Karnataka High Court
Usman Sheriff @ Thabroz S/O Babajan vs S Muniyappa S/O Seethappa on 30 July, 2013
Bench: N.K.Patil, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY, 2013,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.MANOHAR
M.F.A.NO. 6227 OF 2008 (MV)
Between:
Usman Sheriff @ Thabroz
S/o. Babajan,
Aged about 29 years,
Darga Mohalla,
Kolar.
... Appellant
(By Shri. B.N.Muralidhar, Advocate)
And:
1. S. Muniyappa,
S/o. Seethappa,
Seegehalli Village,
Kannamangala Post,
Via Kadugodi,
Bangalore-67.
2. The National Insurance Co., Ltd.,
Branch Office, Near Canara Bank,
Marthahally,
Bangalore District.
Rep. by General Manager.
... Respondents
(By Shri. A.N. Krishna Swamy, Advocate for R2;
R1 served)
******
2
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated:22/01/2008 passed in MVC
No.1267/2002 on the file of the Additional CJ., & Additional
Motor Accident Claims Tribunal, Kolar, 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 claimant is directed against the common impugned judgment and award dated 22nd January 2008, passed in MVC No.1267/2002, by the Additional CJ., & Additional Motor Accident Claims Tribunal, Kolar, (for short, 'Tribunal' ) for enhancement of compensation on the ground that, the compensation of `1,53,000/-, awarded in his favour, fixing the contributory negligence at 30% on the appellant, as against his claim for `25,00,000/-, is inadequate.
2. The appellant claims to be aged about 22 years and a Mechanic by profession, earning a sum of `6,000/- per month and `4,000/- from other business, in all a sum of `10,000/- per month. He was hale and 3 healthy prior to the date of accident. That at about 10:45 P.M., on 13-03-2001, when the appellant was travelling in a Scooter, near Narasapur by-pass, a Tractor-Trailer bearing Registration No.KA-03/T-570 & KA-03/T-571, being driven by its driver, came at a high speed, in a rash and negligent manner and dashed against the Scooter. Due to the impact, the appellant sustained grievous injuries. Immediately, he was shifted to the HOSMAT Hospital and he took treatment by spending huge sums.
3. It is the case of the appellant that he has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated adequately.
4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of `25.00 lakhs against the respondents. The said claim petition 4 had come up for consideration before the Tribunal on 22nd January, 2008. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `1,53,000/- with interest at 6% per annum from the date of petition till the date of deposit and fixed 30% contributory negligence on the part of the appellant. Being dissatisfied with the quantum of compensation awarded by the Tribunal and also the contributory negligence fixed at 30%, the appellant is in appeal before this Court, seeking enhancement of compensation and also to set aside the contributory negligence.
5. We have gone through the grounds urged by the appellant in the memorandum of appeal and heard learned counsel for second respondent/Insurance Company for quite some time.
6. It is the case of the appellant that on account of the road traffic accident, he sustained fracture of 2nd 5 metacarpal bone of left hand, fracture of minimal displaced, left forearm both bones fractured and fracture of pubic rami, fracture of tibia candyle with proximal third shaft, fracture of communited, head injury with cerebral contusion and hypolimic shock and was in-patient from 14-03-2001 to 29-03-2001 and from 21-06-2001 to 25-06-2001 and therefore, he has to be awarded reasonable compensation.
7. It is further case of the appellant that the Tribunal grossly erred in fixing 30% contributory negligence on the part of the appellant and the same is liable to be set aside. He further submitted that the compensation awarded by Tribunal towards loss of amenities, discomfort and unhappiness, loss of income during treatment period and conveyance, nourishing food and attendant charges is on the lower side and hence, liable to be enhanced, by modifying the impugned judgment and award passed by Tribunal.
8. As against this, learned counsel appearing for second respondent Insurer inter alia contended and 6 submitted that the impugned judgment and award passed by Tribunal is after due appreciation of the oral and documentary evidence available on file and that the contributory negligence at 30% is fixed on the appellant on the basis that three persons were travelling in the Scooter and thus the appellant also contributed to the occurrence of accident and hence, interference in the same is not called for.
9. After hearing learned counsel for the appellant and after perusal of the impugned judgment and award passed by Tribunal including the original records placed before us, we are of the view that, the occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 22 years and working as a Mechanic. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of `40,000/- towards injury, pain and sufferings, `79,500/- towards medical expenses, as per the medical bills and prescriptions and 7 `10,000/- towards future medical expenses. Hence, interference in the same is uncalled for.
10. However, so far as the compensation awarded under loss of amenities, loss of income during treatment period and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries such as lacerated wound over upper 1/3rd aspect of right leg, measuring 2 cm x 1 cm, contusion over left hand middle 1/3rd and head injury. He also sustained cerebral contention, fracture of right femur, right tibia, fracture of left femur right tibia, fracture of left femur and fracture of left metacarpal bone. The Doctor has issued the Disability Certificate after radiological and clinical examination of appellant and assessed the disability at 10% towards whole body. But, the compensation awarded by Tribunal towards loss of amenities, discomfort and unhappiness on 8 account of disability is on the lower side. The appellant being aged about 55 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from work for a period of not less than three months. Further, having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at `4,000/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite a long period in two Hospitals, i.e. Hosmat Hospital and SNR Hospital. During this period, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Therefore, having regard to the age, avocation, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of `10,000/- towards conveyance, nourishing food and attendant charges as against `2,700/-; `12,000/- towards loss of income during 9 treatment period, at the rate of `4,000/- per month for a period of three months as against `1,200/- and `50,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against `15,000/- awarded by Tribunal.
11. Regarding contributory negligence fixed at 30% on the appellant is concerned, it can be seen that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has recorded a specific finding of fact, holding that the appellant also contributed to the occurrence of accident, in as much as three persons were travelling in the offending Scooter and thus fixed 30% negligence on the part of the appellant. The said reasoning given by Tribunal is just and proper and interference in the same is not called for and contributory negligence fixed at 30% is hereby confirmed.
12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned common judgment 10 and award dated 22nd January 2008, passed in MVC No.1267/2002, by the Additional CJ., & Additional Motor Accident Claims Tribunal, Kolar, is hereby modified, awarding a sum of `2,01,500/- as against `1,53,000/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. The break-up is as follows:
Towards Pain and sufferings ` 40,000/-
Towards Loss of amenities & ` 50,000/-
enjoyment in life on account of
disability
Towards Medical Expenses ` 79,500/-
Towards conveyance, nourishing ` 10,000/-
food and attendant charges
Towards Loss of earning during ` 12,000/-
treatment period
Towards loss of future earnings ` 10,000/-
Total `2,01,500/-
As we have already upheld contributory negligence fixed by Tribunal at 30%, the appellant is entitled to only 70% of `2,01,500/-. Accordingly, 70% of the said sum works out to `1,41,050/-. Thus, the appellant is entitled to total compensation of `1,41,050/- as against 11 `1,07,100/-. There would be enhancement of compensation by a sum of `33,950/-.
The second respondent/Insurance Company is directed to deposit the enhanced compensation of `33,950/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.
On such deposit by the Insurance Company, the entire sum shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*