IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL MFA No.9026/2010 (MV) Between:
Sri Rathnakara Shetty Aged about 60 years s/o late Jogappa Shetty r/a Kundottu House 41 Shiroor Village Udupi Taluk & District 576 124. .. Appellant (By Sri.Yashodar Shetty for Sri Nataraja Ballal, Advocates) And 1. Vishnu Kumar Aged about 32 years s/o H Vittala Shetty r/a Sri Rama Nilaya Kassan Makki, Nadpalu village Karkala Taluk – 574 102.
2. Oriental Insurance Co. Ltd., Sri Ram Arcade, Udupi Branch, Udupi – 576101. .. Respondents (By Sri C Shankar Reddy, Advocate for R2 R1 – sd.) This MFA is filed U/s 173(1) of MV Act against the judgment and award dated 07.01.2010 passed in MVC No.104/2008 on the file of the Principal Civil Judge (Sr.Dn), Additional MACT, Udupi, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for admission this day, the court delivered the following:-
J U D G M E N T This appeal is by the appellants/claimants seeking enhancement of compensation by assailing the judgment and award passed by the Principal Civil Judge (Sr.Dn) and Addl. MACT, Udupi in MVC No.104/2008 dated 7.1.2010.
2. Heard. Appeal is admitted. With the consent of the leaned counsel appearing for the parties, it is taken up for final disposal.
3. Brief facts leading to the case are that,-
On 16.9.2007 at about 9.30 a.m. when the claimant, Sri Rathnakara Shetty was traveling as a pillion rider on a motor cycle bearing Regn. No.KA-20-Q-
3425 towards Harikandige side and when the said motor cycle came near Koodu Patya, the rider of the said motor cycle drew the same in a rash and negligent manner and as a result of the same, the said vehicle skidded and as a result of the same, claimant, who was proceeding as a pillion rider, fell down and sustained grievous injuries. Immediately he was shifted to the hospital and there he took treatment as an inpatient. For having spent money for his treatment and lost the income during laidup period and for having sustained permanent disability, he filed the claim petition claiming compensation. It is contended that the claimant was an agriculturist and was earning a sum of Rs.8,000/- p.m. and he was aged about 58 years at the time of accident. On these grounds, he prayed for allowing the claim petition.
4. In pursuance to the notice, the respondents appeared and filed their written statements by denying the contents of the petition. It is contended by respondent No.2 that the accident had occurred solely due to negligence of the claimant. Further it is contended that as on the date of accident, the rider of motor cycle had no valid and effective driving license. On these grounds, they prayed for dismissal of the petition.
5. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether the petitioner proves that accident in question occurred due to the rash and negligent driving of the vehicle bearing Regn. No.KA-20-Q-3425?
2. Whether the 2nd respondent proves that the accident in question occurred solely due to the negligence of the petitioner?
3. Whether the 2nd respondent proves that driver of the vehicle bearing Regn. No.KA-20-Q-3425 had no valid and effective driving licence?
4. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
5. What award or order?
6. After hearing the parties to the lis, the impugned judgment and award came to be passed. The Tribunal awarded compensation of Rs.1,04,600/- and liability has been fixed on respondent No.1 – owner by exonerating the liability on respondent No.2. By assailing the same, the claimant/appellant is before this Court challenging the quantum of compensation awarded by the Tribunal as well as fixing the liability on respondent No.1.
7. The main grounds urged by the learned counsel for the appellant/claimant are that the compensation awarded by the Tribunal is on the lower side. Though the appellant/claimant has suffered grievous injuries to his spine, he was admitted to the hospital for 21 days. He contended that the income of the appellant/claimant taken by the Tribunal is on the lower side. Though the records clearly indicate that he was having an agricultural land to an extent of 10 acres and was earning a sum of Rs.8,000/- p.m. He further contended that the Tribunal has rightly come to the conclusion that the accident has taken place due to rash and negligent act of respondent No.1 without there being further proof and erroneously the liability has been fixed on respondent No.1 and dismissed the petition as against respondent No.2. On these grounds, he prayed for allowing the appeal by enhancing the compensation and fixing the liability on respondent No.2.
8. Learned counsel appearing for respondent No.2 – Insurance Company vehemently argued and contended that the Tribunal after coming to know that the rider of the vehicle, who is the owner, in collusion with the appellant/claimant, the petition came to be filed and a complaint came to be filed belatedly and as such, the 2nd respondent was not made liable to pay the compensation and petition came to be dismissed as against him. However, he further contended that in the event, this Court comes to the conclusion that respondent No.2 – Insurance Company is liable to pay the compensation, under such circumstances, the matter may be remitted to the Tribunal for fresh disposal in accordance with law by giving an opportunity to the respondents to substantiate their case. On these grounds, he prayed for dismissal of the appeal.
