Karnataka High Court
The New India Assurance Co Ltd vs Sri Yousurf Basha on 28 October, 2013
Equivalent citations: 2014 AAC 664 (KAR), 2014 (1) AIR KANT HCR 426, (2014) 1 KANT LJ 217, (2015) 2 ACJ 1216, (2014) 3 TAC 216, (2014) 1 ACC 530
Bench: N.K.Patil, R.B Budihal
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF OCTOBER, 2013
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
M.F.A.NO. 685 OF 2009 (MV)
C/W. M.F.A.NO. 686 OF 2009 (MV)
C/W. M.F.A.NO. 1090 OF 2009 (MV)
AND MISC. CVL. 2621 OF 2009 &
C/W. M.F.A.NO. 1271 OF 2010 (MV)
M.F.A.NO. 685 OF 2009 (MV)
Between:
The New India Assurance Co., Ltd.,
Rep. by Divisional Manager,
4th Floor, Tower Block,
Unity Building, J.C.Road,
Bangalore-560 002.
Representing New India Assurance Co.,
Kadapa.
... Appellant
(By Shri. R.Jai Prakash, Advocate)
And:
1. Sri. Yousurf Basha,
S/o. Shaiklal Ahamadh,
Major,
Patha Rayachuti,
Zandhaman Street,
Rayachooty,
2
Kadapa.
2. Smt. Alaveera Krishnappa,
D/o. Smt. Sireen Krishnappa,
Aged 12 years, minor,
Rep. by grand mother
K.V.Shakuntala,
W/o. Late Krishnappa,
Aged 48 years,
D.No.87, Ground Floor,
Sanjana Nilaya, 8th Main,
5th Cross, Sree Krishna Publication,
Brindavannagar,
Mathikere, Bangalore.
... Respondents
(By Smt. S.Susheela, Advocate for R2;
Notice to R1 dispensed with v/o. dated 08/04/2011)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated:18/10/2008 passed in MVC No.
75/2004 on the file of the Civil Judge(Sr.Dn) & JMFC, Motor
Accident Claims Tribunal, Chinthamani, awarding a
compensation of `9,20,000/- with interest at 6% p.a. from
the date of petition till realization.
M.F.A.NO. 686 OF 2009 (MV)
Between:
New India Assurance Co., Ltd.,
Rep. by Divisional Manager,
4th Floor, Tower Block,
Unity Building, J.C.Road,
Bangalore-560 002.
Representing New India Assurance Co.,
Cudduph-516 001.
... Appellant
(By Shri. R.Jai Prakash, Advocate)
3
And:
1. Sri. Yousurf Basha,
S/o. Shaik lal Ahmadh,
Major,
Patha Rayachuti,
Zadamam Street,
Rayachooty,
Kadapa District, A.P.
2. Sri. Rohith @ Rohith Mankotia,
S/o. Harpal Singh, Major,
Development Officer,
Creative Head & Business
Media Masti Magic Magazine,
Sree Krishna Publication,
Nanjundappa Building,
St. Thomas Town Park,
4th Cross, Nehru Road,
Muniswamappa Layout,
Kammanahalli, Bangalore.
... Respondents
(R1 served;
Notice to R2 held sufficient v/o. dated 02/04/2013)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated:18/10/2008 passed in MVC No.
84/2004 on the file of the Civil Judge(Sr.Dn) & JMFC, Motor
Accident Claims Tribunal, Chinthamani, awarding a
compensation of `4,50,000/- with interest at 6% p.a. from
the date of petition till realization.
M.F.A.NO. 1090 OF 2009 (MV)
AND MISC. CVL. 2621 OF 2009
Between:
Sri. Rohith @ Rohith Mankotia,
S/o. Harpal Singh,
4
Aged about 29 years,
R/o. Nanjundappa Building,
St. Thomas Town,
4th Cross, Nehru Road,
Muniswamappa Layout,
Kammanahalli, Bangalore-43.
