Shri Rashid vs The General Manager, NWKRTC <BR> The General Manager, NWKRTC Vs Shri Rashid

B. Manohar, J.—These two appeals are directed against the judgment and award dated 18-03-2010 made in MVC No. 913/2009 passed by the III Addl MACT, Belgaum. M.F.A. No. 23214/2010 is filed by the claimant being not satisfied with the quantum of compensation awarded by the Tribunal and also fastening 50% of contributory negligence on the part of the claimant. M.F.A. No. 23686/2010 is filed by the NWKRTC being aggrieved by the very same judgment and award challenging the liability fixed on the respondent- Corporation to pay compensation.

The claimant filed the claim petition before the M.A.C.T. Belgaum, inter alia contending that on 09.03.2009 he was proceeding on his motorcycle bearing reg. No. KA-17/Y-6405 towards Hukkeri along with the pillion rider. When they reached Bastawad cross, a KSRTC Bus bearing no. KA-23/F-414 came from the opposite direction in a great speed driven rashly and negligently by its driver and dashed against the motorcycle. Due to the said impact the claimant as well as the pillion rider sustained injuries. The pillion rider died in the hospital while the claimant sustained grievous injuries and his right leg was amputated in the accident. He filed a claim petition seeking compensation of Rs. 10,00,000/- contending that he has spent more than Rs. 1,60,000/- towards medical expenditure.

The respondent NWKRTC entered appearance and filed objections to the claim petition contending that due to the rash and negligent riding of the motorcycle the accident had occurred. Without noticing the bus, rider of the motorcycle entered the main road from the cross road. In view of the same, the accident occurred. The claimant himself was responsible for the cause of accident and hence the Corporation is not liable to pay compensation. Further, the compensation claimed is exorbitant and therefore sought for dismissal of the claim petition.

The claimant in order to prove his case examined himself as P.W.1 and got marked documents as per Ex. P.1 to Ex. P.34. On behalf of the respondents, driver of the bus was examined as R.W.1.

The Tribunal on appreciating the oral and documentary evidence and taking into consideration copy of the F.I.R, M.V.I. Report, panchanama, copy of the sketch and the charge sheet, held that due to the rash and negligent riding of the motorcycle as well as the NWKRTC bus, the accident has occurred. The Police had registered a case against the rider of the motorcycle and also the driver of the bus since both have contributed for the cause of accident. Further, it is the duty of the motorcyclist to observe the vehicle movement while entering the main road from the cross road, but he has not done so. The driver of the bus also was negligent and he was not diligent while driving the bus. Accordingly, the Tribunal held rider of the motorcycle and the driver of the bus are equally responsible for the cause of accident.

With regard to the quantum of compensation is concerned, the wound certificate Ex. P.8 clearly discloses that the claimant had sustained injury to the right leg which was subsequently amputated. Further, he sustained fracture of both the bones of right arm and suffered permanent disability. The Doctor who has treated him, in his evidence has deposed that the claimant has suffered permanent disability to an extent of 70%. But the Tribunal assessed the permanent disability to an extent of 30%. Though the claimant claims that he is an agriculturist and earning Rs. 8,000/- per month, he has not produced any documents in this regard. The Tribunal taking into consideration income of the claimant as Rs. 3,000/- per month awarded compensation of Rs. 4,30,200/-, out of which, deducted 50% towards contributory negligence and directed the respondent to pay to the claimant a sum of Rs. 2,15,100/-. The claimant being dissatisfied with the quantum of compensation and fixing liability to an extent of 50% on the rider of the motorcycle filed the appeal and the Corporation being aggrieved by the very same judgment and award, fixing the liability to an extent of 50% on the respondent-Corporation and also awarding compensation of Rs. 2,15,100/- have filed these two appeals.

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

The records reveal that the appellant in M.F A. No. 23214/2010 sustained injury in the road traffic accident occurred on 09.03.2009 due to the rash and negligent riding of the motorcycle and also by the driver of the bus. The Tribunal taking into consideration the sketch, panchanama and the M.V.I. Report held that the rider of the motorcycle and the driver of the bus have equally contributed for the accident. The Police had registered a case against both of them. Hence, I find that there is no infirmity or irregularity in the said finding. The contributory negligence fixed both the driver of the bus as well as on the rider of the motor cycle is confirmed.

