IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL No.1711/2012 C/W MISCELLANEOUS FIRST APPEAL Nos.1708 & 1709/2012 MFA No.1711/2012 BETWEEN:
Sri.Likmaran, S/o Mohan Lajji, Aged about 36 years, Channakeshavanagar, Hosur Road, Bangalore-560 100. …Appellant (By Sri.Pradeep Naik.K., Advocate) AND:
1. Reliance General Insurance Co.Ltd., 5th Floor, Centenary Building, No.28, M.G.Road, Bangalore-560001 (Cover Note No.109000132104 Valid from 24.04.2009 to 23.04.2010) 2. Mr.Ravi, S/o Budhattigan, R/at No.39, 7th Main, ESI Hospital Road, HAL 2nd Stage, Indiranagar, Bangalore-560038. …Respondents (By Sri.H.C.Betsur, Advocate for R1 R2-served) This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 08.08.2011 passed in MVC No.2434/2010 on the file of the 14th Additional Judge, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA No.1708/2012 BETWEEN:
Smt.Suman Devi, W/o Sri.Likmaran, Aged about 32 years, R/at No.564, 5th Cross, Channakeshavanagar, Hosur Road, Bangalore-560 100 (By Sri.Pradeep Naik.K., Advocate) AND:
1. Reliance General Insurance Co.Ltd., 5th Floor, Centenary Building, No.28, M.G.Road, Bangalore-560001 (Cover Note No.109000132104 Valid from 24.04.2009 to 23.04.2010) 2. Mr.Ravi, S/o Budhattigan, R/at No.39, 7th Main, …Appellant ESI Hospital Road, HAL 2nd Stage, Indiranagar, Bangalore-560038.
(By Sri.H.C.Betsur, Advocate for R1 R2-Served) …Respondents This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 08.08.2011 passed in MVC No.2434/2010 on the file of the 14th Additional Judge, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA No.1709/2012 BETWEEN:
Sri.Rakesha @ Rakesh, S/o Sri.Paburamji, Aged about 20 years, R/at No.564, 5th Cross, Channakeshavanagar, Hosur Road, Bangalore-560100. (By Sri.Pradeep Naik.K., Advocate) AND:
1. Reliance General Insurance Co.Ltd., 5th Floor, Centenary Building, No.28, M.G.Road, Bangalore-560001 (Cover Note No.109000132104 Valid from 24.04.2009 to 23.04.2010) 2. Mr.Ravi, S/o Budhattigan, R/at No.39, 7th Main, …Appellant ESI Hospital Road, HAL 2nd Stage, Indiranagar, Bangalore-560038.
(By Sri.H.C.Betsur, Advocate for R1 R2-Notice dispensed with) …Respondents This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 08.08.2011 passed in MVC No.2434/2010 on the file of the 14th Additional Judge, MACT, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for admission this day, the Court delivered the following:
JUDGMENT As all these three appeals have arisen out of a common judgment of the Tribunal, with the consent of learned counsel appearing for both the parties all the appeals were heard together and disposed of by this common judgment. Perused the judgment and awards passed by the Tribunal including the records of the Tribunal.
2. As there is no dispute regarding certain injuries sustained by the claimants in a road traffic accident occurred on 26.01.2010 by involvement of a TVS XL moped bearing registration No.KA-02-HA-2797 and a TATA Indica car bearing registration No.KA-03-C- 3459, points that arise for consideration are :
i) Whether Tribunal was justified in holding that accident had occurred due to contributory negligence of 40% on the part of the rider of TVS XL Moped two wheeler in which the claimants had traveled as rider and pillion rider and 60% on the part of the driver of the TATA Indica car ?
ii) Whether quantum of compensation awarded in each case is just and reasonable or does it call for enhancement?
