1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.4645 OF 2013(MV)
BETWEEN:
MAHABALA SHETTY,
AGED ABOUT 41 YEARS,
S/O LATE. BACHUCHU SHETTY,
R/O HONMERIMANE,
MNOOR-PADUKERE,
KOTATHATTU VILLAGE & POST,
UDUPI TALUK, UDUPI DISTRICT-576101
... APPELLANT
(BY SRI H.PAVANA CHANDRA SHETTY, ADV.)
AND:
1. SANJAY SINGH,
AGED ABOUT 34 YEARS,
S/O KUMAR SINGH,
R/O A.P.WARD NO.3,
SRIRAMPURA TAI,
AHAMMD NAGAR DISTRICT,
MAHARASTRA STATE-400614.
2. KULWANTH SINGH,
AGED ABOUT 59 YEARS,
S/O MILKHA SINGH,
R/O C-6/9, 2-3 SECTOR NO.6,
CBD, BELAPURA, NAVI MUMBAI,
MAHARASHTRA STATE PIN-400 614.
2
3. THE IFFCO TOKIO GENERAL INSURANCE CO.
OFFICE NO.32-33, 3RD FLOOR,
WHITE CSTILE,
OVER MTNL EXCHANGE,
UNION PARK, MUMBAI,
MAHARASHTRA STATE PIN-400 071.
... RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:13.11.2012
PASSED IN MVC NO.654/2010 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the judgment and award dated 13.11.2012 passed by the Senior Civil Judge and MACT, Kundapura in MVC No.654/2010 whereby the Tribunal has granted a compensation of Rs.1,43,663/- with interest at 6% p.a.
2. The brief facts of the case are that on 25.06.2010 at about 10.15 p.m., claimant as driver cum owner was 3 proceeding in an Auto rickshaw bearing registration No.KA- 20/A-2259 from Kota side towards Koteshwara side slowly, steadily and on the correct side of the road. When he reached near Nataraj Bar, N.H.17 Koteshwara Village of Kundapura Taluk, at that time, a tanker bearing registration No.GJ-6X/7536 came from Kundapura side towards Udupi side, driven by its driver at a high speed and in a rash and negligent manner, dashed against the Auto rickshaw. Due to the said impact, claimant sustained grievous injuries. Thereafter, claimant has been shifted to Dr.N.R.A.M. Hospital, Koteshwara. He has taken treatment as an inpatient till 04.07.2010. After recovering from the injuries, he filed a claim petition before the Tribunal in MVC No.654/2010.
3. On service of notice, the respondent No.3 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, occupation, income, treatment, and the manner of accident, injuries sustained by the claimant and amount 4 incurred on medical expenses are denied. It was pleaded that the accident has occurred due to contributory negligence of the driver of Auto rickshaw. It was further pleaded that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of accident. Hence, he sought for dismissal of the petition.
4. To establish his case, claimant examined himself as PW1 and examined Dr.Vivek K.S. as PW2 and got marked 51 documents as Exs.P1 to P51. On the other hand, on behalf of the Insurance Company neither any witnesses were examined nor documents were marked. On appreciation of the oral and documentary evidence, the Tribunal granted a compensation of Rs.1,43,663/- with interest at 6% p.a. Being not satisfied with the quantum of compensation, claimant has filed this appeal seeking enhancement of compensation.
5. The learned counsel for the appellant has raised the following contentions.
5
Firstly, the Tribunal is not justified in giving a finding that the claimant has contributed 25% negligence in causing the accident. He further contended that it is not in dispute that the driver of the Tanker overtook another vehicle coming from the wrong side of the road and dashed against the Auto Rickshaw. The driver of the Auto Rickshaw was driving the same by following all the rules and regulations. There is no negligence on the part of the driver of the Auto Rickshaw. There is only existence of 5 feet wide tar road and 3 feet wide mud road towards the left side of the road i.e., western side. The Tribunal has held that the driver of the Auto Rickshaw has contributed 25% negligence to the accident. It is contrary to the materials available on record.
Secondly, immediately after the accident, the police have registered FIR against the driver of the Tanker and thereafter charge sheet has been filed against the driver of the tanker. He has not challenged the same before any Court of law. Hence, there is no negligence on the part of the driver of the Auto Rickshaw.
6
Thirdly, due to the accident, the claimant has suffered grievous injuries. He has examined the doctor as PW.2, who assessed disability of 20%. Since the claimant is a driver of the Auto Rickshaw, he is unable to do his day today work, the Tribunal is not justified in taking whole body disability as 5%.
The claimant has suffered grievous injuries and due to the same he has suffered lot of pain during the treatment. The compensation awarded by the Tribunal under the heads of 'loss of amenities' and 'pain & sufferings' are on the lower side. Hence, he sought for enhancement of compensation.