With regard to the quantum of compensation is concerned, in the accident the claimant had sustained crush injuries to his right leg and fracture of both bones of right forearm and other injuries. He was inpatient for 48 days. His right leg was amputated below the knee. He has spent huge money for treatment and undergone lot of sufferings. The Doctor who has issued the disability certificate has stated as under:

ON CLINICAL EXAMINATION

Patient walks limping on the right antalgic gait. He is wearing a artificial leg to the right amputated part of the leg. There are big operated scars on the right forearm. There is Amputation of the upper 1/3rd of the right leg. The stump is measuring about 20 cm. in length. Tenderness elicited on the middle 1/3rd of the right radius and ulna bones and in the right elbow point. The plate and screws are in situ in the right radius and ulna bones. There is malunion of the above said fractures bones.

BELOW KNEE AMPUTATION UPPER 1/3RD OF THE RIGHT THIGH:

The permanent physical disability is 70% (Seventy percent) due to below knee amputation upper 1/3rd of the right leg as per WHO Book.

MOVEMENTS OF THE RIGHT ELBOW JOINT:

There is a limitation of motion in the right elbow joint. Flexion 0 degree to 70 degree further flexion. The permanent physical disability is 20% (Twenty percent) in the right elbow joint due to fracture middle 1/3rd of the right radius and ulna bones as per ALMOCOI Book.

OBSERVED PERMANENT DISABILITY

Wit the above said disability now he cannot do what work he was doing before accident.

CONCLUSION:

I am of the opinion that considering the all above clinical signs and radiological findings, the patient has got the total permanent physical disability is at extent of 20% in respect of right upper limb and is 70% in respect of right lower limb as per ALMCOI and WHO books.

However, the Tribunal has taken the disability only to an extent of 30% though there is amputation of right leg below the knee. The disability of 30% taken by the Tribunal is on the lower side and the Tribunal ought to have taken the permanent disability at 50% to the whole body.

With regard to the income of the claimant is concerned, though the claimant claims that he is an agriculturist and getting an income of Rs. 8,000/- per month, he has not produced any documents. Hence the Tribunal has assessed his income at Rs. 3,000/- per month. The accident is of the year 2009, even the daily wager would earn Rs. 3,500/- per month. The claimant cannot be treated as a daily wager and hence his income is to be reassessed at Rs. 4,500/- per month. Taking into consideration the nature of injuries he had sustained, 50% disability has to be taken. Appropriate multiplier applicable to the case on hand is 16. Accordingly, the claimant is entitled for Rs. 4,32,000/- (Rs. 4,500/- x 12 x 16/2) towards future loss of income as against Rs. 1,83,600/- awarded by the Tribunal.

The claimant had undergone amputation of right leg and also fracture of both the bones of right forearm, which will affect his working capacity. The amount of compensation awarded towards pain and suffering and loss of amenities is on the lower side. Hence, I award a sum of Rs. 1,00,000/- as against Rs. 60,000/- and Rs. 1,00,000/- as against Rs. 80,000/- respectively towards the aforesaid heads. Further, no compensation was awarded towards artificial limb. Hence, a sum of Rs. 1,00,000/- is awarded towards artificial limb. The amount of compensation awarded by the Tribunal towards medical expenses, nourishment and loss of income during laid up period, are just and proper and do not require enhancement. The claimant, in all, is entitled for Rs. 4,19,300/- (Rs. 8,38,600/- less 50% towards contributory negligence). Accordingly, I pass the following order.

ORDER

M.F.A. No. 23686/2010 filed by the Corporation is dismissed.

M.F.A. No. 23214/2010 filed by the claimant is allowed in part. The claimant is entitled for compensation of Rs. 4,19,300/- as against Rs. 2,15,100/- awarded by the Tribunal with interest at 9% p.a. from the date of petition till realization.

Out of the total compensation, 50% with proportionate interest is ordered to be invested in the fixed deposit in any nationalized bank in the name of the claimant for a period of five years and the remaining amount be released in his favour. He is entitled to withdraw the interest periodically.

The statutory deposit made in M.F.A. No. 23686/2010 is ordered to be transmitted to the Tribunal for disbursement.