Murtuzakhan and Others vs KSRTC and Others

N.K. Patil, J.

These two appeals by the claimant and by the Insurer are arising out of the same judgment and award dated 07/03/2009, passed in MVC No. 1952/2006, by the District Judge, Fast Track Court-I, Shimoga, (hereinafter referred to as '' Tribunal'' for short).

The Tribunal, by its judgment and award, has awarded a sum of Rs. 3,81,741/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the claimant for a sum of Rs. 25,00,000/-, on account of the injuries sustained by him in the road traffic accident.

In brief, the facts of the case are:

"The claimant was aged about 50 years as on the date of the accident, hale and healthy prior to the accident and working as Senior Manager in MPM, Bhadravathi. That on 9.11.1997 at about 6.20 a.m. claimant was travelling in KSRTC bus bearing Reg. No. KA.25.F.906 and when the said bus was moving near Hosakalianaikanahalli near Arasikere, at that time, the driver of the Lorry bearing Reg. No. KA.18.4133 came from opposite direction in a rash and negligent manner and dashed to the right side of the bus and caused the accident. Due to which, claimant has sustained grievous injuries to his leg and other parts of the body. Immediately, he was taken to Hospital, where he took treatment as inpatient, underwent surgery and thereafter, on the advice of the Doctor, he has taken bed rest and follow up treatment."

It is the further case of the claimant that, he spent considerable amount towards medical expenses and other incidental charges and on account of injuries sustained, he suffered permanent disability at 60% to the limb. Therefore, claimant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other materials available on file, has allowed the claim petition in part, awarding the compensation of Rs. 3,81,741/- with interest at 6% p.a., from the date of petition till its realization.

Being aggrieved by the said judgment and award, claimant has filed an appeal seeking enhancement of compensation contending that, the compensation awarded by the Tribunal is inadequate and it requires to be enhanced and the Insurer has filed an appeal contending that the compensation awarded by the Tribunal is on the higher side and that the Tribunal has erred in not fixing any contributory negligence on the part of the driver of the bus belonging to the KSRTC.

We have heard learned counsel appearing for the claimant and learned counsel appearing for the Insurer.

The submission of the learned counsel appearing for claimant Smt. Sreevidya, G.K., at the out set is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards conveyance, nourishing food and attendant charges and towards loss of amenities, discomforts and unhappiness and therefore, it is liable to be enhanced. To substantiate the said submission, she submitted that, claimant was aged about 50 years, hale and healthy prior to the accident, working in Mysore Paper Mills Ltd., Bhadravathi as Senior Manager drawing the salary of Rs. 15,500/- per month as per Ex. P6. In the accident, he has sustained two simple injuries and two grievous injuries as per Ex. P4-wound certificate, on account of which, he has taken treatment, underwent surgery and taken bed rest and follow up treatment. He examined the Doctor, who after clinical examination has assessed the disability at 60% to particular limb and 1/3rd of which, i.e. 20% to the whole body, he has spent considerable amount for treatment and other incidental expenses and disability and discomforts persists through out his life and it would affect his happiness in future life. But these aspects of the matter have not been considered or awarded reasonable compensation by the Tribunal. Therefore, she submitted that the impugned judgment land award passed by the Tribunal is liable to be modified by enhancing the compensation reasonably.

Per contra, Sri. M.U. Poonacha, learned counsel for Insurer, vehemently submitted that, the Tribunal has erred in fixing the entire negligence on the part of the driver of the lorry which was insured with it holding that accident in question was caused solely due to the rash and negligent driving by the driver of the Lorry bearing Reg. No. KA.18.4133 without fixing any negligence on the part of the driver of the bus belonging to the Corporation. To substantiate the said submission, he submitted placing reliance on the judgment and award passed in MVC No. 37/1998 and submitted that, the Tribunal ought to have considered the judgment and award passed by the Addl. MACT, Arasikere in MVC No. 37/1998 which was arisen out of the very same accident, produced at Exs. R1 and R2 wherein, the said Tribunal has clearly held that the accident in question took place due to the contributory negligence of the driver of the Lorry bearing Reg. No. KA.18.4133 and the driver of the KSRTC Bus bearing Reg. No. KA.25.F.906 and fixed the negligence at 60% on the driver of the lorry and 40% on the driver of the bus. That itself is sufficient and binding on the Tribunal to fix negligence in this case in the same ratio. Further he submits that the compensation awarded by the Tribunal is on the higher side and is liable to be reduced. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by fixing negligence on the part of the driver of the Lorry and the driver of the KSRTC Bus in the ratio of 60:40 and by reducing the compensation awarded.

After hearing the learned counsel for both the parties, after careful perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are:

"(i) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the Lorry which was insured with the Insurer is sustainable in law ?

(ii) Whether the compensation awarded by the Tribunal is just and reasonable."

Re. Point No. 1:

After careful perusal of the oral and documentary evidence available on file, it emerges that, occurrence of the accident and the resultant injuries sustained by the claimant as per Ex. P4-Wound certificate is not in dispute. Further, it is also not in dispute that two vehicles are involved in the accident, viz., Lorry bearing Reg. No. KA.18.4133 and the KSRTC bus bearing Reg. No. KA.25.F.906.