... Appellant
(Common)
(By Shri. A.M.Vijay, for Shri. A.Mohan Ram, Advocate)
And:
1. Yousuf Basha,
S/o. Shaik Lal Ahmed,
Aged about 45 years,
Patha Rayachooty,
Zandamam Street,
Rayachoty-516 269,
Cuddapah District,
Andhra Pradesh,
(Owner of Lorry bearing
No.A.P.4-T-5164)
2. The New India Insurance Company
Limited (By its Divisional Manager),
No.19/01, Madras Road,
Cuddapah-516 001,
Andhra Pradesh.
(policy NO.511201/31/03/04683)
... Respondents
(Common)
(By Shri. R.Jai Prakash, Advocate for R2;
R1 served)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated:18/10/2008 passed in MVC No.
84/2004 on the file of the Civil Judge(Sr.Dn) & JMFC, Motor
Accident Claims Tribunal, Chinthamani, partly allowing the
claim petition for compensation and seeking enhancement of
compensation.
5
This Misc. Cvl. is filed under Order XLI Rule 27 R/w.
Section 151 of CPC, 1908, by the appellant, praying to
permit him to produce additional documentary evidence i.e.,
the original Bachelor of Engineering Decree Certificate
issued to him by the Bangalore University on 18/08/2006,
in the interest of justice and equity.
M.F.A.NO. 1271 OF 2010 (MV)
Between:
Alveera Krishnappa,
D/o. Smt. Sireen Krishnappa,
Aged about 11 years,
Rep. by her guardian,
Grand mother, K.V.Shakunthala,
W/o. Late Krishnappa,
Aged about 54 years,
D.No.87, Ground Floor,
Sanjana Nilaya, 8th Main, 5th Cross,
Srikrishna Publications,
Brindhavan Nagar,
Mathikere, Bangalore.
... Appellant
(By Smt. S.Susheela, Advocate)
And:
1. Yousurf Basha,
S/o. Shaik lal Ahamadh,
Major,
Patha Rayachooty,
Zandhamam Street,
Rayachooty,
Cuddph District,
Andhra Pradesh,
(Owner of Lorry bearing
No.A.P.4-T-5164)
6
2. The New India Insurance Co., Ltd.,
Rep. by its Branch Manager,
No.19/01, Madras Road,
Cuddapah-516 001,
Andhra Pradesh.
... Respondents
(By Shri. R.Jai Prakash, Advocate for R2;
R1 served)
****
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated:18/10/2008 passed in MVC No.
75/2004 on the file of the Civil Judge(Sr.Dn) & JMFC, Motor
Accident Claims Tribunal, Chinthamani, partly allowing the
claim petition for compensation and seeking enhancement of
compensation.
These MFAs along with Misc. Cvl. coming on for
Admission, this day, N.K. PATIL. J., delivered the following:
JUDGMENT
M.F.A.Nos.685/2009 and M.F.A.No.686/2009 are by the New India Assurance Company Limited (hereinafter referred to as 'Insurer' for short); M.F.A.No.1090/2009 is by the injured claimant; and M.F.A.No.1271/2010 is by the minor claimant, aged about 7 years, represented by her grandmother.
2. The Insurer has filed the two appeals against the common judgment and award dated 18th October 2008, passed in MVC Nos.75/2004 & 84/2004, by the 7 Civil Judge(Sr.Dn) & JMFC., Motor Accident Claims Tribunal, Chinthamani, (for short, 'Tribunal'), seeking to modify the contributory negligence fixed on the Insurer and the rider of the Motor Cycle. The injured claimant in M.V.C.No.84/2004 has filed the appeal, seeking enhancement of compensation, against the very same judgment and award, on the ground that the monthly income assessed by Tribunal is on the lower side and to modify the contributory negligence fixed in the ratio of 50:50; and the minor claimant in M.V.C.No.75/2004, represented by her grandmother has filed the appeal, against the very same judgment and award, seeking enhancement of compensation and also to modify the contributory negligence fixed by the Tribunal.
