Ganesh vs Mahantaiah Hiremath and Others

B. Sreenivas Gowda, J.—1. This appeal is by the claimant challenging the judgment and award passed by the Tribunal both on the ground of negligence and quantum.

With the consent of learned counsel appearing for the parties, the appeal is heard and disposed of finally.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 08.01.2003 due to the rash and negligent driving of the lorry bearing registration No. KA-19/7687 by its driver and liability of the insurer of the said vehicle, the points that arise for consideration in this appeal are:

"1. Whether the finding of the Tribunal on negligence in holding that accident has occurred due to contributory negligence of 75% on the part of the driver of the lorry and 25% on the part of the claimant in riding his motor cycle is sustainable in law?

Whether the compensation of Rs. 4,43,500/- with interest @ 8% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement?"

Sri. V.S. Hegde, learned counsel appearing for the appellant-claimant submits that though appellant was riding his motor cycle slowly and carefully by observing the traffic rules, the accident has occurred due to the rash and negligent driving of the driver of the lorry as evident from the FIR and Spot Mahazar produced at Exs.P1 and P2 respectively, the Tribunal has committed an error in holding that the accident has occurred due to contributory negligence of the driver of the lorry and the claimant.

Regarding quantum, he submits that compensation awarded by the Tribunal is on the lower side. Therefore, he prays for allowing the appeal.

Per contra, Sri. Anup Seetharam, for Sri. B.C. Seetharam, learned counsel appearing for the insurer of the lorry submits that there is no infirmity or illegality in the findings of the Tribunal either on negligence or on quantum warranting interference of this Court and he prays for dismissal of the appeal.

Regarding Point No. 1, claimant in support of his contention that though he was proceeding on his motor cycle on the left side of the road slowly and carefully, the accident has occurred due to the rash and negligent driving of the lorry by its driver has examined himself as PW.1 and has produced FIR and Spot Mahazar at Exs.P1 and P2 respectively. Whereas, the insurer of the lorry in support of their contention that the accident has not occurred due to the rash and negligent driving of the driver of the lorry and it was occurred due to the rash and negligent riding of the Motor Cycle by claimant himself have not adduced any evidence.

It is not in dispute that the accident was occurred on 08-01-2003 at 11.15 night at Ambalapadi junction and at the time of the accident, the claimant who was proceeding from Nittur towards Ambalapadi was taking right turn at Ambalapadi junction. No independent witness was examined from either side of the parties and charge sheet has also not been produced. The Tribunal considering the fact that the accident was occurred in the night and at Ambalapadi junction and no independent witness to the accident was examined from either of the parties has come to the conclusion that the accident has occurred due to contributory negligence of 75% on the part of the driver of the lorry and 25% on the part of the claimant in riding his motor cycle. I have carefully gone through the said finding of the Tribunal and I do not see any reason for interference. Hence, finding of the Tribunal on negligence is confirmed.

As per discharge summary and medical certificate produced at Ex.P171 and 172, claimant had sustained the following injuries:

"Closed head injury with right frontotemporal parietal acute SDH with right LMN facial palsy and Lt.6th nerve palsy with fracture right squamous temporal and left occipital bone with right hemiparesis."

PW.2-Dr. A. Raju, Neurosurgery Professor working at K.M.C. Hospital Manipal has opined that when claimant was brought to their hospital, he had no conscious and his right frontal bone was fractured and there was blood clot on the right side of the brain. He was operated. On account of the same, thinking capacity of the brain is reduced and there is stammering in his speech and there is decrease in the strength of the right side of the body. PW.2 has stated that claimant has suffered disability of 80% to the limb. As per disability certificate issued by him at Ex.P176, the claimant has suffered permanent disability of 50% and the Tribunal has taken the said disability as disability caused to the whole body.

Considering the nature of injuries sustained by the claimant, a sum of Rs. 30,000/- awarded by the Tribunal towards ''pain and suffering'' is very much on the lower side and it is deserved to be enhanced. Therefore, a sum of Rs. 75,000/- is awarded under this head.

As Rs. 85,000/- awarded by the Tribunal towards ''medical expenses'' is based on the medical bills produced by the claimant at Exs.P174 and P175 it is just and proper and there is no scope for enhancement under this head.

The claimant was treated as inpatient for 25 days at Kasturba Hospital, Manipal. Considering the duration of the treatment, a sum of Rs. 12,500/- is awarded towards ''incidental expenses'' such as conveyance, nourishment and attendant charges.

The claimant claims to have been earning Rs. 175/- per day by working as Mestri. But the same has not been established by adducing cogent evidence. In the absence of proof of income, considering his age as 22 years, year of accident as 2003 and his avocation as Daily wager, his income is assessed at Rs. 3,500/- per month as against Rs. 3,000/- awarded by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 5 months and therefore, a sum of Rs. 17,500/- is awarded towards ''loss of income during laid up period''.

There is no dispute between the parties regarding disability taken by the Tribunal at 50% to the whole body and applying ''18'' multiplier based on the age of the appellant. Now, the income of the claimant is assessed at Rs. 3,500/- p.m. If that is so, ''loss of future income'' works out to Rs. 3,78,000/- (Rs. 3,500/- x 12 x 18 x 50/100) and it is awarded as against Rs. 3,06,000/- awarded by the Tribunal.

Considering the nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness he has to undergo in his future life, a sum of Rs. 50,000/- is awarded towards ''loss of amenities''.

The nature of injuries suggest that claimant is required to undergo further treatment and has to spend some amount towards future medical and incidental expenses and therefore, a sum of Rs. 15,000/- is awarded towards ''future medical and incidental expenses'' as against Rs. 6,000/- awarded by the Tribunal..

Thus, the claimant is entitled for the following compensation:-

From Rs. 1,89,500/-, 25% is to be deducted towards contributory negligence on the part of the claimant and he is entitled for an additional compensation of Rs. 1,42,125/-.

Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs. 1,42,125/- with interest at 8% p.a. from the date of claim petition till the date of realisation.

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 65% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Grameena Bank/Post Office for a period of 3 years with a right of option to withdraw interest periodically. Remaining 35% of the amount with proportionate interest is ordered to be released in favour of the claimant.

The Tribunal while releasing 35% of the amount is directed to issue fixed deposit slip, so as to enable the claimant to withdraw the fixed deposit on its maturity without approaching the Tribunal once again and the Bank in which 65% of the amount will be kept in FD is directed to release the fixed deposit amount on maturity without insisting for any order from the Tribunal.

Sri. B.C. Seetharam, learned counsel is granted three weeks time to file vakalath for respondent No. 2-insurance company.

No order as to costs.