3. Claimants in support of their contentions that though they were proceeding in their two wheeler on the left side of the road slowly and carefully by observing traffic rules, accident occurred due to the rash and negligent driving of the driver of the Indica car, have examined themselves as P.Ws. 1, 2 and 4 respectively and have produced the certified copy of the orders and plea recorded in CC.No.303/2010 and the Police records such as FIR with complaint, charge sheet, spot sketch and spot panchanama, which were marked as Exs. P.1 to P.5 respectively, the Tribunal without considering the same has committed an error in holding that accident occurred due to contributory negligence of 40% on the part of the claimant in MVC No.2434/2010 in riding his motor cycle and 60% on the part of the driver of the Indica car.
4. Regarding quantum, learned Counsel submits, quantum of compensation awarded by the Tribunal is on the lower side, and therefore he prays for allowing the appeals preferred by the claimants both on the ground of negligence as well as quantum.
5. Whereas, the learned Counsel appearing for the insurer of Indica car submits, since, four persons including the petitioners had travelled in a two wheeler, with high speed and in a rash and negligent manner and the rider of two wheeler (claimant in MVC No.2434/2010) could not balance his vehicle, due to which he dashed against the Indica car. However, the Tribunal considering the oral and documentary evidence on record was justified in holding that accident occurred due to contributory negligence on the part of the rider of two wheeler and the driver of the Indica car in the ratio of 40% : 60% respectively. As such, the said finding of the Tribunal does not call for interference.
6. Regarding quantum, learned Counsel submits, whatever compensation already awarded by the Tribunal is more than just entitlement and there is no scope for enhancement and therefore he prays for dismissal of the appeals in its entirety.
7. Admittedly the rider of two wheeler (claimant in MVC 2434/2010) was riding his two wheeler TVS XL by carrying three more persons along with him as pillion riders. If that is so, it cannot be said that he was riding his two wheeler slowly and carefully by observing traffic Rules. As he was riding his two wheeler by carrying three more persons along with him as pillion riders itself shows, he must have failed to balance his vehicle, as rightly pointed out by the learned Counsel for the insurer of the Indica car, thereby he had also contributed for the occurrence of the accident. Therefore, the Tribunal considering the oral and documentary evidence on record was justified in holding that accident occurred due to contributory negligence of both the rider of two wheeler as well as the driver of Indica car in the ratio of 40% : 60% respectively. I have carefully gone through the findings of the Tribunal on negligence and do not find any illegality or infirmity in the said finding of the Tribunal warranting interference. Hence, finding of the Tribunal on negligence is confirmed and point No.1 is answered accordingly.
Regarding Quantum :
MFA 1711/2012 (MVC 2434/2010):
The claimant in this case is one Likmaram.
8. As per Exs. P.6 and P.7 - the wound certificate and discharge summary respectively issued by St. John’s Medical College Hospital, Bangalore, he had sustained the following injuries:-
i) Tenderness, swelling and deformity over right shoulder region - fracture of right clavicle bone.
ii) Linear abrasion over right side of abdomen measuring 15 cms. X 2 cms.
X-ray reveals clavicle fracture (Rt.) Injury No.1 is described as grievous injury and injury No.2 is described as simple injury.
He was treated as in-patient at St. John’s Medical College Hospital, Bengaluru, from 26-01-2010 to 29-01- 2010.
P.W.5 Dr. K.T.Thomas, Orthopaedic Surgeon at St. John’s Medical College Hospital, Bengaluru, has stated that claimant had sustained the aforesaid injuries and he was treated conservatively with clavicle brace and on examination of the claimant on 09-03- 2011, he found right shoulder movements was restricted by 20 to 25 degrees and x-ray taken on the same day showed malunion of fracture and he has assessed the disability at 15% to the upper limb and 5% to the whole body.
9. Considering the nature of injuries sustained by the claimant, Rs.10,000/- awarded by the Tribunal towards ‘pain and suffering’ is very much on the lower side and it is deserved to be enhanced and a sum of Rs.40,000/- is awarded under this head.
