IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.3343 OF 2014 (MV-I) BETWEEN:
SMT.PUSHPA, W/O. NAGARAJ, AGED ABOUT 43 YEARS, RESIDING AT NO.37, 1ST CROSS, DAYANANDANAGAR, BHASHYAMNAGAR, BANGALORE. ... APPELLANT (BY SRI H B SOMAPUR, ADVOCATE) AND:
1. M/S FUTURE GENERAL, INDIA INSURANCE CO. LTD, BY ITS MANAGER, PASADENA, NO.18/1, (OLD NO.125/A), 3RD FLOOR, ASHOKA PILLER ROAD, 1ST BLOCK, JAYANAGAR, BANGALORE – 82.
2. SMT.RANI, MAJOR, W/O VASU.C R/AT, NO.95/C, 9TH MAIN, SHIVANAGAR, BANGALORE – 10. ... RESPONDENTS (BY SRI O MAHESH, ADVOCATE FOR R1; VIDE ORDER DATED: 20.11.2017 NOTICE TO R2 – DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.10.2013 PASSED IN MVC NO.7442/2011 ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE AND XIX ADDITIONAL CMM, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, ASHOK G NIJAGANNAVAR, J., DELIVERED THE FOLLOWING:
JUDGMENT This is a claimant’s appeal for seeking enhancement of compensation and modification of the judgment and award passed in MVC No.7442/2011 by the XXI Additional Small Causes Judge and XIX ACMM and MACT, Bengaluru, (SCCH-23) (hereinafter referred to as ‘the Tribunal’ for the sake of brevity).
2. The facts leading to this appeal are that on 09.12.2011 morning at about 6.30 a.m. the petitioner was crossing the Vatal Nagaraj Road from RRR Kalyana Mantapa proceeding towards Railway Track Bridge at Okalipuram. At that time, the driver of the tempo bearing registration No.CAK 2114 came on the same road from Majestic side towards Rajajinagar entrance and dashed against the petitioner. Due to the said impact the petitioner fell down and sustained grievous injuries. The petitioner has sustained fracture of the right leg, left leg, fracture of spinal cord and other grievous injuries. She was shifted to K C General Hospital, where she has taken treatment for one and a half month. On account of the grievous injuries sustained she is unable to carry out the day to day works and also the coolie work, thereby she has been deprived of her income. The accident was due to the rash and negligent driving of the driver of the tempo. With these assertions the petitioner has claimed the compensation.
3. On filing of the claim petition and on service of notice the respondent No.2 namely, the owner of the tempo has not appeared before the Tribunal, thus she has been placed ex-parte. Respondent No.1 insurance company has appeared through its counsel and has filed objections denying the averments made in the claim petition and has also specifically contended that alleged accident was due to the negligence of the claimant herself, as such, the petition is liable to be rejected.
4. On the basis of the rival pleadings the Tribunal has framed the following issues:
i. Whether the petitioner proves that, she/he had sustained grievous injuries in RTA that alleged to have been occurred on 09.12.2011 at about 6.30 a.m. on Vattal Nagaraj road, near R.R.R. Kalyana mantapa, Okalipuram, Bangalore due to rash and negligent driving of Tempo bearing Reg.No.CAK-2114 by its driver as alleged in the petition?
ii. Whether the petitioners prove that, they are entitled for compensation ? If so, at what quantum and from whom?
iii. What order or award?
5. In order to substantiate the contention, the petitioner injured in MVC No.7442/11 has got examined as PW.1 and fourteen documents were marked as EXs.P1 to P.14. The doctor Dr. J Kabilar Mannan who has treated the petitioner is examined as PW.5. The documents are marked as EXs.P23 to P26. The respondent No.1 Insurance Company has examined the driver of the tempo as RW.1, but no documents are marked on their behalf.
6. On appreciating the oral and documentary evidence placed on record the Tribunal has come to the conclusion that there was contributory negligence by the petitioner to an extent of 20% and has further awarded a compensation of Rs.2,51,600/- along with interest at the rate of 6% p.a. from the date of petition till the date of realization.
