Sri B M Abdul Jaleel vs Sri Cyril Jerry Lobo
2021 Latest Caselaw 365 Kant

                        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

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. 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. 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

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.

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'.

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%.

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

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

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/-

(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

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/-.

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