3. The facts of the case as stated in the claim petition are that, at about 9:30 P.M., on the ill-fated day, i.e. on 01-09-2004, when the deceased Smt. Sireen Krishnappa, the mother of the minor claimant in M.F.A.No.1271/2010 (in M.V.C.No.75/2004) was travelling in a Motor Cycle bearing Registration No.KA- 8 04/T-5064, as a pillion rider and the said Motor Cycle was ridden by the injured claimant in M.F.A.No.1090/2009 (in M.V.C.No.84/2004), in between T. Hosahalli-Talagavara Road, at that time, they both met with an accident on account of rash and negligent driving by the driver of the Lorry bearing Registration No.AP-04/T-5164, as he suddenly stopped the Lorry by applying brake. Due to the impact, the deceased who was riding pillion and the injured claimant, who was riding the Motor Cycle, both sustained grievous injuries all over the body. But, unfortunately, the pillion rider died while she was being shifted to the Hospital.
4. It is the case of the injured claimant in M.F.A.No.1090/2009 that he was aged about 24 years, working as Creative Head and Business Development Officer at 'Media Masti Magic' Magazine, drawing salary of `15,000/- per month. It is his further case that he has sustained lacerated wound over right side of neck, lacerated wound over upper 1/3rd of thigh, fracture 9 mandible and other injuries as per Ex.P5, Wound Certificate issued by the Hosmat Hospital, Bangalore. It is also his case that he took treatment for a totally period of 15 days as in-patient and underwent two surgeries on his face and the Doctor has assessed the whole body disability at 54%. It is his further case that due to the said injuries, he has spent considerable amount towards conveyance, nourishing food and attendant charges apart from medical expenses and therefore, he has to be compensated reasonably.
5. It is the case of the minor claimant, represented by her grandmother, in M.F.A.No.1271/2010 that she is the daughter of deceased Sireen Krishnappa, in the road traffic accident. It is her case that, deceased was aged about 29 years and a dynamic lady, being the editor, printer, publisher of 'Media Masti Magic' Magazine, earning a sum of `50,000/- per month and also the only earning member in the family and on account of her death, she is rendered homeless and in deep financial crisis apart 10 from losing the love and affection and social and moral support and therefore, she has to be compensated reasonably.
6. On account of the death of the deceased Sireen Krishnappa and the injuries sustained by the injured claimant in the road traffic accident, both the minor claimant, represented by her grandmother and also the injured claimant filed their respective claim petitions before the Tribunal, seeking compensation of a sum of `40,00,000/- and `45,00,000/- respectively, against the owner and Insurer of the offending Lorry and the said claim petitions were numbered as M.V.C.No.75/2004 and M.V.C.No.84/2004. As both the claim petitions arose out of the same accident, both the claim petitions were clubbed together and a common evidence was recorded. The said claim petitions had come up for consideration before the Tribunal on 18th October, 2008. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed both the 11 claim petitions in part, fixing the contributory negligence on the part of the rider of the Motor Cycle and also the driver of the Lorry in the ratio of 50:50 and awarded compensation of a sum of `4,60,000/- and `2,25,000/- respectively, with 6% interest per annum, from the date of petition till the date of deposit, after deducting 50% towards contributory negligence. Being aggrieved by the 50% contributory negligence fixed on the part of the driver of the Lorry bearing Registration No.AP-04/T-5164, the Insurer has filed the two appeals, seeking to reduce the contributory negligence, by re-fixing the same at least at 80% on the part of rider of the Motor Cycle bearing Registration No.KA- 04/EG-5064, whereas the injured claimant and also the minor claimant are also in appeal before this Court, seeking enhancement of compensation and also to set aside the 50% contributory negligence fixed on the part of the rider of Motor Cycle, on the ground that there is no negligence on the part of the rider of the Motor Cycle. 12
7. We have heard the learned counsel appearing for Insurer, learned counsel appearing for injured claimant and also the learned counsel appearing for minor claimant, gone through the grounds urged in the memorandum of appeal carefully and perused the impugned judgment and award passed by Tribunal, including the original records placed before us.
