Basawaraj vs Vaijinath Karbasappa Share <BR> Vaijinath Karbasappa Share Vs Basawaraj

Anand Byrareddy, J.—These appeals are heard. MFA No. 30609/2008 is preferred by the claimant and MFA No. 30281/2009 is preferred by the owner of the vehicle, involved in the accident.

The facts are as follows.

The claimant was said to be travelling on his motorcycle bearing No. KA-38/H-9288, on 24.10.2004, towards Naubad and when they neared Assistant Garrisons Engineer''s Air Force Station office, Bidar, at about 21.00 hours, a car bearing No. KA-38/M-0864 coming from the opposite direction had dashed against the vehicle of the petitioner, as a result of which he had suffered serious injuries to his right knee, head and a fracture of the right femur apart from other injuries. It is after securing the treatment for the same and he having been found assessed with a disability to the particular limb to the extent of 55.48% and correspondingly a whole body disability to 22%, the claimant had preferred a claim petition before the Motor Accident Claims Tribunal. The same was resisted both by the Insurance Company, which had insured the offending vehicle, as well as the owner of the vehicle.

The Tribunal after examining the evidence on record and taking into account the rival contentions, had proceeded to hold that from the evidence produced by the claimant, the accident had been proved, however, has gone on to hold that it was the common experience of the Tribunal that persons riding motorcycles were generally rash and negligent and since it was head on collision, the contention of the Insurance company that-there was contributory negligence to the extent of 50% on the part of the claimant, had proceeded to fasten the liability to the extent of 50% on the claimant himself and to that effect has reduced the compensation. In so far as the injuries are concerned, the Tribunal has declared that the disability as assessed by the medical practitioner at 55.48% could not be accepted and cannot be believed. Therefore, the evidence of PW. 2 in respect of disability was not accepted. In this fashion it has proceeded to award a global compensation for the fractures at Rs. 60,000/- and towards medical expenses at Rs. 24,322/- and has proceeded to deduct 50% of the same to hold that there was contributory negligence on the part of the claimant hence, he is entitled for a total compensation of only Rs. 42,161/-. The Tribunal has also held that since the driver of the car has not produced a valid driving licence, the Insurance Company would be absolved of the liability and 50% of the liability is imposed on the owner of the vehicle. It is in this background, that the owner of the vehicle is before this Court. In the appeal filed by the owner of the vehicle, an application is filed seeking to produce the driving licence as additional evidence and it is contended that the liability could not be fastened on the owner of the vehicle.

The learned counsel for the appellant-claimant would point out that in so far as the compensation towards conventional heads are concerned are not considered by the Tribunal at all. Even in respect of those which are considered there has been unfair assessment of compensation and totally unreasonable and reasoning is totally unfair to the claimant. Therefore, he would submit that on the face of it the appellant-claimant would be entitled to substantial enhancement of compensation apart from being granted compensation under the conventional heads as the injuries are serious in nature which has led to a disability to the extent of 55.48% to the particular limb and hence appropriate compensation be awarded to the appellant.

The learned counsel appearing for the Insurance Company would fairly concede that in so far as the licence of the driver of the offending vehicle which is sought to be produced as additional document by the owner of the vehicle is found to be in order and therefore it cannot be denied that the insurer cannot be absolved of the liability. The other aspect as to the disability of the claimant is concerned, he would submit that the assessment of the disability by the medical practitioner at 55.48% is on the higher side and the Tribunal having chosen to ignore the same, cannot be faulted. Further, since the appellant had not produced medical bills, the Tribunal has restrict the claim towards medical expenses to Rs. 24,322/- and seeks to justify the same.

However, on a plain examination of the judgment and award, the first observation of the Tribunal that the accident was proved in terms of the first information report and spot panchanama, it could not be said that the claimant could be accused of contributory negligence and the opinion of the Tribunal is that persons riding motorcycles are rash and negligent is an unfair and unreasonable observation. Therefore, having regard to the nature of injuries suffered by the claimant, a sum of Rs. 30,000/- would be in order towards pain and suffering. The claimant was inpatient for a period of 14 days and he would have suffered loss of income during the laid up period. The appellant was said to be a businessman and he was earning Rs. 3,000/- per month. If Rs. 3,000/- is taken as monthly income which is nominal, Rs. 10,000/- is awarded as loss of income during the laid up period. In so far as the loss of amenities, the appellant would be entitled to Rs. 40,000/-. In so far as the food, attendant and nourishment charges during the treatment period, the appellant would be entitled to Rs. 15,000/- and loss of future income on account of disability and injury suffered the appellant would be entitled to compensation on the following basis. The disability is taken at 22%, his monthly income is taken at Rs. 3,000/- and having regard to the age of the appellant-claimant, the multiplier applicable is 17 hence, the appellant would be entitled to compensation towards loss of future earning at Rs. 1,34,640/-. In so far as the medical expenses are concerned, the appellant has produced medical bills though the Tribunal has chosen to award Rs. 24,322/- and is acceptable and it does not require any enhancement. Therefore, the appellant is entitled to a total compensation of Rs. 2,53,962/- with interest at 6% per annum from the date of the claim petition.

In so far as the appellant in MFA No. 30281/2009 is considered since there was insurance coverage and there is a valid driving licence of the driver, the appellant is absolved of the liability fastened and the Insurance Company shall bear the entire liability of payment of the aforesaid compensation.

The appeals are accordingly allowed.

The amount deposited by the appellant in MFA No. 30281/2009 shall be refunded to the appellant.