9. As could be seen from the records, the offending vehicle insured with the 2nd respondent is not in dispute. As could be seen from the judgment and award of the Tribunal, the appellant/claimant has contended that he was proceeding on motor cycle bearing Regn. No.KA-20-Q-3425 and respondent No.1 was the owner and because of his rash and negligent act, the said motor cycle skidded and as a result of the same, the appellant/claimant sustained injuries. Though the 2nd respondent – Insurance Company has takenup the contention that the accident has occurred solely due to the negligence of the appellant/claimant, but nothing has been placed before the Tribunal to prove the same. The Tribunal only on presumption and assumption it has come to the conclusion that the doctor, who has treated the claimant, has not intimated the said accident to the concerned police. The said facts and circumstances create a doubt regarding the alleged accident and criminal case was registered against the rider of the motor cycle, who is the owner of the said vehicle and the 1st respondent has not stepped into the witness box. On these grounds, the Tribunal has come to the conclusion that there is collusion between the claimant and the 1st respondent and as such, the 2nd respondent – Insurance Company cannot be made liable to pay compensation and dismissed the petition as against the 2nd respondent. The said observation appears to be not justifiable.
10. The Tribunal while answering issue No.1 has come to the conclusion that the evidence of PW1 and the contents of Exs.P1 to P4 prove that the accident solely due to rash and negligent riding of motor cycle bearing Regn. No.KA-20-Q-3425 and that it has come to the conclusion that there is an accident as contended by the appellant/claimant. Under such circumstances, the Tribunal ought not to have passed the judgment as discussed above by exonerating the liability on the 2nd respondent – Insurance Company. When once, it has come to the conclusion that there is an accident and the said vehicle has been insured with the 2nd respondent and the rider of motor cycle was having valid and effective driving license, under such circumstances, fastening the liability on the 1st respondent by exonerating the 2nd respondent – Insurance Company is not justifiable. Under the said facts and circumstances, the finding given to that effect deserves to be set aside and the Insurance Company has to indemnify the said compensation to the appellant/claimant.
11. The second contention taken by the learned counsel for the appellant/claimant is that the appellant/claimant has sustained the following injuries:
1. Whiplash injury cervical spine 2. Weakness in both upper and lower limb.
He was hospitalized for a period of 21 days. He got examined the doctor as PW2. The doctor – PW2 has opined that the appellant/claimant sustained 10% permanent physical impairment and loss of physical function to whole body. But while awarding the compensation, the Tribunal has awarded meager compensation of Rs.36,000/- under the head `future loss of income’. Though the compensation awarded by the Tribunal is justifiable, but when the Tribunal is intending to calculate the loss of future income of the claimant, the Tribunal ought to have taken the year of the accident and the wage prevailed at that point of time. Since the accident in question is of the year 2007, during that period, even in the absence of any documentary evidence, the notional income of Rs.4,000/- p.m. is the yardstick, which has been normally adopted in settlement of cases before the Lokadalath. If that appears to be adopted, under such circumstances, by taking into consideration the evidence of PW2, he has deposed that the appellant – claimant has sustained 10% permanent physical impairment, in that light, the appellant/claimant is entitled to an amount of Rs.43,200/- towards `loss of future income’. Even by adopting the same income and taking into consideration the injuries, it can be held that the appellant/claimant might have taken treatment for a period of 21 days and thereafter he might have also under rest for a period of 2 to 3 months and during that particular period, he might have loss the income, which he should have earned. In that light, he is also entitled to an amount of Rs.12,000/-. By taking into consideration the injuries and the evidence of PW2 – doctor, the compensation awarded under other heads is on the lower side. In that light, the compensation is to be reassessed under the following heads:
1) Pain and suffering - Rs.40,000/-
2) Conveyance, attendant charges, food and nourishment etc. - Rs.10,000/-
3) Discomfort, loss of amenities in life - Rs.20,000/- Sofaras medical bills amounting to Rs.20,000/- is concerned, the Tribunal has awarded the compensation towards actual medical bills produced by the appellant/claimant and the same has not been disturbed. Taking into consideration the above facts and circumstances, the total compensation which will be awardable to the appellant – claimant is Rs.1,49,800/- since the Tribunal has already awarded an amount of Rs.1,04,600/-. After deducting the same, the appellant-claimant is entitled to additional compensation of Rs.45,200/- with interest at the rate of 6% p.a. from the date of petition.
Accordingly, the appeal is allowed in part. The appellant is entitled to additional compensation of Rs.45,200/- with interest at the rate of 6% p.a. from the date of petition till realization.
The judgment and award dated 7.1.2010 in MVC No.104/2008 passed by the Principal Civil Judge (Sr.Dn.) and Addl. MACT, Udupi is modified as indicated above by fixing the liability on the 2nd respondent – Insurance Company.
Respondent No.2 – Insurance Company is directed to deposit the compensation awarded by the Tribunal along with the additional amount which has been awarded by this Court with interest at the rate of 6% p.a. within six weeks from the date of receipt of a copy of this judgment.
However, it is further clarified that this Court while recalling the order dated 28.7.2016 has passed an order to the effect that the appellant/claimant shall not be entitled for interest for the delayed period of 525 days, in case he succeeds in the appeal.
The Insurance Company while depositing the amount has to deduct the interest for a period of 525 days by virtue of the order dated 28.7.2016.
Registry is directed to draw the award accordingly.
Sd/- JUDGE bkm.