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Judgment
B. Manohar, J. - This appeal and cross-objection are filed by the New India Assurance Company as well as the claimant, challenging the judgment and awarded dated 28th March, 2009 in MVC No. 650/2006 passed by the Motor Accident Claims Tribunal, Gulbarga (hereinafter referred to as `the Tribunal'' for short).
MFA No. 30976/2009 is filed by the Insurance Company being aggrieved by the judgment and award passed by the Tribunal whereas the claimant being not satisfied with the quantum of compensation in the very same judgment and award filed the cross-objections. Hence, both the appeal and cross-objections are clubbed together and disposed of by this common judgment.
The claimant filed a claim petition contending that on 15-4-2005, while the claimant along with his friends were proceeding in a Hero Honda motor bike bearing temporary registration No. MH-17/72-A, on Pune-Nagar road, near Chandan Nagar, Darga, a Tata Indica Car bearing registration No. MH-12/ CH-1567 being driven by its driver in a rash and negligent manner came and dashed against the motor bike. Due to that, the claimant and other two pillion riders sustained grievous injuries. The claimant was shifted to Rakshak Hospital, Pune and he had taken treatment there as inpatient for a period of 15 days. The claimant claimed that in the accident he has sustained head injury, fracture of tibia, fracture of fibula and fracture of mandible and other injuries to the body. Prior to the accident, the claimant was earning a sum of Rs. 4,500/- p.m. as a driver. In view of the injuries sustained, he cannot work as a driver and hence sought for compensation of Rs. 7,70,000/-.
In pursuance of the notice issued by the Tribunal, respondents 1 and 2 i.e. driver and owner of the offending vehicle remained ex parte. The 3rd respondent/insurance Company filed written statement denying the entire averments made in the claim petition and also rash and negligent driving of the Tata Indica Car. It was specifically contended that due to the rash and negligent driving of the motor bike by its rider, the accident had occurred in the middle of the road. Apart from that, three persons were travelling in the motor bike. It is also contended that the rider of the motor bike did not possess the valid and effective Driving License as on the date of accident. Further, the compensation claimed is exorbitant and sought for dismissal of the claim petition as against the 3rd respondent.
On the basis of the pleadings of the parties, the Tribunal framed necessary issues. The claimant, in order to prove his case examined himself as P.W. 1 and also examined the Doctor who issued the disability certificate as P.W.2 and got marked the documents as Ex. P1 to Ex. P13. On behalf of the respondent/insurance Company, one of the officers of the Company was examined as R.W. 1. The insurance policy of the offending Tata Indica car was marked as Ex. R. 1.
The Tribunal, after appreciating the oral and documentary evidence adduced by the parties, taking into consideration the copy of the complaint and charge-sheet against the driver of the Tata Indica Car held that the accident had occurred due to the rash and negligent driving of the offending car by its driver and the claimant is entitled for compensation. With regard to quantum of compensation is concerned, though the claimant claimed that prior to the accident he was working as a driver and earning a sum of Rs. 4,500/- p.m., no document has been produced to establish the same. In view of that, the Tribunal had taken the income of the claimant at Rs. 3,000/- p.m. With regard to disability is concerned, in the accident the claimant has sustained fracture of tibia, fracture of fibula and fracture of mandible. However, the injury to head is simple in nature. The claimant was inpatient for a period of 15 days. Though the Doctor assessed the disability to an extent of 18% to the whole body, the doctor who treated the claimant has not issued the disability certificate, hence the Tribunal had taken the disability to an extent of 9%, since the Doctor himself has admitted that the wound has already healed and bone has been united. Applying the multiplier of 17, considering the age of the claimant as 25 years, the Tribunal awarded a sum of Rs. 55,080/- towards loss of future earning; Rs. 43,230/- towards medical expenses, Rs. 1,04,500/- towards pain and suffering, Rs. 10,000/- towards attendant charges, nursing and extra nourishment charges and Rs. 10,000/- towards loss of amenities. In all, the Tribunal has awarded a sum of Rs. 2,22,810/- which was rounded off to Rs. 2,22,800/- with interest at 8% p.a. Since the vehicle was covered by insurance policy, the liability was fastened on the Insurance Company to compensate the claimant.
Being aggrieved by the judgment and award passed by the Tribunal fastening liability on the Insurance Company to compensate the claimant, the insurer has filed MFA No. 30976/2009 mainly contending that the Tribunal has not considered the contributory negligence on the part of rider of the motor bike. Three persons were travelling in the said motor bike, though its seating capacity is only two and the accident occurred in the middle of the road. Further contended that compensation awarded is on the higher side. It is contended that a sum of Rs. 30,000/- each to fracture of tibia and fibula and Rs. 40,000/- towards fracture of mandible is not in accordance with the assessment of compensation and sought for modifying the judgment and award by reducing the compensation.
