Karnataka High Court
Sri. Ashok Ramchandra Ganachari vs Shri. Rama Pandith Bhosale, on 24 September, 2012
Author: N.K. Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 24TH DAY OF SEPTEMBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.V.PINTO
M.F.A.No. 23912/2011 (MV)
Between:
Sri. Ashok Ramchandra Ganachari,
Age: 26 Years, Occ: Driver (Now-Nil),
Since mentally disabled rep. by
His next friend wife Smt. Rohini
W/O Ashok Ganachari,
Age: 23 Years, Occ: Household work,
R/O Kulagod, Tq. Gokak,
Dist. Belgaum.
... Appellant
(By Shri. Mutturaj D Patil & Shri. B J Gangai, Advocates.)
And
1. Shri. Rama Pandith Bhosale,
Age: 36 Years, Occ: Business,
R/O Kulagod, Tq. Gokak,
Dist. Belgaum.
2. The Divisional Manager,
National Insurance Co. Ltd.,
Divisional Office, Ramdev Galli,
2
Belgaum.
... Respondents
(By Shri. A M Ghali, Advocate for R1,
Shri. Suresh S.Gundi, Advocate for R2.)
This MFA is filed U/Sec.173(1) of M.V.Act 1988,
against the Judgment and Award Dated:06.07.2011, passed
in M.V.C. No.2245/2010 on the file of the Presiding Officer,
Fast Track Court-IV, Belgaum at Belgaum, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
This MFA coming on for Hearing this day, N.K.Patil J.,
delivered the following
:JUDGMENT:
This appeal by the appellant-claimant is directed against the impugned judgment and award Dated:06.07.2011, passed in M.V.C. No.2245/2010 on the file of the Presiding Officer, Fast Track Court-IV, Belgaum at Belgaum, (for short 'Tribunal'), for enhancement of compensation.
2. By its judgment and award, the Tribunal has awarded a sum of `5,63,350/- after deducting contributory negligence on the part of the injured at 5%, under different heads with interest at 9% p.a., from the date of petition till its deposit as against the claim made by the claimant for a 3 sum of `22/- lakhs on account of the injuries sustained by him in the road traffic accident.
3. In brief, the facts of the case are:
The appellant claims to be aged about 25 years. He was hale and healthy prior to the accident. He was a driver of heavy vehicle by profession having valid driving licence issued by the jurisdictional RTO. He met with an accident that occurred on 3.3.2010 at about 7.15 a.m. when he along with others was proceeding in Tata 407 Maxicab vehicle bearing No.KA.49.1240 from Kulagod to Yamanur of Navalgund taluka to Rajbhasha Temple and they were standing near the door. The driver of the said vehicle drove the same in a rash and negligent manner with high speed and in a zig zag manner and when they came near bridge on Katkol-K Chandargi road, he suddenly took turn of the vehicle in a curve of the road, as a result, claimant fell down and sustained grievous injuries, viz., skull bone + brain+ Sulci+ tentorium; Cerebral oedema + fracture of cortical 4 3 CM temporal bone on left side and subgalear hematoma as per Ex.P6-wound certificate. Immediately, he was taken to Primary Health Centre, Katkol and took first aid treatment and then shifted to Nimra Hospital, Gokak, where he took treatment as inpatient for about 15 days and then shifted to KLE Hospital, Belgaum where he took treatment as inpatient and thereafter, bed rest and follow up treatment for six months.
4. It is the further case of the appellant that he spent huge amount towards medical expenses, conveyance and other incidental charges and on account of the injuries sustained by him as referred above, he has suffered permanent mental and physical disability. The Doctor has assessed the mental disability at 62% to 65% as per Ex.P23-Disability certificate and he has surrendered his DL to the RTO as he is unable to drive the vehicle as per Ex.P22. Therefore, appellant has filed a claim petition before the Tribunal under 5 Section 166 of M.V. Act, through his next friend- wife, claiming compensation against the respondents.