7. Being aggrieved by the judgment and award passed by the Tribunal, the petitioner has preferred an appeal contending that the finding given by the Tribunal regarding the contributory negligence by the petitioner is not proper and justified. The amount of compensation awarded under several heads is too meager and disproportionate. Despite there being evidence to show that the accident was due to the rash and negligent driving of the driver of the tempo, the Tribunal has committed an error in fastening the liability on the petitioner claimant to an extent of 20%. Thus the said finding needs to be set aside. There are valid grounds for enhancement of compensation.
8. Heard learned counsel for the appellant and learned counsel for the respondent Insurance company. Perused the records and judgment of the Tribunal.
9. The present appeal is mainly on two grounds :
(i) regarding the liability that has been fastened on the injured/claimant to an extent of 20%;
(ii) The quantum of compensation awarded by the Tribunal.
10. As far as the first point is concerned, it is necessary to re-appreciate the evidence placed on record to ascertain whether the finding given by the Tribunal in fastening the liability on the claimant on the ground of contributory negligence to an extent of 20% is just and proper? On considering the evidence placed on record, the Tribunal has observed that the accident has occurred in the morning hours at 6.30 a.m. At that point of time there won’t be any signal lights and only the yellow lights will be blinking. Thus normally the pedestrians would be crossing the roads without following the traffic rules or without passing through the zebra crossing provided on the road. But in the instant case there is no evidence to show that there were zebra crossings which was meant for the pedestrians to cross the road were found near the accident spot. It is pertinent to note that the accident has taken place in the early morning at about 6.30 a.m. and that too in the month of December where the visibility of persons moving on the road would be very low on account of fog and midst. Under these circumstances, it is bounden duty of the driver of the vehicles to take precautionary measures to be more cautious in driving their vehicle. In addition to that, EX.P.6, which is the spot mahazar which clearly goes to show that the petitioner had almost crossed the road, to an extent of 95% and she was hardly four feet away from the foot path. Thus, it cannot be said that the petitioner herself ran negligently in the middle of the road or crossing the road in a reckless manner and thereby contributed for the accident. The evidence placed on record makes it clear that she had almost crossed the road and the driver of the vehicle has come on the extreme left side of the road which is almost nearer to the footpath and has dashed against the petitioner. Even the police records confirm that the charge sheet was filed against the driver of the tempo and he has pleaded guilty before the criminal Court. Thus, there is no serious dispute regarding the negligence on the driver of the tempo is concerned. But however, the trial Court has come to the conclusion that there is a contributory negligence to an extent of 20% which appears to be not proper and justified. On re- appreciation of the evidence placed on record we are of the view that there is no negligence on the part of the injured petitioner to an extent of 20% as held by the Tribunal and the finding given by the Tribunal in this regard needs to be set aside and is accordingly set aside.
11. The next contention is regarding quantum of compensation. In the instant case the Tribunal has awarded the compensation under several heads as detailed below:
1. Pain and suffering Rs.40,000/-
2. Loss of income during rest period Rs.16,000/-
3. Medical expenses Rs.40,000/-
4. Future Medical expenses Rs.10,000/-
5. Food, diet and conveyance Rs.10,000/-
6. Loss of amenities Rs.30,000/-
7. Future loss of income (4,000x12x20%x’11’) Rs.1,05,600/-
Total Rs.2,51,600/-
12. The claimant/injured was a coolie by profession and she was aged about 48 years as stated in the injury certificate. The medical officer who has treated the injured has given details about the injuries caused and the medical treatment given to her. Further he has stated that the petitioner has sustained functional disability to an extent of 27% to the whole body.
13. During the course of arguments the counsel for the appellant would strenuously contend that as per medical evidence the disability is only to an extent of 27% to the whole body but there is a functional disability of 100%. Thus she is unable to carry out any work. Under these circumstances, she needs to be compensated considering her functional disability as 100%.
14. In view of the principles laid down in Aravind Kumar Mishra vs. New India Assurance Co. Ltd., ((2010) 10 SCC 254) and Rajkumar vs. Ajay Kumar, ((2011) 1 SCC 343) it is necessary to follow the guidelines in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. As observed by the Hon’ble Supreme Court in the above referred cases, the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Motor Vehicles Act, 1988 make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining the just compensation. The Tribunal should, therefore, take an active role to ascertain the true and correct position so that it can assess the just compensation. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human lives. If it does, as it must, it must provide a realistic compensation for the pain of loss and the trauma of suffering.
