IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA M.F.A NO.6427/2012 (MV) BETWEEN:
MR. MOHAN BABU M.
S/O DHANANJAYA NAIDU M NOW AGED ABOUT 24 YEARS R/A NO.18, 2ND MAIN ROAD BALAJI NAGAR, ITTAMADGU BSK 3RD STAGE BANGALORE – 560 085.
(BY SRI. S. RAGHAVENDRA, ADV.,) AND:
1. THE MANAGER M/S. ORIENTAL INSURANCE CO. LTD DO-10, NO.213-217 NAGHAPRABHA CHAMBERS BANGALORE – 560 018 ...APPELLANT 2. SRI. HEMANTH KUMAR S/O CHIKKA NANJAPPA MAJOR, R/A NO.84 MAHESHWARI NAGAR VADDARAPALYA BANGALORE.
... RESPONDENTS (BY SRI. K.K. VASANTH, ADVOCATE FOR R1; NOTICE TO R2 DISPENSED WITH) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.09.2011 PASSED IN MVC NO.7891/2008 ON THE FILE OF THE VI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimant challenging the judgment and award passed by the Tribunal on the ground of negligence as well as on the ground of quantum of compensation awarded by the Tribunal.
2. Heard the learned counsel appearing for the respective parties and perused the judgment and award of the Tribunal including the records.
3. With the consent of learned counsel appearing for the parties, appeal is heard and disposed of finally.
4. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
5. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 14.09.2008 by involvement of a motorcycle bearing Registration No.KA-41-K-6874 (hereinafter referred to as ‘motorcycle’) a water tanker bearing Registration No.KA-05-C-2952 (hereinafter referred as ‘Water Tanker’), the points that arise for consideration in this appeal are:
a) Whether the finding of the Tribunal on negligence in holding that the accident occurred due to contributory negligence of 20% on the part of the rider of motorcycle and 80% on the part of the driver of the water tanker is just and proper?
b) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
Regarding negligence:
6. Sri.S.Raghavendra, learned counsel for the claimant-appellant submits that even though the claimant was riding his motorcycle on the left side of the road, slowly and cautiously, since the driver of the water tanker had parked the water tanker at the centre median of Ring Road, BSK 3rd Stage, Bengaluru opposite to Banashankari Steel Shop without giving any indicator or parking signal and at that relevant time, there was no street lights had to dash to the back portion of the said water tanker. As a result, he fell down and sustained severe injuries and police have rightly filed the charge sheet against the driver of the water tanker. The Tribunal without considering this aspect of the matter has committed an error in holding that accident occurred due to contributory negligence of 20% on the part of the claimant in riding his motorcycle and 80% on the driver of the water tanker.
7. Learned counsel appearing for the respondent-insurance company submits that the claimant in his evidence has admitted that the width of the road is 30 feet and the water tanker was parked in the space of about 10 feet and there was space of 20 feet and claimant could have easily passed through in the said 20 feet space. However, the Tribunal considering the oral and documentary evidence on record and the admission made by PW.1 during his cross examination that though there was free space of 20 feet for plying his vehicle and he had noticed the parking of water tanker from the distance of about 180 feet where he stopped his motorcycle at the traffic signal was justified holding that accident occurred due to contributory negligence of 20% on the part of the claimant in riding his motorcycle and 80% on the part of the driver of the offending water tanker.
8. I have carefully examined the findings of the Tribunal on negligence and do not see any infirmities warranting interference of this Court. Therefore, the finding of the Tribunal on negligence is confirmed and point No.1 is answered accordingly.
Regarding quantum:
9. Learned counsel for the petitioner submits the compensation awarded by the Tribunal is not just and reasonable. It is on the lower side and therefore it is required to be enhanced. Hence, he prays for allowing the appeal both on the ground of negligence as well as quantum.
10. As per Ex.P6-wound certificate claimant had sustained following injuries:
i) head injury.
ii) fracture anterior wall of maxilla, iii) right zygomatic fracture, iv) fracture C6 body and lacerated wound from Nasolabial fold to right tempero parietal region.