5. In order to prove his case, the wife of the appellant has been examined as PW1 since he is mentally disabled, and got marked documents. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part, awarding a sum `5,63,350/- under different heads after deducting 5% towards contributory negligence on the part of appellant with interest at 9% p.a., from the date of petition till its deposit.
6. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, appellant has presented this appeal through his next friend-wife, seeking enhancement of compensation .
7. We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.
6
8. Learned counsel for the appellant, at the outset submitted that, the Tribunal has erred in assessing the income of the appellant at `3,500/- per month and it is liable to be modified on the ground that, appellant was a driver of the heavy vehicle and getting the income of `9,000/- per month. It is further submitted by the learned counsel for the appellant that, due to severe injuries sustained by the appellant in the accident, he is not in a position to continue his profession as driver and therefore, the Tribunal ought to have assessed the functional disability at 100%, as the Doctor has assessed the disability at 62% to 65% to the whole body. It is further submitted by the learned counsel for the appellant that, the Tribunal has erred in not awarding reasonable compensation towards loss of income during the treatment period, towards loss of amenities, towards loss of future income and therefore, it needs to be enhanced. He further submitted that, the Tribunal has erred in fixing contributory negligence at 7 5% on the part of the appellant and the same is liable to be set aside. Therefore, he submitted that, impugned judgment and award passed by the Tribunal is liable to be modified.
9. Per contra, learned counsel for Insurer, inter- alia, contended and submitted that, the Tribunal has erred in fixing the contributory negligence at 5% and it is liable to be enhanced, on the ground that, appellant himself has invited trouble by standing on the foot board of the maxicab and he fell down due to his negligence only. Further, he submitted that, the Tribunal ought to have fixed contributory negligence at 50% on the part of the appellant, in view of the law laid down by the Division Bench of this Court in the case of Mayamma Vs. Sri.Siddaiah and another reported in ILR 2003 Karnataka 1179 and in the case of Smt. Shivleela and others Vs. Karnataka State Road Transport Corporation by Managing Director, Bangalore reported in ILR 2003 Karnataka 3602. 8 Further, he submitted that the Tribunal is justified in assessing the income of the appellant at `3,500/- per month and the compensation awarded by the Tribunal under other heads is on higher side and is liable to be reduced by modifying the impugned judgment and award passed by the Tribunal.
10. After hearing the learned counsel for the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the points that arises for our consideration are:
(i) Whether the Contributory negligence fixed by the Tribunal at 5% on the part of the appellant and 95% on the part of the driver of the maxi cab is just and reasonable?
(ii) Whether the compensation awarded by the Tribunal is just and reasonable?
Re.Point No.1:
11. The occurrence of the accident and the resultant injuries sustained by the appellant are not in dispute. The Tribunal, after due appreciation of 9 contents of Exs.P1 to P35 coupled with the oral evidence of PWs 2 and 3 has observed that appellant is standing near the door of the vehicle though seat is available in the vehicle. It is the duty of the passengers to take seats while the vehicle ply on the road and it is also the bounden duty of the driver to verify as to whether all the passengers were in their seats while driving the vehicle. The evidence of PWs 2 and 3 clearly shows that the driver and all the three petitioners were negligent. One more aspect that has to be taken into consideration is, now a days, in view of the scientific development, the driver of the vehicle has the access to see from rare view mirror as to where the vehicle was running and as to how it is running. If that is the case, the driver and appellant and other persons might have seen the spot and taken their seats. But on this aspect, no evidence has been adduced no independent witnesses are examined. Therefore, taking into consideration the averments in the spot mahazar, panchanama and IMV 10 report, we are of the considered view that, majority of the negligence is on the part of the driver of the offending vehicle and there is also some negligence on the part of the appellant who was standing in the foot board. Taking all these factors into consideration, we refix the contributory negligence on the part of the driver of the maxi cab at 80% and on the part of the appellant at 20% by modifying the contributory negligence fixed by the Tribunal.