10. Claimant has produced the medical bills for Rs.12,600/- and the said sum is awarded towards medical expenses. Therefore, there is no scope for enhancement under this head.
11. He was treated as inpatient for 3 days at St.
John’s Medical College Hospital, Bengaluru. Therefore, a sum of Rs.3,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges.
12. The claimant claims to have been earning a sum of Rs.15,000/- per month by running a garment shop, but it is not substantiated by producing any documentary evidence. In the absence of proof of income, considering his age as 35 years, year of accident as 2010 and avocation as daily wager, his income is assessed at Rs.6,500/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of four months. Therefore a sum of Rs.26,000/- is awarded towards ‘loss of income during laid up period’.
13. His income is assessed at Rs.6,500/- per month. Doctor has stated, claimant has suffered the disability of 15% to the limb and 5% to the whole body. Multiplier applicable to the age group of the claimant is `16’. So loss of future income would work out to Rs.62,400/- (Rs.6,500/- x 12 x 16 x 5/100) and it is awarded.
14. Nature of injuries sustained by the claimant would suggest that he has to undergo certain amount of discomfort and unhappiness in his future life. Considering the same, a sum of Rs.20,000/- is awarded towards ‘loss of amenities’.
15. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
1 Pain and sufferings 40,000/-
2 Medical Expenses 12,600/-
3 Incidental expenses 3,000/-
4 Loss of income during laid up period 26,000/-
5 Loss of amenities 20,000/-
6 Loss of future income 62,400/-
TOTAL 1,64,000/-
16. From the additional compensation, after deducting 40% towards negligence contributed by the claimants by traveling four persons in two wheeler as against the seating capacity of two persons, claimant is entitled for 60% of the compensation amounting to Rs.56,400/-, with interest at 6% p.a. from the date of claim petition till the date of realization.
MFA 1708/2012 (MVC 2435/2010):
The claimant in this case is one Suman Devi.
17. As per Exs. P.13 and P.14 - the wound certificate and discharge summary respectively, she had sustained the following injuries:-
i) Tenderness and swelling over right side of hip, x-ray of right hip shows right hip fracture, right superior and inferior pubic ramus ii) Tenderness, swelling and restricted movement of right ankle iii) Abrasion over right arm back measuring 10 cms. X 5 cms. and over right knee measuring 3 cms. X 2 cms.
Injuries No.1 and 2 are described as grievous injury and injury No.3 is described as simple injury.
She was treated as in-patient at St. John’s Medical College Hospital, Bengaluru, from 26-01-2010 to 28-01- 2010.
P.W.5 Dr. K.T.Thomas, Othopaedic Surgeon at St.
John’s Medical College Hospital, Bengaluru, has stated that claimant had sustained the aforesaid injuries and she was treated conservatively with rest and POP to right leg and discharged on 28-01-2010. She has attended OPD two times after discharge and he opined that claimant suffered disability at 10% to whole body.
18. Considering the nature of injuries sustained by the claimant, a sum of Rs.30,000/- is awarded towards ‘pain and suffering’ as against Rs.10,000/- awarded by the Tribunal under this head.
19. Claimant has produced the medical bills for Rs.4,860/- and she was treated as inpatient for three days. Considering the same, a sum of Rs.8,000/- is awarded towards medical and incidental expenses.
20. The claimant claims to have been earning a sum of Rs.3,000/- per month by working as a maid servant. In the absence of proof of income, considering her age as 24 years and year of accident as 2010, her income is assessed at Rs.3,000/- per month as stated by the claimant. The nature of injuries suggest that she must have been under rest and treatment for a period of four months. Therefore a sum of Rs.12,000/- is awarded towards ‘loss of income during laid up period’.
21. Her income is assessed at Rs.3,000/- per month. Doctor has stated, claimant has sustained disability of 10% to the whole body. Multiplier applicable to the age group of the claimant is `18’. So loss of future income would work out to Rs.64,800/- (Rs.3,000/- x 12 x 18 x 10/100) and it is awarded.
