aged about 26 years s/o Mahabala Achar r/a Near Veereshwara Temple, Gangoli Village Kundapura Taluk Udupi Dist. ... Appellant [By Sri Thejas Rai K and Smt.Savitha Shetty, Advocates] AND 1. Krishnanda Chatra 45 years, s/o Govinda Chatra r/o Duragamba Motors Hangalur, Kundapura Taluk – 576201 Udupi District.
2. The new India Insurance Company Ltd., Branch Office, Pushpa Building Main Road, Kundapura - 576 101, Udupi Dist. ... Respondents [By Sri C V Kumar, Advocate for Smt.Bhushani Kumar, Advocates for R1, Sri E I Sanmathi, Advocate for R2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 16.9.2011 passed in MVC No.1144/2008 on the file of the Senior Civil Judge and Additional Motor Vehicle Accident Claims Tribuna, KUndapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the injured/claimant in MVC No.1144/2008 seeking enhancement of compensation, wherein the Tribunal computed a total compensation of Rs.6,74,535/- for the injuries sustained by him in a road traffic accident and by apportioning the negligence at the ratio of 75:25 on the part of the claimant and the driver of the bus, held that respondent Nos.1 and 2 before the Tribunal are jointly and severally liable to pay the compensation of Rs.1,68,634/- to the claimant with interest at 6% p.a. from the date of petition till realization.
2. The brief facts of the case are that on 22.6.2008 at about 3.35 p.m, the appellant while proceeding on his motor cycle bearing Regn. No.KA-20/J-9035 from Udupi towards Kundapura, near Hanglur village, opposite to Durgamba Garage, NH-17, a bus bearing Regn. No.KA- 20/A-3422 driven by its driver in a rash and negligent manner, came from Kundapura side and dashed to the motor cycle. On account of the said accident, the appellant sustained grievous injuries. Immediately thereafter he was shifted to Yenapoya Hospital, Mangalore and he was treated as an inpatient in the said hospital. The several injuries were treated and he also took treatment in NR Acharya Hospital, Koteshwara. It is the further case of the appellant that he was aged about 22 years and he was earning a sum of Rs.6,000/- p.m. by doing coolie. On account of the accident, he suffered permanent disability etc.
3. The appellant filed a claim petition seeking a total compensation of Rs.20,00,000/-. Before the Tribunal, he got examined himself as PW1 and examined two other witnesses as PWs.2 and 3 and got marked Exs.P1 to P183. The claim petition was contested by the Insurance Company and on behalf of the respondents, Exs.R1 and R2 were marked.
4. The Tribunal after considering the evidence and material on record held that the appellant is entitled for a total compensation of Rs.6,74,535/- and further held that there is contributory negligence on the part of the appellant to an extent of 75% and considering the ratio of negligence contributed by the claimant, he is entitled for 25% out of the said compensation. Hence, the Tribunal awarded a sum of Rs.1,68,634/- as compensation together with interest at 6% p.a. from the date of petition till realization.
5. The contention of the appellant is that the Tribunal was not proper in holding that there is contributory negligence on the part of the appellant. On the otherhand, the accident occurred on account of rash and negligent driving by the driver of the bus in question. Further that, the Tribunal erred in taking the income of the appellant at Rs.3,000/- p.m. which is on the lower side.
6. Learned counsel for the 2nd respondent – Insurance Company justified the compensation awarded by the Tribunal submitting that the Tribunal after considering the entire material on record has rightly come to the conclusion that there was contributory negligence on the part of the appellant to an extent of 75%. He further submits that the compensation awarded is also just and reasonable, which does not call for any interference.
7. It is the case of the appellant that on 22.6.2008 at about 3.35 p.m. while he was riding the motor cycle bearing Regn. No.KA-20/J-9035 and proceeding from Udupi towards Kundapura and when he reached near Hanglur village, Opposite to Durgamba Garage, NH-17, a bus bearing Regn. No.KA-20/A-3422 driven by its driver from Kundapura side came in a rash and negligent manner and dashed to the motor cycle, on account of which, he sustained grievous injuries.
8. The contention of respondent Nos.1 and 2 before the Tribunal is that the driver of the bus bearing Regn. No.KA-20/A-3422 was proceeding towards Kundapura very slowly by observing all the traffic rules and after putting on indicator and also giving hand signal, the driver took a right turn so as to enter into Durgamba Garage, at that time the appellant who was riding the motor cycle in a high speed and in a rash and negligent manner, lost control and came on the wrong side and dashed against the bus. The Tribunal placing reliance on the evidence of PW1 and the spot mahazar at Ex.P3, came to the conclusion that the ratio of negligence of the appellant and the driver of the bus is at 75 : 25.