8. Shri.R. Jai Prakash, learned counsel appearing for Insurer vehemently submits that the Tribunal committed grave error, resulting in serious miscarriage of justice, in fixing contributory negligence in the ratio of 50:50, i.e. 50% on the part of the rider of Motor Cycle bearing Registration No.KA-04/EG-5064 and 50% on the part of the driver of Lorry bearing Registration No.AP-04/T-5164, when in fact, the rider of Motor Cycle contributed more to the occurrence of accident. To substantiate the same, he drew our specific attention to the evidence of RW1, the driver of Lorry and the documentary evidence at Ex.R1, rough sketch and submitted that as per the sketch, it is not disputed that 13 the Lorry was parked on the extreme left side of the mud road and not on the main road. The Lorry had been parked very safely without affecting the vehicular traffic. Further, he submitted that, it is not in dispute that the charge sheet has been filed against the rider of the Motor Cycle and not against the driver of the Lorry. Further, it can be seen that the rider of the Motor Cycle, without seeing the parked Lorry on the extreme left side of the mud road, has driven the said vehicle in a rash and negligent manner, at a high speed and dashed against the parked Lorry. Further, the damage caused to both the Motor Cycle and the Lorry as per the IMV report and also the injuries sustained by the rider of the Motor Cycle clearly indicate the impact and the speed at which the rider was riding the Motor Cycle. If he had been slow and cautious, he could have as well noticed the parked Lorry and deviated his direction and avoided the accident or the impact would have been lesser and the deceased would not have succumbed to the injuries sustained in the said accident. Therefore, the Tribunal 14 ought to have fixed the entire negligence on the part of the rider of the Motor Cycle and not at 50% each on the part of the rider of Motor Cycle and driver of Lorry and hence, the impugned judgment and award passed by Tribunal is liable to be modified accordingly.
9. As against this, learned counsel appearing for the injured claimant in M.F.A.No.1090/2009 vehemently submitted that, the Tribunal grossly erred in not assessing the reasonable monthly income of the injured claimant for the reason that he was a young and energetic man, aged about only 24 years, working as a Creative Head and Business Development Officer, at 'Media Masti Magic' a bi-monthly magazine, and getting salary of `15,000/- per month. He submitted that the injured claimant is a B.E. Graduate and in support of the same, he has filed Misc.Cvl.2621/2009, producing additional documents, i.e. the B.E. Degree Certificate and therefore, the monthly income may be re-assessed. Further, he submitted that compensation awarded towards injury, pain and sufferings, loss of amenities, 15 discomfort and unhappiness and conveyance, nourishing food and attendant charges is on the lower side and liable to be re-determined. He also submitted that the injured claimant took treatment as in-patient for a period of 15 days and underwent two operations on his face and also took bed rest and follow-up treatment and was away from his work for quite some time. But, the Tribunal has not awarded any compensation towards loss of income during treatment period. Therefore, he submitted that reasonable enhancement may be made under all the heads and compensation may be awarded towards loss of income during treatment period by modifying the impugned judgment and award passed by Tribunal.
Regarding the contributory negligence fixed by the Tribunal in the ratio of 50:50 and the contention of the learned counsel appearing for Insurer that the rider of the Motor Cycle contributed more to the occurrence of accident, he submitted that, the Driver of the Lorry is wholly responsible for the accident as he had parked the 16 Lorry on the road, without giving any indication, whatsoever so as to caution the other drivers who are passing by. Admittedly, the injured claimant was riding the Motor Cycle on the extreme left side of the road, which is evident from the sketch at Ex.R1. Since there was no indication for having parked the giant vehicle like a Lorry, in the dark at about 10:00 P.M, where there was no proper illumination, the rider of the Motor Cycle has hit the Lorry. Therefore, entire negligence ought to have been fastened on the driver of the Lorry instead of fixing 50% negligence on each side.
