Narasimha vs Banibrato Sikdar and Others

P.D. Waingankar, J.—This appeal arises out of the judgment and award dated 7.10.2009 in MVC No. 747/2007 on the file of Motor Accident Claims Tribunal-V and Court of Small Causes, Bangalore.

The brief facts of the case of the claimant are that on 5.11.2006 at about 4.20 p.m., the appellant was proceeding in a motor bike towards Travellers Bunglow, Srirangapatna in Mysore to Bangalore Highway road, at that time, a Hyundai car bearing registration No. KA-09-N-9029 came in rash and negligent manner and dashed against the motor bike, as a result of the impact, the appellant sustained grievous injuries. He was treated at Basappa Memorial Hospital, Mysore as inpatient. He underwent surgeries. He spent substantial amount for his treatment. He lost his income during the period of treatment and despite best treatment, he suffered disability. He filed claim petition under Section 166 of M.V. Act claiming compensation on account of injuries sustained by him.

The claim petition was contested by the insurer of the Hyundai car on the ground that the accident occurred on account of total negligence on the part of the claimant himself. The Insurance company has denied all material averments made out in the claim petition including the averments with regard to the expenses incurred for treatment, avocation of the claimant, disability said to have been suffered by him.

The claim petition came up for consideration before the tribunal, before whom, on behalf of the claimant, three witnesses were examined as PWs-1 to PW-3, Exs-P1 to P14 were marked. The tribunal on appreciation of evidence and upon hearing the submissions made by both the learned counsel appearing for the parties recorded a finding that the accident and the resultant injury sustained by the claimant was on account of contributory negligence on the part of the claimant who was riding the motor cycle and the driver of the Hyundai car. Thus the tribunal awarded a total compensation of Rs. 1,23,850/- by fastening 50% negligence on the part of the claimant himself. Aggrieved by the quantum of compensation and 50% contributory negligence fixed on the claimant, this appeal is preferred by the appellant-claimant.

I have heard the submission made by learned counsel appearing for both the parties. Perused the records.

The submission of the learned counsel appearing for the claimant is that though there was no negligence on the part of the claimant, the tribunal has wrongly recorded a finding that it is a case of contributory negligence and thereby fixed 50% negligence on the part of the claimant. Learned counsel further submitted that the compensation awarded by the tribunal under all the heads is on the lower side and requires to be enhanced considerably.

The learned counsel for the insurance company on the other hand has argued that it is infact a case of total negligence on the part of the claimant himself. The tribunal upon appreciation of evidence rightly fixed contributory negligence on the part of the claimant and awarded the compensation and there is no scope of interference by this Court.

Having heard the submission made both the learned counsel for the parties and upon perusal of the material on record, the following points would arise for my determination:--

"1. Whether the compensation awarded by the tribunal is justified and reasonable?

Whether 50% contributory negligence fixed on the claimant is proper? "

Re-Point No. 1:--

The medical records disclose that in the accident, the claimant sustained fracture of tibia and fibula, left clavicle bone and fracture of left ankle joint, for which, he was treated in Basappa Memorial Hospital as inpatient for 23 days. He underwent three surgeries during the said period of hospitalization. The tribunal has awarded a sum of Rs. 30,000/- towards ''pain and agony'' which is definitely on the lower side. Having regard to the nature of injuries, that he underwent three surgeries and having regard to the period of hospitalisation, I am inclined to award a sum of Rs. 60,000/- towards ''injury, pain and suffering'' as against Rs. 30,000/- awarded by the tribunal. Further, the tribunal has awarded a compensation of Rs. 1,38,500/- towards ''medical expenses'' based on the medical bills produced by the claimant. Therefore, no interference is called for. Towards ''loss of income'' during the period of treatment, the tribunal has awarded as sum of Rs. 18,000/- by taking the income of the claimant at Rs. 3,000/- p.m. which is on the lower side. The claimant was aged 30 years at the time of accident. He was a married person, he was maintaining a family consisting of wife and three children. It is stated that he was an agriculturist. Necessary documents are also produced to show that he was the owner of the agricultural land. Under such circumstances, the income taken by the tribunal at the rate of Rs. 3,000/-p.m. is a meager income. Ends of justice will be met, if the income is taken at the rate of Rs. 5,000/- p.m.. Loss of income for a period of six months would therefore comes to Rs. 30,000/-. So an amount of Rs. 30,000/- is awarded towards loss of income during the period of treatment'' as against Rs. 18,000/-awarded by the tribunal.

Further, the tribunal has taken disability of the whole body at 8% though disability spoken by the Doctor is 24% of the whole body. No proper reasons are assigned by the tribunal for having taken 8% disability of the whole body. Since the Doctor who treated the claimant has itself spoken that the claimant is left with 24% disability of the whole body, I am inclined to take the disability at the rate of 24% of the whole body. In that case, total loss of future income on account of disability'' comes to Rs. 2,44,800/- (Rs.5,000 x 24%=1200x12x17). So an amount of Rs. 2,44,800/- is awarded towards ''loss of future income on account of disability'' as against Rs. 43,200/- awarded by the tribunal. The tribunal awarded a sum of Rs. 8,000/- towards ''future medical expenses''. It is submitted during the course of arguments that even after filing of this petition, the claimant underwent three surgeries. Definitely, he must have spent some amount towards the medical treatment. Though necessary bills are not forthcoming, I deem it just and proper to award a sum of Rs. 25,000/- towards ''future medical expenses'' as against Rs. 8,000/- awarded by the tribunal. Similarly, the amount awarded towards ''loss of amenities and unhappiness'' amounting to Rs. 10,000/- is also on the lower side. Since the claimant sustained fracture of tibia and fibula, fracture of clavicle bone and also fracture of ankle bone and that he suffered disability of 24% of the whole body, a sum of Rs. 30,000/- is awarded towards ''loss of amenities'' as against Rs. 10,000/- awarded by the tribunal. Thus the claimant is held to be entitled for compensation as under:--

Re-Point No. 2:--

Having regard to the evidence placed on record and upon going through the police documents, the tribunal has rightly recorded a finding that the accident occurred on account of negligence of both the claimant and the driver of the car in equal proportion. I have no reason to interfere in the said finding.

For the reasons stated above, the appeal filed by the appellant-claimant is allowed-in-part. The judgment and award dated 7.10.2009 in MVC No. 747/2007 on the file of Motor Accident Claims Tribunal-V and Court of Small Causes, Bangalore, stands modified. The claimant is awarded compensation of Rs. 2,64,150/- as against Rs. 1,23,850/- being 50% of the total compensation determined. There shall be enhancement of compensation of Rs. 1,40,300/- over and above the compensation awarded by the tribunal with 6% interest per annum from the date of petition till the date of realization.

The respondent No. 2-Insurance company is directed to deposit enhanced compensation of Rs. 1,40,300/- together with 6% p.a. interest on the enhanced compensation from the date of petition till the date of realization within a period of three weeks from the date of receipt of copy of this judgment.

In the event of deposit, the entire compensation amount shall be released in favour of the appellant-claimant.

Office to draw the award accordingly.