Ramesh Gowda vs Vijaya Fernades and Others

N.K. Patil, J.

This appeal by the injured claimant is directed against the judgment and award dated 3rd September 2012, passed in MVC No. 73/2009, by the Senior Civil Judge, Motor Accident Claims Tribunal, Belthangady (for short, ''Tribunal''), on the ground that, the Tribunal is not justified in fixing the contributory negligence in the ratio of 50:50 on the part of the riders of both vehicles and the same is liable to be modified and also on the ground that the quantum of compensation awarded by Tribunal is on the lower side.

The facts of the case as stated in the claim petition are that, at about 1:00 P.M., on the ill-fated day, i.e. on 03-06-2008, when the injured claimant was riding his motor cycle bearing Registration No. KA-19/R-5978 from Uppmangady to his house in Ilanthila village, near Kaje cross in Uppmangady-Belthangady tar road, a private bus Varun bearing Registration No. KA-19/6313 came at a high speed, being driven by its driver in a rash and negligent manner, dashed against the motor cycle of the appellant. As a result of the collision, the appellant was thrown out of the motor cycle on the tar road and he suffered grievous injuries on account of the same. Immediately, he was shifted to Pragathi Speciality Hospital, Puttur and he underwent various surgeries to his face and he ultimately took treatment as in-patient for a period of 25 days in the said Hospital.

It is the case of the claimant that he sustained grievous injuries as per Wound Certificate at Ex. P3, viz. commuted # involving frontal bones, walls of (R) orbit, tripod # zygomatic bone, guator wing of sphenoid nasal bones, lamina papyraceal, (R) mandible, walls of (R) maxillary air sinus, nasal speture, # involving bilateral frontal air sinuses and orbital roof and floor, subdural haematoma in (R) occipital region (8 mm), contusion in (R) frontal lobe and pneumocepthalus, extensive periorbital haematoma right side, right periorbital planes are showing fat enhancement and discontinuity of optic nerve and cerebral edema. On account of the, he has taken treatment in St. John''s Medical College Hospital, as in-patient and spent reasonable sum towards conveyance, nourishing food and attendant charges apart from medical expenses and therefore, he has to be compensated reasonably.

On account of the injuries sustained in the road traffic accident, the injured claimant filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 20,00,000/- against the respondents and the same was numbered as M.V.C. No. 73/2009. The said claim petition had come up for consideration before the Tribunal on 3rd September, 2012. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition filed by claimant herein, in part, awarding compensation of a sum of Rs. 2,30,745/-, with 6% interest per annum, fixing 50% negligence on the part of the riders of both the vehicles. Being aggrieved by the contributory negligence fixed on the part of the riders of both the vehicles and also seeking enhancement of compensation, the appellant has filed this appeal.

We have heard Shri. Keshava Kumar for Smt. Sheela Krishna, learned counsel appearing for the appellant and learned counsel appearing for Insurer, gone through the grounds urged in the memorandum of appeal filed by appellant carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.

Learned counsel appearing for appellant submitted at the outset that, the accident occurred on 03-06-2008 and on account of the grievous injuries sustained in the said road traffic accident, the appellant has undergone treatment for a period of 28 days as in-patient in the Hospital and spent considerable sum towards conveyance, nourishing food and attendant charges and suffered mental pain and agony during treatment and follow-up treatment period. He further submitted that the Doctor has assessed permanent functional disability at 15% towards limb, but the Tribunal has taken only 5% as permanent disability, when in fact, considering the nature of injuries sustained, age and avocation of the appellant, the Tribunal ought to have atleast assessed the whole body disability at 10%, to meet the ends of justice. He further submitted that the appellant has taken follow-up treatment for a period of minimum three months and lost the income during treatment period. Further, the appellant has to suffer future discomforts and unhappiness. Therefore, he vehemently submitted that the compensation awarded by Tribunal under all the heads is on the lower side and liable to be enhanced, by modifying the impugned judgment and award passed by Tribunal.

Regarding contributory negligence fixed on the part of the riders of both the vehicles at 50% each, he submitted that the negligence fixed on the part of the appellant is on the higher side and liable to be reduced for the reason that as per Ex. P5, spot mahazar and Ex. P6, spot sketch, there is major contributory negligence on the part of the driver of the private Bus Varun bearing Registration No. KA-19/6313. It being the heavy vehicle, the Tribunal ought to have fixed higher contributory negligence on the part of the driver of the said private bus. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by reducing the contributory negligence fixed on the part of the rider of the motor cycle.

As against this, learned counsel appearing for Insurer submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, and other material on record, taking into considering the age, avocation, nature of injuries sustained, nature and duration of treatment undergone, etc. and the operations undergone, functional and whole body disability assessed, has awarded just and reasonable compensation, and considering the documentary evidence at Exs. P5 and P6, is justified in fixing 50% negligence each on the part of the insurers of both the vehicles, i.e. motor cycle and private bus. Hence, interference in the same is uncalled for.

After hearing the learned counsel appearing for the appellant and learned counsel appearing for Insurer, after perusal of the impugned judgment and award passed by Tribunal including the original records available on file and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in this appeal are:

"1] Whether the Tribunal is justified in fixing the contributory negligence in the ratio of 50:50, on the part of the insurers of the motor cycle and the private bus?

2] Whether the quantum of compensation awarded by Tribunal is just and reasonable?"