On the other hand, Sri. V.N. Miskin, learned counsel appearing for the cross-objector/claimant contended that the compensation awarded by the Tribunal taking into consideration the income of the claimant as Rs. 3,000/- p.m. is on the lower side. The claimant is a driver by profession, earning more than Rs. 4,500/- p.m. and sought for enhancement of compensation.
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award and oral documentary evidence.
The records clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 15-4-2005 due to the rash and negligent driving of the Tata Indica Car. The specific contention taken by Smt. Preethi Patil, learned counsel appearing for the appellant/insurance Company is that as on the date of accident, three persons were travelling on the motor bike and the accident occurred in the middle of the road. One of the pillion riders who lodged the complaint has clearly admitted that three persons were travelling on the motor bike at about 1.00 a.m. While they were returning home after completion of Dr. B.R. Ambedkar Jayanthi, on Pune-Nagar Highway, by overtaking a truck which was going ahead, a Tata Indica Car came from opposite direction and dashed against the motor bike. He has further stated that since the driver of the truck was vigilant, he stopped the vehicle before it ran over them. The accident occurred in the middle of the road. Though the appellant-Insurance Company lead evidence in this regard, the tribunal has over-looked the said evidence only on the basis that the police have charge-sheeted the driver of the Tata indica Car and fastened the liability on the Insurance Company. The Tribunal ought to have fixed the contributory negligence to an extent of 50% on the rider of the motor bike.
On the other hand Sri. V.N. Miskin, argued in support of the judgment and award passed by the Tribunal with regard to rash and negligent driving of the Indica Car and contended that though three persons were travelling on the motor bike, that is not the cause for the accident and it is only due to the negligence on the part of the driver of the Tata Indica Car. The Police have also charge-sheeted the driver of the car. That itself shows that there is no contributory negligence on the part of the rider of the motor bike and sought for upholding the said finding.
The records clearly disclose that on the date of accident, after completion of Dr.Ambedkar Jayanthi, the claimant along with two other pillion riders were proceeding to their village on Pune-Nagar Highway. One of the pillion riders clearly admitted that while they were overtaking a Truck, a Tata Indica Car came from opposite direction and dashed against the motor bike. Since the driver of the Truck immediately applied the break, they survived. This itself shows that the accident occurred in the middle of the road, due to the contributory negligence on the part of the rider of the motor bike. The Insurance Company has lead evidence in this regard, but the Tribunal has not noticed the complaint lodged by one of the pillion riders. Filing of charge sheet against the driver of the Tata Indica Car cannot be a ground to hold that the driver of the Tata Indica Car drove the vehicle in a rash and negligent manner. The rider of motor bike also contributed for the accident to an extent of not less than 20%. Hence, taking into consideration the contributory negligence to an extent of 20% on the part of the rider of the motor bike, the compensation has to be assessed.
With regard to quantum of compensation is concerned, the claimant has sustained fracture of tibia, fracture of fibula and fracture of mandible. Though the claimant has sustained head injury, it is simple in nature. He was inpatient for a period of 15 days. The Doctor who has issued disability certificate has averred that fractured portion has been united. He has undergone surgery and nailing has been made to the right leg. Hence, the claimant is entitled to a sum of Rs.50,000/- towards pain and suffering; Rs.43,230/- towards medical expenses as per the medical bills produced by the claimant; Rs. 10,000/- towards attendant charges and nourishment, since the claimant was inpatient for a period of 15 days. In view of the fracture of tibia and fibula, the claimant is entitled to a sum of Rs. 20,000/- towards loss of amenities in life. Taking the income of the claimant at Rs.4,000/- p.m., considering the disability to an extent of 9% and applying the multiplier 18, since the claimant was aged about 24 years, the claimant is entitled to compensation of Rs.77,760/- towards loss of future earning capacity. In all, the claimant is entitled to compensation of Rs.2,00,990/-. Since the accident has occurred in the middle of the road, it has to be held that the claimant is also negligent while riding the motor bike. Hence, the contributory negligence has to be taken at 20% and deducted out of the compensation amount. The claimant is entitled to compensation of Rs. 1,60,792/- as against Rs.2,22,800/- awarded by the Tribunal.
Accordingly, I pass the following:
MFA No. 30796/2009 is allowed in part. The judgment and award dated 28-03-2009 made in MVC No.650/2006 passed by the Motor Accident Claims Tribunal, Gulbarga is modified. The claimant is entitled to compensation of Rs. 1,60,792/- as against Rs 2,22,800/- with interest at 6% pa.
MFA Crob. No. 1021/2010 filed by the Claimant/cross-objector is dismissed.
@DOUBTThe amount in deposit in MFA No. 30796/2009 is directed to be transferred to MACT, Gulbarga.