6. Per contra, learned counsel appearing for the Insurance Company has raised the following contentions.
Firstly, it is not in dispute that the width of tar road is 24 feet and existence of 3 feet wide mud road on western side. There is a distance of 5 feet from the western tar road edge towards eastern side on the road and the driver of Auto Rickshaw could have taken the Auto 7 towards left side to avoid the accident, but he did not do so. Therefore, the Tribunal has rightly held that the driver of the Auto Rickshaw has contributed 25% negligence to the accident.
Secondly, it is admitted in the evidence of PW.1 that even after the accident, the driver of the Auto rickshaw has continued his driving, there is no loss of income due to disability. Since the disability assessed by the doctor to the extent of 20%, the Tribunal has rightly assessed whole body disability at 5%.
Thirdly, the compensation awarded by the Tribunal under other heads are just and reasonable. Hence, he sought for dismissal of the appeal.
7. Heard learned counsel for the parties and perused the judgment and award of the Tribunal and original records.
8. The case of the claimant in MVC.No.654/2010 is that on 25.06.2010 at about 10.15 p.m., he was proceeding in an Auto Rickshaw bearing Reg.No.KA-20/A- 8 2259 as a driver cum owner from Kota side towards Koteshwara side slowly, steadily and on the correct side of the road near Nataraj Bar, N.H.17, Koteshwara Village of Kundapura Taluk, at that time, a tanker bearing Reg.No.GJ/6X-7536 being driven by its driver, came from Kundapura side towards Udupi side, at a high speed, and in a rash and negligent manner and dashed against the Auto Rickshaw. Due to the said impact, claimant sustained grievous injuries. To prove negligence of the driver of lorry, claimant examined himself as PW.1 and marked 51 documents. He has specifically deposed that the accident occurred due to the rash and negligent driving of the lorry by its driver.
9. In his cross-examination, he has stated that the road is straight and he could see the vehicles coming from the opposite side. He saw the tanker at a distance of 50 meter away, the driver of the tanker while overtaking another vehicle came on the wrong side of the road and dashed against the Auto Rickshaw. Immediately after the 9 accident, complaint has been lodged against the driver of the lorry as per Ex.P2. On the basis of the complaint, the police have registered FIR as per Ex.P1. After thorough investigation, the police have filed charge sheet as per Ex.P7 against the driver of the lorry. The police have drawn spot mahazar and spot sketch as per Exs.P3 and P4 respectively. It is very clear from the sketch, the width of the tar road is 24 feet and existence of 3 feet wide mud road on western side. The Auto rickshaw was proceeding from Kota towards Kundapura side i.e., from South to North on the western side of the road and the tanker was proceeding from North to South on eastern side of the road. Considering the width of the tar road, the mid-line is 12 feet and the accident spot is on the tar road at a distance of 5 feet from western side tar road edge. It is not in dispute that the driver of the tanker was overtaking another vehicle, came on the wrong side of the road and dashed against the Auto Rickshaw. It is very clear from the evidence of the parties and materials available on record that there is no negligence on the part of the driver 10 of the Auto Rickshaw. The Tribunal only on the ground that the total width of the road is 24 feet and the accident spot is at a distance of 5 feet from the western tar road edge, held that the driver of the Auto Rickshaw could have taken the vehicle to left side and he could have avoided the accident. On that ground, the Tribunal has held that the driver of the Auto Rickshaw has contributed 25% of negligence to the accident, but there is no material on record to show that the driver of the Auto Rickshaw was negligent in causing the accident. Hence, it is very clear that the accident has occurred due to rash and negligent driving of the tanker by its driver alone.
10. In respect of quantum is concerned, due to the accident, the claimant has suffered the following injuries.
1. Segmental fractures radius left side(compound fracture),
2. Fracture medial 3rd clavicle left side,
3. Rib fracture 5/6 left side,
4. Punctured wound 1x1cm over left iliac crest and 11
5. Abrasion over right scapular area and right wrist.
He has examined Dr.Vivek as PW.2, who has assessed disability of 20% to the upper limb. Taking into consideration the injuries suffered by the claimant, and his avocation and age and considering the deposition of the doctor and wound certificate-Ex.P5, I am of the opinion that the whole body disability can be assessed at 10%. The Tribunal taking into consideration the oral and documentary evidence has rightly assessed monthly income of the claimant as Rs.6,000/-. At the time of the accident, he was aged about 42 years, multiplier applicable to the said age group is 14. Accordingly, loss of income due to disability has been reassessed as follows:
Rs.6,000 x 12 x 14 x 10/100 = Rs.1,00,800/-. The compensation awarded by the Tribunal on other heads is just and reasonable.
The claimant is entitled to a compensation of Rs.1,00,800/- instead of Rs.50,400/- under the head of 'loss of income due to disability', in addition to the 12 compensation which has been awarded by the claims Tribunal.
The Insurance Company is directed to deposit the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Mkm/-