Karnataka High Court

Smt. Manji vs Sri. Johnson Baretto on 5 January, 2021

Author: Nataraj Rangaswamy

                           1

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.

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

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

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,

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

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.

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

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

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

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

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

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.