Re-Point No. 1] : As rightly pointed out by learned counsel appearing for Insurer, the contributory negligence fixed by the Tribunal at 50% each on the part of the insurers of both the motor cycle bearing Registration No. KA-19/R-5978 and Private Bus bearing Registration No. KA-19/6313 is just and proper and it does not call for interference.

After careful perusal of the reasoning given by Tribunal for fixing contributory negligence at 50% each on the part of the insurers of motor cycle and private bus, it can be seen that the Tribunal has specifically observed after proper evaluation of Ex. P5, spot Mahazar and Ex. P6, spot sketch that, even though it is submitted that the rider of the motor cycle drove his vehicle extremely on the right side and the driver of the private Bus drove the same on the left side of the road, as per spot sketch, the accident has occurred in the middle of the road and it clearly proves that the accident occurred due to contributory negligence on the part of the rider of motor cycle and also the driver of the Bus. Thus, the Tribunal, based on the oral and documentary evidence available on file, and other relevant material has rightly fixed the contributory negligence on the part of the insurers of both the motor cycle and private bus at 50% each. The reasoning given by Tribunal at paragraph 11 of its judgment and just and proper and well founded and it does not call for interference nor the appellant has made out a good case in his favour for modifying the contributory negligence. Accordingly, we answer point No. 1] in the ''Affirmative''.

Re-Point No. 2]: After going through the entire material available on file, it emerges that, occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. It is further not disputed that, as per Wound Certificate, Ex. P3, the appellant has sustained communited # involving frontal bones, walls of (R) orbit, tripod # zygomatic bone, guator wing of sphenoid nasal bones, lamina papyraceal, (R) mandible, walls of (R) maxillary air sinus, nasal speture, # involving bilateral frontal air sinuses and orbital roof and floor, subdural haematoma in (R) occipital region (8 mm), contusion in (R) frontal lobe and pneumocepthalus, extensive periorbital haematoma right side, right periorbital planes are showing fat enhancement and discontinuity of optic nerve and cerebral edema. He has taken treatment in the Hospital as in-patient for nearly 28 days. The Doctor has assessed 15% disability towards particular limb and the Tribunal, taking 1/3rd of the same, has assessed 5% as the whole body disability. The same is on the lower side. Considering the young age of the appellant and his avocation and looking at the nature of injuries, we re-assess the whole body disability at 10%, to meet the ends of justice. The appellant being aged about 24 years, has to endure this disability for the rest of his life. Further, it can be seen that the monthly income assessed by Tribunal at Rs. 3,000/- is on the lower side. Therefore, considering the age, avocation and the year of accident, we re-assess the monthly income of the appellant at Rs. 4,000/-, to meet the ends of justice. Accordingly, having regard to the nature of injuries sustained, nature and duration of treatment under gone, age, avocation, year of accident, functional and whole body disability, etc. we award a sum of Rs. 60,000/- towards injury, pain and sufferings as against Rs. 40,000/-, Rs. 25,000/- towards conveyance, nourishing food and attendant charges as against Rs. 6,000/-, Rs. 12,000/- towards loss of income during treatment period at the rate of Rs. 4,000/- per month for a period of three months as against Rs. 2,000/-, and Rs. 86,400/- (i.e. Rs. 4,000/- x 12 x 18'' x 10/100) towards loss of future income as against Rs. 32,400/- awarded by Tribunal and Rs. 30,000/- towards loss of amenities, discomfort and unhappiness as the Tribunal has not awarded any compensation.

However, the Tribunal is justified in awarding a sum of Rs. 1,25,345/- towards medical expenses as per the medical bills and prescriptions and hence, interference in the same is not called for. Thus, in all, Rs. 3,38,745/- is awarded on account of the injuries sustained by the appellant as against the compensation of Rs. 2,30,745/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 1,08,000/-. Accordingly, we answer point No. 2 in the ''Negative'' and enhance the compensation as under.

The total compensation would workout to Rs. 3,38,745/- as against Rs. 2,30,745/-. The enhanced compensation would be Rs. 1,08,000/- with 6% interest per annum.

In view of upholding the contributory negligence fixed by Tribunal at 50% each, as per point No. 1 above, on the part of the insurers of the motor cycle as well as the private Bus, the appellant is entitled to only 50% of the enhanced compensation of Rs. 1,08,000/-, which comes to Rs. 54,000/- with interest at 6% per annum, from the date of petition till the date of realization.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by the injured appellant/rider of the motor cycle is allowed in part.

"The impugned common judgment and award dated 3rd September 2012, passed in MVC No. 73/2009, by the Senior Civil Judge, Motor Accident Claims Tribunal, Belthangady, is hereby modified so far as it relates to only quantum of compensation;

The contributory negligence fixed by the Tribunal in the ratio of 50:50, on the part of the rider of the motor cycle and the driver of the private Bus, is hereby upheld, to meet the ends of justice.

Thus, the appellant/rider of motor cycle would be entitled to 50% of enhanced compensation of Rs. 1,08,000/-, i.e. Rs. 54,000/- with 6% interest per annum, from the date of petition till the date of realization;

Accordingly, the Insurer of private bus shall deposit 50% of Rs. 1,08,000/-, i.e. Rs. 54,000/- with 6% interest per annum, from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of this judgment;

Immediately on such deposit by the Insurer, the entire sum shall be released in favour of the appellant, forthwith.

Office to draw award, accordingly.

Shri. K Suryanarayana Rao, learned counsel is permitted to file vakalath on behalf of the Insurer, within four weeks from today.