10. Learned counsel appearing for the minor claimant vehemently submitted that the minor claimant is the daughter of deceased and is represented by her grandmother. The deceased was aged about 29 years and an upright and dynamic lady, who was running the 'Media Masti Magic' a bi-monthly magazine, having wide circulation, of which she was the sole publisher, editor and printer. She was an able journalist and had filed her income tax returns. Therefore, having regard to the 17 facts and circumstances of the case and considering the fact that the claimant is the only legal heir and a minor aged about only 7 years as on the date of accident, reasonable enhancement may be made towards loss of dependency as also under conventional heads.
Regarding contributory negligence fixed by Tribunal at 50% each, she submitted that if it is the case of the learned counsel for Insurer that the Lorry was parked for loading the guava fruit baskets and the owner and two coolies were present, then, nothing prevented them from examining either the owner or the coolies or any independent witnesses in support of their case. If the Lorry had been parked with due caution by giving some sort of indication for having parked the same on the road, the accident could have been avoided. Further, she vehemently submitted that the pleadings/grounds urged and the stand taken by them are contrary to the relevant material available on file and there is improvement. All these aspects are neither considered nor looked into by Tribunal, while fixing the 18 contributory negligence. Therefore, the contributory negligence is liable to be re-fixed, in the interest of justice and equity.
11. After hearing the rival contentions of all the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the points that arise for our consideration in these four appeals are:
I] Whether the Tribunal is justified in fixing the contributory negligence at 50% each on the part of the rider of Motor Cycle bearing Registration No.KA- 04/EG-5064 and on the part of the Driver the Lorry bearing Registration No.AP- 04/T-5164?
II] Whether the quantum of compensation awarded by Tribunal for the injured claimant and also the minor claimant, for the death of her mother, is just and reasonable?19
Re-Point I] : The undisputed facts of the case in hand are, occurrence of accident and the resultant injuries sustained by the injured claimant Rohith @ Rohith Mankotia in M.F.A.No.1090/2009 and the death of Sireen Krishnappa, mother of the minor claimant in M.F.A.No.1271/2010.
12. After critical evaluation of the entire material available on record, it is crystal clear from the evidence of PWs 1 to 4 coupled with the evidence of RW1 and documentary evidence at Exs.P1 to P19 and Ex.R1, rough sketch, and the IMV report marked as Ex.P6 in C.C.No.321/2004 that, due to negligent act of the driver of Lorry, in not giving any indication, whatsoever, for having parked the vehicle, the rider of the Motor Cycle has hit the Lorry and resulted in the accident. It is the specific case of RW1, the driver of the Lorry that, he had parked the Lorry on the extreme left side of the road from the road side garden to load guava fruits baskets into the Lorry and that the driver of the Lorry was also standing behind the Lorry and the injured claimant, by 20 riding his Motor Cycle, in a high speed in a rash and negligent manner was unable to control himself and came and dashed against the Lorry and thereby, the driver of the Lorry also fell down and sustained injuries and the rider of the Motor Cycle and the pillion rider also fell down and sustained injuries. Further, it can be seen that, as per the IMV report, which is got marked as Ex.P6 in C.C.No.321/2004, the rear right side indicator of Lorry is damaged, light unit is broken and the left side handle of motor bike is bent and front head light is also broken. After careful perusal of the contents of the Mahazar and the IMV report, at Ex.P6 marked in C.C.No.321/2004, it is evident that, due to the negligent act of the driver of Lorry and also the rash and negligent riding by the rider of the Motor Cycle, the accident has taken place and the nature of damage caused to both the vehicles indicates the same.
