S. Moin Pasha vs Smt.Vanitha Lokesh

Mr. B. Manohar, J.—Appellant is the claimant, being aggrieved of the judgment ana award dated 19.11.2013 made in MVC No. 4200/2011 passed by the Motor Accidents Claims Tribunal, Bangalore, fastening the contributory negligence to an extent of 50% on the claimant and also with regard to the quantum of compensation, filed this appeal.

The appellant filed a claim petition contending that on 17.7.2010 at about 1.00 p.m. while he was proceeding in a motor bike bearing Registration No. KA-32-U-1931 at Panduranga Layout Main Road, J.P. Nagar, at that time a car bearing Registration No. KA-04-MG-7193 driven by the driver in a rash and negligent manner dashed against the motor bike. Due to that, the claimant fell down and sustained grievous injury to his mouth, chest and all over the body. His motor bike was also completely damaged. Immediately alter the accident, he was shifted to Apollo Hospital. He has spent more than Rs. 50,000/- towards the treatment. He claimed that due to the rash and negligent riding of the car, accident occurred. It was insured with the second respondent. Both respondents 1 and 2 are liable to compensate the claimant and sought for compensation of Rs. 2,25,000/-.

Though the first respondent served with notice, remained unrepresented. Second respondent Insurance Company filed the written statement denying the entire averments made in the claim petition and also rash and negligent driving of the car. The rider of the motor bike did not possess the valid and effective driving licence as on the date of accident. Hence, the Insurance Company is not liable to compensate the claimant.

On the basis of pleadings of the parties, the Tribunal framed the following issues:

i) Whether the petitioner proves that on 17.7.2010 at about 1.00 p.m. when the petitioner was riding his motor cycle at Panduranga Layout main Road, J.P. Nagar, Bangalore, at that time, the car bearing Registration No. KA-04-MG-7193 came at high speed in a rash and negligent manner and dashed against the petitioner''s motor bike, as a result of which, he had sustained injuries as alleged?

ii) Whether the petitioner is entitled for compensation? If so, at what rate and from whom?

iii) What order or decree?

The claimant in order to prove his case examined himself as PW.1 and got marked the documents as Exs.P1 to P1 2. On behalf of respondent, one of the officer of the Insurance Company was examined as RW1 and got marked the documents as Exs.R1 to R6.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, sketch, IMV report, charge sheet, held that due to the negligence on the part of the rider of the motor bike as well as the driver of the car, accident occurred The claimant has contributed to an extent of 50% to the accident. Hence, 50% liability was fastened on the claimant and remaining 50% on the driver of the car.

With regard to the claim of compensation is concerned, in the accident, claimant has sustained the fracture of upper two central incisors with half tooth lost and blunt trauma upper back. The doctor opined that, the first injury is somewhat grievous and second injury is simple in nature. The petitioner produced the medical bills to an extent of Rs. 18,390/-. The tribunal taking into consideration the injury sustained and expenditure he had incurred, awarded a sum of Rs. 22,000/- towards pain and agony. Rs. 18,400/- is awarded towards medical expenses, Rs. 10,000/- is awarded towards the loss of amenities and enjoyment of life. In all, a sum of Rs. 50,400/- is awarded with interest at 6% per annum.

Since the claimant has contributed to the accident to an extent of 50%. the Tribunal held that the claimant is entitled to a sum of Rs. 25,200/- with 6% interest per annum. The claimant being not satisfied with the quantum of compensation, and fastening the liability on the claimant to an extent of 50% towards the contributory negligence filed this appeal.

The advocate appearing for the appellant contended that, a sum of Rs. 25,200/- awarded by the Tribunal is on the lower side. He claimed that he was working as a Junior Assistant-cum-Data entry Operator at Victoria Hospital, Bangalore. Because of the injury sustained he has to apply leave for 24 days without any pay. Hence, he is entitled for the monetary compensation for the period of 24 days.

Further, fastening the contributory negligence to an extent of 50% is contrary to law. The driver of the car suddenly took left turn from the extreme right without giving any signal. Hence, fastening the liability to an extent of 50% on the rider of the scooter is contrary to law and sought for setting aside the judgment and award by awarding compensation as prayed for.

On the other hand, Sri O. Mahesh, Advocate appearing for the second respondent argued in support of the judgment and award and contended that except the loss of one full tooth and one half tooth he has not sustained any other injuries. For the injury to the tooth he need not apply leave for 24 days Apart from that, the claimant himself is working in Victoria Hospital and applying leave for a period of 24 days does not arise. With regard to the contributory negligence is concerned, the driver took the car to left side after applying indicator, the rider of the motorbike came on the left side of the car in order to overtake, without looking at the indicator dashed against the car. Hence, the finding of the Tribunal with regard to contributory negligence is in accordance with law and sought for dismissal of the appeal.

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

The occurrence of accident on 17.7.2010, injury sustained by the claimant is not in dispute. The dispute with regard to the quantum of contributory negligence is concerned, the sketch, IMV report arid other evidence of the parties clearly disclosed that the driver of the car turned the car to the left side of the road from main road, at that time, the ride of the scooter in order to over take the car from left side of the road came rashly and dashed against the front side door of the car and the mudguard. The rider of the vehicle has to over take the car from the right side of the vehicle. In the instant case, the rider of the motor bike while overtaking the car on the left side of the road dashed against the front door of the car and the mudguard. In view of that, he fell down. The police have registered a case against both the rider of the motorbike as well as the car driver of the car.

On perusal of the sketch, Mahazar, IMV report clearly discloses that the rider of the motor bike also contributed to an extent of 50% to the accident. The rider of the motor bike should have taken sufficient care while riding his motor bike and while overtaking the car only on the right side instead of left side of the car. I find there is no infirmity and irregularity in the finding of the Tribunal with regard to the contributory negligence is concerned.

With regard to quantum of compensation is concerned, the claimant has not sustained any other injury, except loss of one full tooth and one half tooth. He has spent a sum of Rs. 18,390/- toward the medical expenses. The Tribunal awarded Rs. 22,000/- towards pain and agony, Rs. 18,400/- towards the medical expenses and Rs. 10,000/- towards loss of amenities and enjoyment of life. In all, a sum of Rs. 50,400/- is awarded. Gut of the said amount, 50% has been deducted towards the contributory negligence. The compensation awarded by the Tribunal is also in accordance with law. The appellant has not made out a case to interfere with the judgment and award passed by the Tribunal.

Accordingly, the appeal is dismissed.