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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.3448 OF 2017 (MV-I)
BETWEEN:
SMT. MANJI
W/O ANITHA,
AGED ABOUT 47 YEARS,
R/O MANGANESE ROAD,
GANGOLLI VILLAGE & POST,
KUNDAPURA TALUK-576201
UDUPI DISTRICT.
... APPELLANT
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI. JOHNSON BARETTO
S/O LUIS BARETTO,
AGED ABOUT 30 YEARS,
R/O HOUSE NO.9,
K.F.D.C. QUARTERS,
BUNDAR ROAD,
GANGOLLI VILLAGE,
KUNDAPURA TALUK-576201,
UDUPI DISTRICT.
2. THE UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE,
SHREE LAKSHMI NARASIMHA COMPLEX,
OPP. TO KSRTC DEPOT,
VADER HOBLI,
2
KUNDAPURA TALUK-576201
REP. BY ITS
BRANCH MANAGER.
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADVOCATE FOR RESPONDENT
NO.2;
NOTICE TO RESPONDENT NO.1 IS SERVED BUT
UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
06.10.2016 PASSED IN MVC NO.180/2015 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimant seeking enhancement of compensation awarded by the Court of Senior Civil Judge and Additional Motor Vehicle Accident Claims Tribunal, Kundapura (henceforth referred to as 'Tribunal') in terms of its Judgment and Award dated 06.10.2016 in MVC No.180/2015. 3
2. The parties shall henceforth be referred to as they were arrayed before the Tribunal.
3. The claim petition discloses that on 01.11.2014, when the claimant was standing on the eastern edge of Trasi-Gangolli Main Road near Manganese Road waiting for a bus, a motor cycle bearing registration No.KA-20-W-1719 (hereinafter referred to as the 'offending vehicle') belonging to the respondent No.1 and ridden by him in a rash and negligent manner, dashed against the claimant. As a result, the claimant fell down and suffered injuries on her left leg and suffered injuries on other parts of the body. The claimant was shifted to Chinmayi Hospital, Kundapura, where she was treated between 01.11.2014 and 12.11.2014 and underwent surgery. She was thereafter admitted on 23.01.2016 for removal of implants and discharged on 29.01.2016. She claimed that she had spent a sum of Rs.1,50,000/- towards 4 medical expenses, a sum of Rs.15,000/- towards food and nourishment, a sum of Rs.25,000/- towards conveyance and a sum of Rs.15,000/- towards attendant charges. She claimed that she was a coolie and was earning a sum of Rs.8,000/- per month and that due to the accidental injuries sustained in the accident, she was deprived of the ability to earn. The claimant therefore, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of a sum of Rs.9,90,000/- for the accidental injuries suffered by her from the owner and the insurer of the offending vehicle.
4. The owner of the offending vehicle did not contest the claim petition, but the insurer filed its objections and disputed the averments made in the claim petition, injuries sustained by the claimant and the expenses incurred for the treatment etc., The insurer contended that the compensation claimed by 5 the claimant is exorbitant. It further stated that it was the claimant who tried to cross the road from eastern side to western side without observing the oncoming motor cycle and contended that the claimant had entirely contributed to the occurrence of the accident in question. Therefore, the insurer contended that it was not liable to pay any compensation to the claimant. With this the claim petition was set down for trial.
5. Before the Tribunal, the claimant was examined as PW1 and a doctor who treated the claimant was examined as PW2 and marked Exs.P1 to P13. While, the owner of the offending vehicle was examined as RW1 and marked Exs.R1 and R2.
6. The Tribunal taking into account, the complaint lodged by the claimant as per Ex.P1 and the charge sheet filed against the owner / rider of the offending vehicle as per Ex.P6 and the fact that the owner had admitted his guilt before the Criminal Court, 6 held that the accident was due to the negligence on the part of the rider of the offending vehicle. On the sidelines of the said issue, the Tribunal noticed the evidence of RW1 as well as Ex.R2 and held that when the claimant attempted to cross the road, the accident had occurred on the middle of the road and there was a variance in the evidence of the claimant that she was standing on the eastern edge of the road. Therefore, the Tribunal held that the claimant and rider of the offending vehicle were responsible for the cause of the accident.
7. So far as the claim for compensation is concerned, the Tribunal considered the notional income of the claimant at a sum of Rs.6,500/- per month and as per the evidence of PW2, who was a doctor, who deposed that the claimant had suffered partial disability of 20% to the left lower limb, the Tribunal considered 7 the disability to the whole body at 14% and awarded the following compensation.