13. Further, it is significant to note that RW1, the driver of the Lorry has specifically deposed that he had 21 parked the vehicle on the extreme left side of the mud road and the owner and two coolies were present while loading the guava fruits into the Lorry. But, the Insurance Company has not chosen to examine either the owner or the two coolies who were stated to be present in the Lorry while loading or any independent witnesses in support of their case. Further, there is no iota of document produced either before the Tribunal or before this Court to show that the Lorry had been parked with due caution, by giving indications by putting parking lights or keeping some stones around the Lorry or attaching some green plants at the right side of the Lorry. Admittedly, there is no precaution as such taken by the driver of the Lorry. He being the driver of a heavy vehicle, is bound to take due care and caution, when he has parked the Lorry in a non-parking area, on the service road/mud road, even if it is not a high way, even if it is night time and even if there is no much vehicular traffic and is supposed to give suitable indications, particularly, when the area is dark and not 22 properly lit or illuminated. Further, he being the driver of a heavy vehicle, cannot take for granted that the smaller vehicles have to take due care and caution while passing through after noticing the parked vehicles etc.
14. Further, so far as the negligent act of the rider of Motor Cycle is concerned, it can be seen that, as per the sketch marked at Ex.R1, the Motor Cycle has come from the extreme left side of the road and hit the Lorry, which was parked on the left side. May be, if the rider of the Motor Cycle had been in moderate speed and alert, he could have avoided the accident and the impact would have been less. But, since he was also rash and reckless, he has hit the Lorry, before he could know that the Lorry was parked. Thus, the rider of Motor Cycle should have also been cautious while driving at late night in the dark. Therefore, there is no doubt that there is some negligence on the part of the rider of Motor Cycle also. Therefore, it proves beyond all reasonable doubts that the driver of the Lorry has 23 contributed more to the occurrence of accident than the rider of the Motor Cycle.
15. Further, it is relevant to note that the charge sheet has been filed against the rider of the Motor Cycle and the accident has occurred around 10:00 P.M in between T-Hosahalli-Talgavara Road and the said area being a remote village, would not have been properly lit to find out the vehicle that may be parked. All these aspects of the matter have not been properly appreciated by the Tribunal in a proper perspective, while fixing the contributory negligence at 50% each on the driver of Lorry and the rider of Motor Cycle.
16. Therefore, having regard to the totality of the case on hand and after re-appreciation of the oral and documentary evidence available on file, we answer the Point No.1 in the 'Negative' and hold that the Driver of Lorry was more negligent and contributed more to the occurrence of accident and re-fix the contributory negligence in the ratio of 70:30, i.e. 70% on the part of the driver of the Lorry bearing Registration No.AP-04/T- 24 5164 and 30% on the part of the rider of Motor Cycle bearing Registration No.KA-04/EG-5064, to safeguard the interest of both parties and to meet the ends of justice, as against the contributory negligence fixed by the Tribunal in the ratio of 50:50, on the part of the rider of Motor Cycle and on the part of the driver of Lorry.
Re-Point II] : So far as quantum of compensation awarded by Tribunal to the minor claimant in M.V.C.No.75/2004, on account of the death of deceased Sireen Krishnappa and to the injured claimant on account of the injuries sustained by him in the road traffic accident is concerned, it can be seen that, occurrence of accident and the resultant death of deceased pillion rider of Motor Cycle are not in dispute. After proper evaluation of the entire material available on file, it emerges that the compensation awarded by Tribunal for the injuries sustained by the injured claimant and for the death of the deceased Sireen Krishnappa is on the lower side and liable to be re- 25 determined. Therefore, having regard to the facts and circumstances of the case, we answer point No.II] also in the 'Negative' and award the compensation as follows:
17. So far as the quantum of compensation awarded to the minor claimant in M.V.C.No.75/2004 is concerned, it is not in dispute that, her mother, the deceased Sireen Krishnappa was aged about 29 years as on the date of accident and was running a bi-monthly magazine called "Media Masti Magic' and she was the sole editor, printer and publisher. She was regularly filing her income-tax returns and for the relevant year, the annual income shown by her is `85,000/-. Out of this, having regard to the peculiar facts and circumstances of the case and considering the fact that the claimant is the only survivor and aged about only 7 years, we accept the deduction of 1/3rd made by Tribunal towards the personal expenses of the deceased. Accordingly, if 1/3rd (i.e. `28,333/-) is deducted from `85,000/-, the net income comes of `56,667/- per annum. Further, as the deceased was 26 aged about 29 years at the time of accident, the appropriate multiplier applicable is '17', in view of the judgment of the Apex Court in Sarla Verma's case (2009 ACJ 1298), as against '16' adopted by Tribunal. Thus, the compensation towards loss of dependency would work out to `9,63,339/- (i.e. `56,667/- x '17') as against `9,06,640/- awarded by Tribunal.