9. In the evidence of PW1, it is stated that he was coming from Udupi towards Kundapura and collision between the motor cycle and bus took place near the left side rear door. The accident took place in front of Durgamba Garage. He has denied the suggestion put him that the bus driver gave signal to turn towards right side. The Tribunal has come to the conclusion that the driver of the bus had almost crossed the road while taking right turn and then the appellant himself came and dashed against the rear left side of the bus and therefore held that due to the negligence of the appellant, the accident occurred. Further, it is observed that the evidence of PW1 and the spot mahazar shows that the accident occurred on the left side of the road while coming from Udupi side and since the bus was proceeding from Kundapura towards Udupi and in order to go to Durgamba Garage situated at Hanglur village on right side of the road, while proceeding towards Udupi and while taking right turn, the accident occurred.
10. It is relevant to see that the driver of the bus has not been examined by the respondents. Even otherwise, the contention of respondent Nos.1 and 2 itself is that the driver of the bus was proceeding from Kundapura to Udupi and while taking the right turn so as to enter into Durgamba Garage situated at Hanglur village, the motor cycle came from opposite direction in a rash and negligent manner and dashed against the bus. Though it is contended that the driver was driving the bus slowly and only after giving the hand signal, took a right turn to enter into Durgamba Garage, however, as noted above the driver has not been examined to establish the same. On the other hand, PW1 has denied the same. Admittedly, the accident occurred on NH-17 and the fact remains that the bus driver in question was proceeding from Kundapura towards Udupi, he took right turn to enter into Durgamba Garage and at that time, the accident took place. Therefore, the finding of the Tribunal attributing contributory negligence on the part of appellant to an extent of 75% is not acceptable. However, it cannot be said that the appellant was riding the motor cycle slowly and there is no contributory negligence on his part. The accident took place on the left side of the road towards Udupi. The appellant dashed against the bus near its rear side and it shows that he was also responsible to some extent in causing the accident. Therefore, I am of the view that the ratio of negligence on the part of the appellant/ rider of the motor cycle and driver of the bus could be held at 25 : 75.
11. The appellant was aged about 22 years.
According to him he was working as coolie and earning more than Rs.6,000/- per month. He has examined PW2 to prove the income. PW2 has deposed that the appellant was working as a Mechanic Fitter in his wood industry and he was paying Rs.6,000/- per month as salary. Apart from the oral testimony, there is no other satisfactory evidence to hold that the appellant was earning a sum of Rs.6,000/- p.m. or more. However, considering the fact that the accident is of the year 2008, I am of the view that the notional income of the appellant could be taken as Rs.4,500/- p.m. The appropriate multiplier applicable is 18. Further, the Tribunal has taken the disability to the whole body at 50%, considering the medical evidence on record. According to PW3 and the disability certificate – Ex.P118, the appellant has suffered neurological deficiency in his left hand. He has lost strength to lift, grip and he could not do any work with the left hand. The disability was assessed at 90% to the left hand though it is disputed by the learned counsel for the respondents. Considering the medical evidence, the disability taken at 50% to the whole body is just and proper. In view of the same, the appellant is entitled for a sum of Rs.4,86,000/- (4,500 X 12 X 18 X 50%) towards loss of future income as against Rs.3,24,000/- awarded by the Tribunal. The compensation awarded towards loss of income during the laid up period is enhanced from Rs.36,000/- to 54,000/-. The compensation awarded under other heads are just and reasonable and does not require any interference. Hence, the claimant is entitled for a total compensation of Rs.8,54,535/- as against Rs.6,74,535/- computed by the Tribunal. Considering the ratio of negligence contributed by the appellant, he is entitled for 75% out of the aforesaid compensation. Therefore, the appellant is entitled for a sum of Rs.6,40,901/- which is rounded off to Rs.6,41,000/- Hence, I pass the following:
ORDER Appeal is partly allowed.
The judgment and award dated 16.9.2011 passed in MVC No.1144/2008 on the file of the Senior Civil Judge and Additional Motor Vehicle Accident Claims Tribunal, Kundapura, is hereby modified.
The appellant/claimant is entitled for a total compensation of Rs.6,41,000/-, which is 75% of the total compensation awarded, with interest at 6% p.a.
Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
Respondent No.2 shall deposit the amount within a period of four weeks from the date of receipt of copy of this order.
Sd/- JUDGE Bkm