22. Nature of injuries sustained by the claimant would suggest that she has to undergo certain amount of discomfort and unhappiness in her future life. Considering the same, a sum of Rs.25,000/- is awarded towards ‘loss of amenities’.
23. Thus, the claimant is entitled for the following compensation:-
24. From the additional compensation, after deducting 40% towards contributed by the claimants by traveling four persons in two wheeler as against the seating capacity of two persons claimant is entitled for 60% of the compensation amounting to Rs.55,728/-, with interest at 6% p.a. from the date of claim petition till the date of realization.
MFA 1709/2012 (MVC 2437/2010):
The claimant in this case is one Rakesh, aged about 18 years.
25. As per Ex.P.24 and P.25 - wound certificate and discharge summary respectively, he had sustained the following injuries:-
i) Tenderness, swelling and deformity over left shoulder and left collar bone region ii) Tenderness over left side of chest, chest x- ray shows fracture of left third rib iii) Multiple abrasions of varying dimensions over face and other injuries.
Injuries No.1 and 2 are described as grievous injuries and injury No.3 is described as simple injury.
He was treated as in-patient at St. John’s Medical College Hospital, Bengaluru, from 26-01-2010 to 28-01- 2010.
P.W.5 Dr. K.T.Thomas, Othopaedic Surgeon at St.
John’s Medical College Hospital, Bengaluru, has stated that claimant had sustained the aforesaid injuries and he was treated conservatively with raze and discharged on 28-01-2010. He has assessed the disability at 15% to the upper limb and 5% to the whole body.
26. Considering the nature of injuries sustained by the claimant, a sum of Rs.40,000/- is awarded towards ‘pain and suffering’.
27. Claimant has produced medical bills for Rs.9,000/- and was treated as inpatient for three days at St. John’s Medical College Hospital, Bengaluru. Considering the same, a sum of Rs.12,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges.
28. The claimant claims to have been earning a sum of Rs.4,000/- per month. In the absence of proof of income, considering his age as 18 years and year of accident as 2010 his income is assessed at Rs.4,000/- per month as claimed by him. The nature of injuries suggest that he must have been under rest and treatment for a period of four months. Therefore a sum of Rs.16,000/- is awarded towards ‘loss of income during laid up period’.
29. His income is assessed at Rs.4,000/- per month. Doctor has stated, claimant has sustained disability of 5% to the whole body. Multiplier applicable to the age group of the claimant is `18’. So loss of future income would work out to Rs.43,200/- (Rs.4,000/- x 12 x 18 x 5/100) and it is awarded.
30. Nature of injuries sustained by the claimant would suggest he has to undergo certain amount of discomfort and unhappiness in his future life. Considering the same, a sum of Rs.20,000/- is awarded towards ‘loss of amenities’.
31. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
1 Pain and sufferings 40,000/-
2 Medical and incidental expenses 12,000/-
3 Loss of income during laid up period 16,000/-
4 Loss of amenities 20,000/-
5 Loss of future income 43,200/-
TOTAL 1,31,200/-
32. From the additional compensation, after deducting 40% towards negligence contributed by the claimants by traveling four persons in two wheeler, as against the seating capacity of two persons, claimant is entitled for 60% of the compensation amounting to Rs.35,784/-, with interest at 6% p.a. from the date of claim petition till the date of realization.
33. Accordingly, the appeals are allowed in part.
The judgment and awards dated 08.08.2011 passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru city, in MVC No.2434, 2435 and 2437 of 2010, stand modified.
34. Claimants are entitled to additional compensation as mentioned against their respective case with interest at 6% p.a. from the date of claim petition till the date of realization. The insurer of Indica car is directed to deposit the compensation amount with interest within two months from the date of receipt of copy of this order and the same shall be released in favour of the claimants.
No order as to costs.
SD/- JUDGE Sb/MGN