18. Further, so far as compensation awarded towards conventional heads is concerned, we are of the considered view that a sum of `13,000/- awarded under the conventional heads is on the lower side and as per the decision of the Apex Court in Sarla Verma's case (supra), we award a sum of `45,000/- under the conventional heads, viz. loss of estate, loss of love and affection and transportation of dead body and funeral expenses as against `13,000/- awarded by Tribunal. Thus, the total compensation works out to `10,08,339/- as against `9,20,000/- awarded by Tribunal.
19. As per the contributory negligence re-fixed by this Court as above, in the ratio of 70:30, the minor 27 claimant is entitled to only 70% of the total compensation. Accordingly, 70% of `10,08,339/- works out to `7,05,837/- as against `4,60,000/- awarded by Tribunal, after deducting 50%. There would be enhancement of compensation by a sum of `2,45,837/-.
20. So far as quantum of compensation awarded by Tribunal to the injured claimant in M.V.C.No.84/2004, on account of the injuries sustained by him is concerned, it can be seen that, occurrence of accident and the resultant injuries sustained by him in the road traffic accident are not in dispute. Further, it is also not in dispute that he was aged about 24 years and working as a creative head and Business Development Officer in 'Media Masti Magic', a bi- monthly magazine. It is stated by him that he was earning `15,000/- per month. The said statement cannot be accepted for the reason that the proprietor of the 'Media Masti Magic' magazine, i.e. the deceased herself was earning `7,083/- per month or `85,000/- 28 per annum as per the documentary evidence at Ex.P13, income tax returns filed by her for the relevant year. Further, learned counsel appearing for injured claimant submitted that the injured claimant was a B.E. Graduate and therefore the monthly income of `3,000/- assessed by Tribunal is liable to be modified. He has produced a copy of the B.E. Degree Certificate issued by the Bangalore University. After perusal of the said document, which is produced along with Misc.Cvl.2621/2009, it can be seen that he has commenced his Bachelor's degree in Engineering during September 2002 and completed B.E. course in the year 2006. The accident has occurred during September 2004. Therefore, as on the date of accident, the injured claimant was still prosecuting his studies in B.E. and the submission of the learned counsel cannot be accepted and is rejected. However, having regard to the age, avocation and the year of accident and also the fact that he was still prosecuting B.E. course, we re-assess 29 the monthly income of the injured claimant at `5,000/- to meet the ends of justice.
21. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of `2,22,650/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for.
22. However, so far as the compensation awarded under injury, pain and sufferings, loss of amenities and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of income during treatment period. Admittedly, in view of the road traffic accident, the injured claimant has sustained lacerated wound over right side of neck, lacerated wound over upper 1/3rd of thigh, fracture mandible and other injuries. The Doctor has assessed 80% disability in respect of face and 40% towards right arm and 54% 30 towards whole body. But, the Tribunal, has re-assessed the whole body permanent disability at 30%. The same, in our opinion is on the lower side, for the reason that if both the functional disabilities of 80% and 40% are added, the total disability comes to 120% and 1/3rd of it would be 40%. Therefore, having regard to the facts and circumstances of the case and the nature of injuries sustained and considering the age, the functional disability and the percentage of disfiguration to his face, we re-assess the whole body disability at 40%, to meet the ends of justice. The injured claimant, being aged about only 24 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. We have already re-assessed the monthly income of the injured claimant at `5,000/-, to meet the ends of justice. Further, it is stated that the injured claimant has taken treatment as in-patient for a period of 15 days on account of the injuries sustained and also undergone two operations 31 for his face. 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, disfiguration to face, nature and duration of treatment and surgeries undergone, and the facts and circumstances of the case on hand, we award a sum of `40,000/- towards injury, pain and suffering as against `30,000/-; `20,000/- towards conveyance, nourishing food and attendant charges as against `15,000/-; `15,000/- towards loss of income during treatment period, at the rate of `5,000/- per month for a period of three months; `2,00,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against `1,83,600/- awarded by Tribunal. Thus the total compensation to which the injured claimant would be entitled to would be `4,97,650/- as against `4,50,000/- awarded by Tribunal.