12. So far as the reliance placed by the learned counsel for Insurer as referred above are concerned, there is no quarrel or dispute with regard to the law laid down in the aforesaid decisions, but they are not applicable to the facts and circumstances of the case. In those cases persons have sustained injuries while sitting on the top of the bus and in the instant case, the appellant along with other two persons was standing on the foot board and therefore, the same cannot be made applicable to the instant case. 11
Re.Point No.2:
13. The Tribunal has assessed the income of the appellant at `3,500/- per month which is on lower side and it needs to be enhanced. Admittedly, the accident has occurred on 3.3.2010, appellant was aged about 25 years, he was driver of the heavy vehicle and having the valid licence and due to the injuries suffered, he is not in a position to continue his profession as driver of heavy vehicle. It is a fact that, appellant has surrendered the DL to jurisdictional RTO as per Ex.P22. Having regard to his age, occupation and the year of accident, we can safely reassess the income of the appellant at `6,000/- per month instead of `3,500/- as assessed by the Tribunal. It is significant to note that, the Doctor has assessed the disability at 62% to 65% to the whole body and he might have surrendered his licence as he is in not in a position to drive the vehicle but he can do any other job which is suitable for his health conditions. Therefore, we reassess the permanent disability at 50% to the whole body. We accept the Multiplier of '18' adopted by the Tribunal. Further, we presume that, appellant might 12 have taken bed rest and follow-up treatment atleast for six months, during the said period, he might have incurred financial loss as he could not have attended his work regularly and on account of the disability suffered by him, he has to suffer discomforts and unhappiness through out his future life. Taking all these factors into consideration, we deem it fit to award `36,000/- towards loss of income during treatment period at the rate of `6,000/- per month for six months, `50,000/- towards loss of amenities due to disability, `6,48,000/- towards loss of future earnings (`6,000/- x 12 x 18 x 50/100) and accordingly, it is awarded.
14. However, a sum of `40,000/- awarded by the Tribunal towards injury pain and sufferings, `1,76,000/- awarded towards medical expenses and `20,000/- towards conveyance, nourishing food and attendant charges, which is just and proper and therefore, interference by this Court is not called for. In all, the claimant is entitled to the total compensation of `9,70,000/- instead of `5,90,000 awarded by the Tribunal and the break up is as follows: 13
Towards pain and sufferings ` 40,000/-
Towards medical expenses ` 1,76,000/-
Towards conveyance, nourishing food ` 20,000/-
and attendant charges
Towards loss of amenities of life, ` 50,000/-
Towards loss of income during treatment ` 36,000/-
period
Towards loss of future earnings ` 6,48,000/-
Total ` 9,70,000/-
.
15. For the foregoing reasons, the appeal filed by the appellant is allowed in part and the impugned judgment and award dated 6th July 2011 passed by the Tribunal in MVC No.2245/2010 stands modified, awarding the compensation of `9,70,000/- instead of `5,93,000/- awarded by the Tribunal, fixing the contributory negligence at 80% on the part of the driver of the Maxi cab and at 20% on the part of the appellant. Out of `9,70,000/- if 20% (`1,94,000/-) is deducted towards contributory negligence on the part of the appellant, balance comes to `7,76,000/-. There would be an enhancement of `2,12,650/- with interest at 6% p.a., from the date of the petition till its realization, in addition to the compensation awarded by the Tribunal.
The Insurer is directed to deposit the enhanced compensation of `2,12,650/- with interest, within three 14 weeks from the date of receipt of a copy of this judgment and award.
Immediately on deposit by the Insurer, out of the enhanced compensation of `2,12,650/-, a sum of `2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant for a period of ten years, renewable by another ten years, with liberty reserved to him to withdraw the interest accrued on it periodically.
The remaining `12,650/- with proportionate interest shall be released in favour of the appellant through his next friend-wife immediately.
Draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE tsn*