It is pertinent to note that, the Tribunal, after discussing the oral and documentary evidence in Paras- 11 and 12 of its judgment has observed that, from the evidence of PW1, it can be seen that the accident has occurred on 9.11.1997 at 6.30 a.m. near Arasikere on B.H. Road, when he was traveling KSRTC bus bearing Reg. No. KA.25.F.906 and at that time the Lorry bearing No. KA.18.4133 came in the opposite direction, dashed to the right side of the bus and caused the accident and on going through the FIR it is seen that the driver of the bus has filed the complaint against the driver of the Lorry. Further, the Tribunal has observed that, in the complaint, it is specifically stated that 2nd respondent was driving the bus on its left side and the 4th respondent came driving the lorry in the opposite direction to his right side and dashed to the right side of the bus and from the driver door upto the rear wheel. As a result, the right side of the body of the bus was fully damaged and Ex. P2-Spot mahazar, it is seen that the left wheels of the bus are on the mud road on the left side and all the four wheels of the lorry are on the cement road portion which shows that the lorry has come to its extreme right side and dashed to the bus. Further, the Tribunal has observed that the bus driver has made his maximum efforts to avoid the accident and therefore, from the spot mahazar and the complaint it become very clear that this accident has occurred due to the sole negligence by the driver of the lorry and there is no contribution of the bus driver. After re appreciation of the contents of the spot mahazar and complaint, it emerges that the accident has occurred due to the sole negligence on the part of the driver of the lorry and there is no contribution by the driver of the bus. Therefore, the said reasoning recorded by the Tribunal after critical evaluation of the oral and documentary evidence available on file is just and reasonable and therefore, interference by this court is not called for.

So far as the submission of the learned counsel appearing for the Insurer that, the Tribunal ought to have fixed contributory negligence on the part of the driver of both the vehicles in the ratio of 60:40 as per the judgment and award passed by the Addl. MACT, Arasikere in MVC No. 37/1998 which was arisen out of the very same accident as per Exs. R1 and R2 is concerned, the said submission cannot be accepted and is liable to be rejected, for the reason that, the Tribunal, after due consideration of the material on record has specifically recorded the finding of fact by assigning valid and cogent reasons that the entire negligence is on the part of the driver of the lorry based on the contents of spot mahazar and complaint that, the entire portion of the lorry was on the cement road and standing of the bus portion shows that, it is on the mud road which clearly shows that the entire negligence is on the part of the driver of the lorry and there is no contribution by the driver of the bus. Therefore, the Tribunal has justified in holding that the accident had occurred due to sole negligence on the part of the driver of the lorry which is well considered and well founded one and therefore, interference by this Court is not called for. Therefore, the above submission made by the learned counsel appearing for the Insurer is liable to be rejected and accordingly, it is rejected.

Re. Point No. 2:

The Tribunal, after assessing the oral and documentary evidence and other materials available on record, has justified in awarding a sum of Rs. 1,20,741/- towards medical expenses and Rs. 1,96,000/- towards loss of income during the period of treatment from 10.11.97 to 1.12.1998 and therefore, it does not call for interference.

However, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards conveyance, nourishing food and attendant charges, towards loss of amenities on account of injuries and therefore, it needs to be enhanced reasonably. After revaluation of the original records available on file, it emerges that, claimant was aged about 50 years, hale and healthy prior to the accident, working as Senior Manager in Mysore Paper Mills Ltd., Bhadravathi and drawing the salary of Rs. 15,500/- per month as per Ex. P6. On account of the injuries sustained by the claimant, he has taken treatment and follow up treatment for three months. He examined the Doctor, who after clinical examination has assessed the disability at 60% to the limb and 1/3rd of which, i.e. 20% would be the whole body disability. He might have spent reasonable amount towards conveyance and other incidental charges, discomforts and happiness persists through out his life, he has to pull on with the said disability and he might have undergone pain and agony during the period of treatment and therefore, the same has to be compensated reasonably. Taking all these aspects into consideration, we award a sum of Rs. 50,000/- towards injury, pain and sufferings instead of Rs. 30,000/-, Rs. 15,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 10,000/-, Rs. 1,50,000/- towards loss of amenities, discomforts and unhappiness in future life instead of Rs. 25,000/-. In all, the claimant is entitled to the total compensation of Rs. 5,31,741/- and the break- up is as follows:

For the foregoing reasons, the appeal filed by the claimant is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merits.

The impugned judgment and award dated 07/03/2009, passed in MVC No. 1952/2006, by the District Judge, Fast Track Court-I, Shimoga, is hereby modified, awarding compensation of Rs. 5,31,741/- instead of Rs. 3,81,741/- awarded by the Tribunal. The enhanced compensation comes to Rs. 1,50,000/- with interest at 6% p.a., from the date of petition till its realization (excluding interest from the date of filing the appeal till 7.10.2013).

The Insurer is directed to deposit the enhanced compensation, with interest at 6% p.a., from the date of petition till its realization (excluding interest from the date of filing the appeal till 7.10.2013) within three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,50,000/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the claimant in any Nationalized or Scheduled bank for a period of 5 years and renewable by another 5 years, with liberty reserved to the claimant to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 50,000/- with proportionate interest shall be released in favour of the claimant, immediately, on deposit by the Insurer.

The amount deposited by the Insurer in M.F.A. No. 3562/2009 shall be transmitted to the jurisdictional Tribunal immediately.

Draw the award, accordingly.