Chandamma vs Gangaiah and Others

B. Manohar, J.—Appellant is the claimant. Being aggrieved by the judgment and award dated 17.06.2010 made in MVC No. 4881/2009 by the MACT, Bengaluru, she has filed this appeal.

The appellant filed a claim petition contending that on 18.6.2009 at about 3.00 p.m, while she was crossing the road near Laxmi Vallaba Kalyana Mantapa, Vasanthapura Main Road, Kumaraswamy Layout, Bangalore, a Hero Honda motor bike bearing Regn. No. KA-05/EE-8889 ridden by its rider in a rash and negligent manner came and dashed against the claimant, as a result of which, she sustained grievous injuries and fracture of both the bones of left leg and sustained other injuries to the body. Immediately, she was shifted to NIMHANS, Bangalore and taken first aid treatment and thereafter she was shifted to Sanjay Gandhi Accident Hospital. She was inpatient there from 18.6.2009 to 1.7.2009. During the course of treatment, she has undergone surgery. The implants were inserted to the left leg. She was under treatment for a period of four months. Prior to the accident, she was working as coolie and earning a sum of Rs. 4,500/- p.m. In view of the accident, she cannot do the work as coolie. Hence, she filed the claim petition seeking compensation of Rs. 6,00,000/-.

Though the respondent/owner of the vehicle was served with notice, he remained unrepresented. The Insurance Company filed statement of objections denying the averments made in the claim petition and also contended that due to the negligence on the part of the claimant, the accident had occurred. There is contributory negligence on the part of the claimant and rider of the motor bike and sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the MACT framed necessary issues.

The claimant in order to prove her case got examined herself as PW1 and the doctor, who treated the claimant as PW2 and got marked the documents as Exs.P1 to P12. On behalf of respondents, none of the witnesses were examined nor any documents were marked.

The MACT after considering the oral and documentary evidence let in by the parties and taking into consideration the mahazar, rough sketch, IMV report, held that due to negligence on the part of rider of the motorbike, the accident had occurred. However, the claimant has also contributed for accident due to her negligence to the extent of 20% since she crossed the road without observing the ongoing vehicles on either side.

With regard to the quantum of compensation is concerned, the Tribunal taking into consideration the injuries sustained i.e. fracture of both the bones of left leg, disability to an extent of 19% as assessed by the doctor, awarded a sum of Rs. 1,45,920/- towards future loss of income, Rs. 40,000/- towards pain and sufferings, Rs. 60,000/- towards loss of amenities and future happiness, Rs. 45,000/- towards medical expenses, Rs. 15,000/- towards conveyance, food, attendant & nourishment and Rs. 10,000/- towards future medical expenses, in all a sum of Rs. 3,15,920/-. Since the claimant had contributed to the accident due to her negligence to an extent of 20%, the Tribunal deducted 20% towards contributory negligence and awarded a sum of Rs. 2,52,736/- with interest at 6% p.a and further held that a sum of Rs. 10,000/- awarded as future medical expenses will not carry interest. Being dissatisfied by the quantum of compensation, the claimant has filed this appeal seeking for enhancement of compensation and also sought for setting aside the contributory negligence to an extent of 20% on the part of the claimant.

Smt. P.V. Kalpana, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal fixing the contributory negligence to an extent of 20% on the claimant is contrary to law in the absence of necessary evidence with regard to the negligence on the part of claimant. Further, the compensation awarded towards future loss of income and other heads are required to be enhanced. The claimant was working a as coolie prior to the accident. In view of fracture of both the bones of leg, she cannot do the coolie work and sought for enhancement of compensation.

On the other hand, Sri E.I. Sanmathi, learned Advocate appearing for respondent No. 2 argued in support of the judgment and award passed by the Tribunal contending that the compensation awarded by the Tribunal is in accordance with law. Though no document has been produced regarding the income, the Tribunal has taken the income at Rs. 4,000/- p.m. and awarded the compensation. With regard to the contributory negligence is concerned, instead of crossing the road on the zebra lane, the claimant had crossed the road without observing the on going vehicles. Fixing the contributory negligence to the extent of 20% is in accordance with law and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence.

The occurrence of accident and the injuries sustained by the appellant in the road traffic accident occurred on 18.6.2009 are not in dispute. The dispute is only with regard to the quantum of compensation as well as fixing the contributory negligence to an extent of 20% on the claimant. The records clearly disclose that due to the rash and negligent riding of the offending vehicle, the claimant has sustained injuries in the road traffic accident occurred on 18.6.2009 at about 3.00 p.m. The allegation in the claim petition is that due to rash and negligent riding of Hero Honda motorbike, the accident had occurred. However, the Tribunal was of the view that the claimant has also contributed negligence for the accident. Instead of crossing the road carefully on the zebra lane, the claimant was negligent while crossing the road. In view of that, the accident had occurred and the claimant has contributed negligence for the accident.

I have also gone through the rough sketch and other relevant records. The sketch, Ex.P5 clearly discloses that the claimant had crossed the road from south to north whereas the vehicles were moving from east to west. Ex.P5 further discloses that the offending vehicle crossed the median of the road and knocked the claimant. The rider supposed to have kept himself on the left side of the road. Instead of moving the vehicle on the left side of the road, the rider of the motorbike crossed the median of the road and knocked down the claimant. The finding of the Tribunal is that the claimant has contributed the negligence in the occurrence of the accident is erroneous in law. Hence, the finding of the Tribunal insofar as fixing the contributory negligence on the part of the claimant cannot be sustained.

With regard to the quantum of compensation is concerned, I find that there is no infirmity or irregularity in awarding the compensation on account of sustaining the fracture of tibia and fibula. The compensation awarded towards pain and sufferings and loss of amenities in life is in accordance with law. The MACT taking into consideration the entire aspects of the matter had awarded just and fair compensation. Accordingly, I pass the following:

The appeal is allowed in part. The judgment and award dated 17.6.2010 in MVC No. 4881/2009 passed by the MACT, Bengaluru, is modified. The claimant is not entitled for enhancement of compensation. However, the finding of the Tribunal with regard to contributory negligence to an extent of 20% on the part of the claimant is set aside. The claimant is entitled for a sum of Rs. 3,15,920/- with interest at 6% p.a.