The doctor has opined that injury Nos.1 and 2 are grievous in nature and injury No.5 is simple in nature. Injury sustained and treatment underwent by the claimant are also evident from Ex.P7-discharge summary, Ex.P8-CT Scan report and Ex.P13- photos with negative Ex.P10 – CT Scan films and corroborated by the oral evidence of the claimant and doctor who were examined as Exs.P1 and P2 respectively.
11. PW.2 has deposed in his evidence that he is working as RMO at K.R. Hospital. On 14.09.2008, claimant was admitted to the said hospital with the history of RTA and on clinical examination, he has noted head injury, fracture of anterior wall of maxilla, right zygomatic fracture, fracture C6 body and lacerated wound from Nasolabial fold to right tempero parietal region. He was treated by team of doctors and on 16.09.2008 he underwent surgery for fracture of facio maxillary bones and was discharged on 25.09.2008 with an advise for follow up treatment. He has further deposed that he examined the claimant on 01.10.2009 and at that time, claimant complains of right sided facial weakness, loss of smell and taste, head ache and insomania and amnesia. On clinical examination and on the basis of AIMS/WHO/DGFS guidelines, he has assessed the permanent disability of 35.2%.
12. Considering the nature of injuries sustained by the claimant, a sum of `1,00,000/- is awarded towards pain and suffering as against `80,000/- awarded by the Tribunal.
13. The claimant has produced the medical bills for `2,35,000.75ps. The medical bills produced at Exs.P.9 to P.35 are corroborated by medical prescriptions produced at Exs.P10 and 20. He was treated as inpatient for a period about 12 days. Considering the medical bills produced for `2,35,000.75ps and duration of treatment, a sum of `2,50,000/- is awarded towards medical and incidental charges as against `2,35,075/- awarded by the Tribunal. He claims to have been earning `8,000/- per month by doing grill work and he has produced the salary certificate at Ex.P14 issued by Ramesh Enterprises. Neither the author of Ex.P14 nor the employer of the claimant is examined. In the absence of proof of income, considering the age of claimant as 21 years, year of accident as 2008 and avocation as grill worker, his income could be assessed at `5,000/- per month as against `4,000/- assessed by the Tribunal. The multiplier applicable to his age group is ‘18’. PW.2 – doctor has stated in his evidence that claimant has suffered permanent disability of 35.2% but he has not stated the percentage of disability caused to the limb and to the whole body. Considering the nature of injuries, justice would be if the disability is taken at 15%. If so, the ‘loss of future income’ works out to `5,000x12x18x15/100 = `1,62,000/- and it is awarded as against `1,03,680/- awarded by the Tribunal.
14. Considering the nature of injuries sustained by the claimant, the disability stated by the doctor and an account of discomfort, he has to undergo in his future life, a sum of `40,000/- awarded by the Tribunal towards loss of amenities is just and reasonable.
15. Considering the nature of injuries, the claimant must have taken rest at least for a period of four months. Therefore, a sum of `20,000/- is awarded towards loss of earning during laid up period.
16. Thus, the compensation awarded by the Tribunal is re-assessed as under:
17. In view of finding on negligence, after deducting 20% from the additional compensation towards negligence contributed by the claimant, he is entitled for 80% of `96,920/- amounting to `77,536/- as additional compensation.
18. Accordingly, the following order is passed:
ORDER a) Appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove.
b) The finding of the Tribunal on negligence is confirmed.
c) The claimants are entitled for an additional compensation of Rs.77,536/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
d) The insurer of water tanker bearing registration No.KA-05-C-2952 is liable to pay 80% of the compensation awarded by the Tribunal and the additional compensation awarded by this Court together with interest at 6% p.a from the date of claim petition till the date of realization within two months from the date of receipt of a copy of this judgment and the same is ordered to be released in favour of the claimant.
No order as to costs.
Sd/- JUDGE BS