Heads under which Amount in
compensation awarded Rupees
Pain and suffering 50,000
Medical expenses, food and 88,170
nourishment, attendant and
conveyance charges
Loss of earning during the laid up 39,000
period
Loss of future earning capacity 1,52,880
Loss of amenities 20,000
Total 3,50,050
8. The Tribunal while apportioning the
compensation payable to the claimant held that the claimant had contributed negligence by 20% to the accident and therefore, the Tribunal proportionately reduced the compensation and declared that the claimant is entitled to a sum of Rs.2,80,040/- along with interest at 6% per annum.
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9. Feeling aggrieved by the quantum of compensation awarded by the Tribunal and also the finding recorded regarding the contributory negligence of the claimant, this appeal is filed.
10. The learned counsel for the appellant contended that the accident occurred on a road which was 15 feet wide and that the claimant was standing on the eastern edge of the road waiting for a bus. Learned counsel contended that even if it is assumed that the claimant had crossed the road to reach the western edge, there was no prohibition for her to cross the road and it was for the owner / rider of the offending vehicle to have taken care / caution to avoid the accident. The learned counsel also submitted that if the complaint lodged by the claimant as per Ex.P1 is seen, she had stated that she was standing by the edge of the road and that she reiterated the same in her evidence before the Tribunal. The learned counsel brought to my notice 9 Ex.R2 and stated that Ex.R2 cannot be the basis to hold that the claimant was responsible for the accident in any way. The learned counsel stated that the owner / rider of the offending vehicle was moving from Trasi village to Gangolli which was a straight road and it was not the case of the RW1 that there was other vehicular movement which forbade him from avoiding the accident. It was also not his case that the claimant was walking across Manganese Road and that it was impossible to avoid the accident.
11. It is trite that any person who alleges contributory negligence must furnish adequate proof of the same. The test to determine contributory negligence is whether the person had exercised due care and caution and whether he could have avoided the accident. A perusal of Ex.R2, would indicate that the claimant had already travelled away from the road margin and the road was straight. Therefore, it was 10 incumbent upon the rider of the offending vehicle to have exercised caution, more so having regard to the fact that it was a mofussil road, where there was no clear marking for the pedestrians to cross the road. Therefore, finding of the Tribunal that the claimant was responsible for causation of the accident deserves to be interfered with. Hence, it is held that the finding of the Tribunal that the claimant was responsible for the accident is incorrect.
12. In so far as the quantum of compensation awarded by the Tribunal is concerned, the Tribunal had considered the income of the claimant at a sum of Rs.6,500/- per month and as rightly contended by the claimant, the Tribunal ought to have considered the income of the claimant at a sum of Rs.8,500/- per month, as is done by this Court in the matters referred to Lok Adalath for settlement. In so far as the disability 11 suffered by the claimant is concerned, PW2 stated that the claimant had suffered the following injuries:
1. Laceration of left leg 10x6 cm exposes the bone and skin loss.
2. There is a painful abnormal mobilization of 1/3rd left leg - X-ray shows comminuted fracture of both the bones of left leg.
3. Laceration of left elbow 4x2 cm.
4. Laceration of chest volve 6x2cm.
13. PW2 further deposed that the claimant had suffered partial permanent disability to the extent of 20% to the left leg. There was no any extraordinary evidence to indicate that the claimant had suffered functional disability and there is no evidence to interfere with the ordinary rule of deduction prescribed in the ALIMCO guidelines determining 1/3rd of the disability to the particular limb as the disability of the whole body. In that view of the matter, the finding of the Tribunal that the claimant had suffered disability to the extent of 14% to the whole body deserves to be interfered with 12 and it is appropriate that the disability is considered at 7% to the whole body. If the above is taken into consideration, then the compensation awarded by the Tribunal deserves to be reconsidered and recalculated as follows:
Heads under which Amount in
compensation awarded Rupees
Towards pain and sufferings 50,000
Reimbursement of medical expenses 75,170
Loss of earning during laid up period 23,500
Loss of future earning due to disability 99,960
(Rs.8,500x7%x12x14)
Loss of amenities 50,000
Attendant charges 13,500
(Rs.150/- x 3 months)
Conveyance expenses 10,000
Nourished food charges 5,000
Towards permanent disability in the 25,000
from of shortening of the left leg by
2 cm.,
Total 3,52,130
14. In view of the above, the appeal is allowed in part and the impugned Judgment and Award of the Tribunal awarding compensation of Rs.3,50,050/- and 13 holding the claimant guilty of contributory negligence is set-aside and the claimant is entitled to total compensation of a sum of Rs.3,52,130/-, which is payable by the insurer to the claimant alongwith interest @ 6% per annum from the date of claim petition till the date of realization.
15. The insurer is directed to deposit the said amount within a period of one month from the date of receipt of a certified copy of this Judgment.
16. Any amount deposited by the insurer before this Court shall be adjusted towards the total compensation payable to the claimant.
Sd/-
JUDGE GH