15. In the present case the petitioner has sustained three fractures. One of the fracture is compression fracture in the vertebrae. No doubt the doctor who has treated the petitioner has stated that one of the fracture is mal united, but he has further stated that it can be rectified by doing physiotherapy and by undergoing another operation. Thus, considering the injuries sustained a sum of Rs.75,000/- is awarded towards pain and suffering.
16. The petitioner was doing the coolie work. The said fact is not disputed or denied by the Insurance Company. She has taken the treatment and rest for almost six months on account of the injuries sustained in the accident. Considering this aspect we are inclined to award a sum of Rs.39,000/- towards loss of income during the laid up period by taking into consideration her monthly income as Rs.6,500/- p.m. instead of Rs.4,000/- as held by the Tribunal.
17. As far as medical expenses are concerned, based on the medical records and the bills produced by the petitioner injured, the Tribunal has awarded a sum of Rs.40,000/-. The same needs to be retained.
18. As far as future medical expenses are concerned, the Tribunal has awarded a sum of Rs.10,000/-
, but the learned counsel for the appellant submitted that some of the implants which have been fixed needs to be removed after some time. Considering this aspect a sum ofRs.25,000/- is awarded towards future medical expenses.
19. It is pertinent to note that the petitioner being a coolie has taken treatment and rest for about six months. During the said period she might have taken assistance of her relatives or other family members who have attended her in the hospital and she was required to take proper food and nourishment. Thus we are inclined to award a sum of Rs.40,000/- towards food, diet, nourishment and conveyance.
20. Towards loss of amenities the Tribunal has awarded a sum of Rs.30,000/-. The evidence placed on record makes it clear that the petitioner injured has sustained three fractures and there is a disability to an extent of 30% to the whole body which might have compelled the petitioner injured to undergo lot of suffering in attending her routine work because of loss of proper movement of her body and also on account of the discomfort which was faced by her on account of the fractures sustained by her, probably she may not be able to perform the activities like a normal person. Considering this aspect we are inclined to award a sum of Rs.75,000/- towards loss of amenities.
21. In respect of future loss of income the counsel for the appellant has tried to impress upon the Court that there was total loss of income and earning capacity on account of the fractures sustained in the accident. But on going through the evidence placed on record, especially of PW.5 who is the medical officer, we are of the considered view that the disability to the whole body and functional disability would be 30%. Considering the age of the petitioner as 48 years, the multiplier applicable would be ‘13’ and her income is taken as Rs.6,500/- p.m. as per necessary calculation 6,500 x 30% x 12 x 13 = Rs.3,04,200/- would be the future loss of income.
22. In the result the reassessed compensation is as follows:
1. Pain and suffering Rs.75,000/-
2. Loss of income during rest period Rs.39,000/-
3. Medical expenses Rs.40,000/-
4. Future Medical expenses Rs.25,000/-
5. Food, diet and conveyance Rs.40,000/-
6. Loss of amenities Rs.75,000/-
7. Future loss of income (6,500x12x30%x’13’) Rs.3,04,200/-
Total Rs.5,98,200/-
23. Thus, in all, total compensation payable would be Rs.5,98,200/- which shall be rounded off to Rs.6 lakh.
The said compensation shall carry interest at the rate of 6% p.a. from the date of this petition till the date of realization.
24. Out of the enhanced compensation awarded 50% shall be deposited in post office or any Nationalized or scheduled bank for a period of five years. The balance amount shall be released to her on proper identification and acknowledgement. The appellant is entitled to withdraw the periodical interest accrued on the said deposit.
25. Accordingly, the appeal is allowed in part. The appellant is entitled to enhanced compensation of Rs.3,46,600/- with interest at 6% p.a. from the date of petition till the date of realization.
26. The respondent - Insurance Company is directed to deposit the enhanced compensation amount within four weeks from the date of receipt of certified coy of this judgment.
The parties to bear the respective costs.
The registry to transmit the LCR to the concerned Tribunal forthwith.
In view of the disposal of the appeal, IA 1/2018 is disposed.
Sd/- JUDGE Sd/- JUDGE ykl