C. Jayaram and Others vs N.V. Mohankumar and Others

B.S. Patil, J.—This appeal is filed by the injured claimant seeking enhancement of compensation for the injuries suffered in a motor vehicle accident that occurred on 04.10.2003.

The claimant sustained fractural injuries while he was proceeding on the scooter bearing registration No. KA14 H 9463 as a pillion rider. When the scooter was proceeding near Jayshree Talkies, Bhadravathi, a Police Jeep belonging to respondent No. 2 bearing registration No. KA14 G 579 driven in a rash and negligent manner with high speed dashed against the scooter causing injuries to the rider of the scooter and grievous injuries to the pillion rider/appellant herein.

Appellant instituted claim petition seeking compensation. He examined himself as P.W. 1. The rider of the scooter, who also suffered injuries, instituted a separate claim petition and both the claim petitions were clubbed, tried together and have been disposed of by a common judgment. Rider of the scooter was examined as P.W. 2. Exs. P1 to P20 were produced and marked. Appellant herein did not examine the Doctor. However, he has produced medical records including the wound certificate - Ex. P5 and treatment certificate - Ex. P6. No evidence was led in by the respondents.

The Tribunal has come to the conclusion by examining the medical records, particularly the certificate issued regarding the nature of treatment given to the appellant that claimant had suffered fracture of 4th, 5th and 6th ribs on the right side of his chest and also fracture of L2 vertebra. This is also probablised by the wound certificate issued. Taking note of the same and in the absence of any evidence of the Doctor, the Tribunal has awarded compensation under different heads as under along with interest at 6% p.a.

The Tribunal has come to the conclusion that there was contributory negligence on the part of the rider of the scooter as there was no material to establish, as asserted by the claimant, that jeep came from the hind side and dashed against the scooter. To arrive at this conclusion, the Tribunal has also referred to the complaint in which the complainant/rider of the scooter did not mention as to whether the scooter was dashed against by the jeep from the hind side.

Learned counsel for the appellant submits that contributory negligence attributed to the rider of the scooter is not based on any material and is illegal. It is also contended by him that the Tribunal has not awarded just and reasonable compensation having regard to the nature of the serious injuries suffered by the claimant.

Learned Additional Government Advocate supports the judgment and award passed by the Tribunal. He contends that in the absence of any evidence of the Doctor, question of enhancing the compensation does not arise. He also submits that findings regarding contributory negligence are just and proper and do not require interference by this Court.

Having heard the learned counsel for both parties, the twin points that arise for consideration in this appeal are:

"i) Whether the Tribunal was right and justified in recording a finding that there was contributory negligence to the extent of 40% on the part of the rider of the scooter?

ii) Whether compensation awarded in a sum of Rs. 57,500/- requires to be enhanced, if so, at what rate?"

The spot sketch depicting the accident has not been produced and marked in evidence. The complaint before the Police has been filed by the rider of the scooter vide Ex. P3, wherein he has stated that the jeep belonging to the respondent driven in a rash and negligent manner dashed against the scooter. There is no material to support the findings of the Tribunal that the scooterist was also negligent. Except stating that while filing the complaint, rider of the scooter did not mention regarding the jeep coming from hind side and dashing against the scooter whereas in his evidence he has asserted the same, nothing is forthcoming to support the said finding of the Tribunal.

In such circumstances, the spot sketch of the accident assumes significance. In addition, there is no evidence on the part of the driver of the jeep, which would have thrown light on the alleged negligence on the part of the scooterist. Nothing prevented the driver of the jeep to enter the witness box and depose regarding the same. The scooterist, on his part, has not only filed the complaint alleging negligence on the part of the driver of the jeep, but has deposed in his evidence that it was due to the negligence of the driver of the jeep the accident occurred. The driver of the jeep, according to PW1 came from hind side and dashed against the scooter. In the absence of any other evidence, the Tribunal was in error in recording a finding that the scooterist had contributed to the accident to the extent of 40%. Therefore, this finding deserves to be set aside as it is not supportable from the evidence on record.

Insofar as quantum of compensation is concerned, although the claimant has not examined the Doctor who treated him, the Tribunal has rightly come to the conclusion, based on the wound certificate and the certificate issued by the Hospital regarding the nature of treatment given that the claimant suffered fracture of 4th, 5th and 6th ribs on the right side of his chest and fracture of L2 vertebra. Therefore, amount of Rs. 40,000/- awarded towards pain and suffering requires to be marginally enhanced by awarding additional sum of Rs. 10,000/-. No compensation is awarded towards food and nourishment and other incidental expenses incurred during the period of treatment. Hence, a sum of Rs. 10,000/- under this head deserves to be allowed. No compensation has been awarded towards loss of earnings during laid up period. Hence, a sum of Rs. 10,000/- deserves to be allowed under this head. Thus, the compensation awarded under different heads will be as under:

Accordingly, both the points raised are answered in favour of the claimant. Appeal is allowed in part. Claimant is held entitled to total compensation in a sum of Rs. 87,500/- along with interest at 6% p.a. from the date of petition till realization.