1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7355 OF 2013(MV)
BETWEEN:
SRI. B.M. ABDUL JALEEL
AGED 43 YEARS
S/O SRI. B. MEHAMOOD
R/O ROOM NO.3, ALAIN APARTMENT
GREEN GARDEN, DERALAKATTE
MANGALORE, D.K-574 160.
... APPELLANT
(BY SRI.PUNDIKAI ISHWARA BHAT, ADV. )
AND
1. SRI. CYRIL JERRY LOBO
ADULT
S/O SRI. VICTOR LOBOS
R/O SANAKAI GUDDE
BEJAI NEW ROAD
MANGALORE-575 004.
2. THE ORIENTAL INSURANCE CO. LTD.,
KRISHNA PRASAD BUILDING,
3RD FLOOR, M.G.ROAD
LALBHAG, MANGALORE
D.K.-575 003
2
REP. BY ITS MANAGER.
... RESPONDENTS
(BY SRI.M.S. SRIRAM, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:09.06.2016)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 08.10.2012 PASSED IN MVC NO.535/2009 ON
THE FILE OF THE III ADDITIONAL DISTRICT JUDGE,
MEMBER, MACT-4, D.K. MANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 8.12.2012 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 4.3.2009, the claimant was proceeding as a pillion rider on Honda Activa 3 motorcycle bearing registration No.Ka-19Y-969 from Bendoorwell towards Kankanady, near Ganesh Medical, Kankanady, at that time, bus bearing registration No.KA-19/A-2521 being driven by its driver at a high speed and in a rash and negligent manner stopped the bus suddenly without giving any signal. As a result, the rider dashed the hind portion of the bus and the claimant fell down and sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was running medical centre at Deralakatte and earning Rs.20,000/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4
4. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the rider. Liability is subject to terms and condition of the policy. The driver of the offending bus was not having valid driving licence. The mandatory provisions of Section 134(c) and 158(6) of are not complied with. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
5
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Lawrence Mathais as PW-2 and got exhibited documents namely Ex.P1 to Ex.P16. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence on the part of the rider of the motorcycle as well as the driver of the bus to the extent of 50% each, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,02,900/- along with interest at the rate of 6% p.a. and directed the Insurer of bus to deposit 50% of the said compensation amount along 6 with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has contended that the accident has occurred due to rash and negligent driving of the bus. But the Tribunal has wrongly held that the rider of the motorcycle has contributed to the accident to the extent of 50%. The Tribunal has held that there was a bus stop and the bus was stopped near the bus stop, the rider of the motorcycle without following the traffic rules rode the same in a rash and negligent manner and dashed the hind portion of the bus. He contended that as per Ex.P-6 and 7, spot mahazar and sketch, it is clear that the bus stop was on the western side of the road and the accident has occurred on the eastern side of the road. Therefore, the finding of the Tribunal is contrary to the materials available on record. 7
Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 20% to left lower limb. The Tribunal has erred in taking the whole body disability at only 7% which is on the lower side.
Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 7 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. The Tribunal has not granted any compensation under the head 'loss of amenities'.
Fourthly, PW-2 has stated that the claimant has to undergo one more surgery for removal of implants which costs Rs.10,000/-, but the Tribunal has not granted any compensation under the head of 'future medical expenses'.
8
Fifthly, considering the nature of injuries, the compensation granted by the Tribunal under the head of 'pain and sufferings' and other heads are on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that the rider of the motorcycle rode the same in a rash and negligent manner without following the traffic rules and has contributed to the accident. Therefore, the Tribunal considering the same, has rightly held that there is contributory negligence on the part of the rider of the motorcycle and the rider has contributed to the accident to the extent of 50%.
Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 20% to particular limb. The Tribunal considering 1/3rd of the disability caused to limb has rightly taken disability to whole body at 7%.
9
Thirdly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for interference. Hence, he sought dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. The specific case of the claimant is that on 4.3.2009, the claimant was proceeding as a pillion rider on Honda Activa motorcycle bearing registration No.Ka-19Y-969 from Bendoorwell towards Kankanady, near Ganesh Medical, Kankanady, at that time, bus bearing registration No.KA-19/A-2521 being driven by its driver at a high speed and in a rash and negligent manner stopped the bus suddenly without giving any signal. As a result, the rider dashed the hind portion of the bus and the claimant fell down and sustained 10 grievous injuries and immediately he was shifted to the hospital.
To prove the negligence, the claimant has examined himself as PW-1 and produced as many as 16 documents. As per Ex.P-6 spot mahazar, the bus was traveling from Karavalli circle to Kankanady. There was a bus stop on the western side of the road and the accident took place on the eastern side of the road. The road was 50 feet road. As per Ex.P-7 sketch, there was a bus stop on the western side of the road and accident occurred on the eastern side of the road. Therefore, it is very clear from the above documents that the driver of the bus stopped the bus suddenly without giving any signal to the vehicles coming behind and hence the accident has occurred due to sole negligence on the part of the driver of the bus. Therefore, the finding of the Tribunal in respect of negligence is modified and it is held that the 11 accident has occurred due to rash and negligent driving of the offending bus by its driver. Regarding quantum of compensation
10. The Tribunal considering the age and avocation of the claimant has rightly taken the notional income at Rs.5,000/- p.m. As per wound certificate, the claimant has sustained small abrasion present on the right knee joint and fracture of left patella. PW-2, the doctor has stated that the claimant has suffered whole body disability at 20%. Therefore, taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the wound certificate, the whole body disability is taken at 10%. The claimant is aged about 39 years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimant is entitled for compensation of Rs.90,000/- 12 (Rs.5,000*12*15*10%) on account of 'loss of future income'.
The nature of injuries suggest that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.15,000/- (Rs.5,000*3 months) under the head 'loss of income during laid up period' as against Rs.6,300/- awarded by the Tribunal..
Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to award a sum of Rs.20,000/- under the head of 'loss of amenities'.
The claimant has examined the doctor PW-2, who in his testimony stated that the claimant requires about Rs.10,000/- for removal of implants. Hence, I 13 am inclined to award a sum of Rs.10,000/- under the head 'future medical expenses'.
The compensation awarded by the Tribunal under other heads remains unaltered.
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 8,000 8,000 Medical expenses 24,000 24,000 Food, nourishment, 1,600 1,600 conveyance and attendant charges Loss of income during 6,300 15,000 laid up period Loss of amenities 0 20,000 Loss of future income 63,000 90,000 Future medical expenses 0 10,000 Total 102,900 168,600 The claimant is entitled to a total compensation of Rs.1,68,600/-.
14
In view of the finding that the driver of the bus was negligent and has solely contributed to the accident, the Insurer of the bus is directed to deposit the entire compensation amount along with interest at 6% p.a. within a period of four weeks from the date of receipt of copy of this judgment excluding interest for the delayed period of 198 days in filing the appeal.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE DM