32
23. As per the contributory negligence re-fixed by this Court as above, in the ratio of 70:30, the injured claimant is entitled to only 70% of the total compensation. Accordingly, 70% of `4,97,650/- works out to `3,48,355/- as against `2,25,000/- awarded by Tribunal, after deducting 50%. There would be enhancement of compensation by a sum of `1,23,355/-.
24. In the light of the facts and circumstances of the case, as stated above, the appeals filed by the Insurer in M.F.A.No.685/2009 and M.F.A.No.686/2009 are dismissed and the appeals filed by the injured claimant in M.F.A.No.1090/2009 and the minor claimant in M.F.A.No.1271/2010 are allowed in part.
The impugned common judgment and award dated 18th October 2008, passed in MVC Nos.75/2004 & 84/2004, by the Civil Judge(Sr.Dn) & JMFC., Motor Accident Claims Tribunal, Chinthamani, is hereby modified. 33 The contributory negligence fixed on the rider of the Motor Cycle bearing No.KA-
04/EG-5064 and the driver of the Lorry bearing Registration No.AP-04/T-5164 in the ratio of 50:50 is hereby set aside and the same is hereby modified, by re-fixing contributory negligence in the ratio of 70:30, i.e. 70% on the part of the driver of the Lorry, bearing Registration No.AP-04/T-5164, and 30% on the part of the rider of the Motor Cycle, bearing Registration No.KA-04/EG- 5064, to meet the ends of justice.
The total compensation awarded by Tribunal in respect of minor claimant in M.V.C.No.75/2004 is also hereby modified, awarding compensation of `10,08,339/- as against `9,20,000/- awarded by Tribunal.
As per the contributory negligence fixed at 70% on the part of the driver of Lorry bearing Registration No.AP-04/T-5164, the minor claimant is entitled to only 70% of the total compensation. 70% of `10,08,339/-
works out to `7,05,837/- as against
`4,60,000/- awarded by Tribunal, after
34
deducting 50%. There would be enhancement of compensation by a sum of `2,45,837/-, excluding interest for the delayed period of 390 days in filing the appeal.
The total compensation awarded by Tribunal in respect of injured claimant in M.V.C.No.84/2004 is also hereby modified, awarding compensation of `4,97,650/- as against `4,50,000/- awarded by Tribunal.
As per the contributory negligence fixed at 70% on the part of the driver of Lorry bearing Registration No.AP-04/T-5164, the injured claimant is entitled to only 70% of the total compensation. 70% of `4,97,650/-
works out to `3,48,355/- as against `2,25,000/- awarded by Tribunal, after
deducting 50%. There would be enhancement of compensation by a sum of `1,23,355/-.
The Insurer is directed to deposit 70% of the total compensation, with interest at 6% per annum, from the date of petition till the date of realization, after deducting the amount, if any, already deposited by it, 35 excluding interest for the delayed period of 390 days in filing the appeal by the minor claimant in M.F.A.No.1271/2010, within four weeks from the date of receipt of copy of the judgment.
Out of the enhanced compensation of a sum of `2,45,837/- in M.F.A.No.1271/2010, a sum of `2,00,000/- shall be invested in Fixed Deposit, in the name of the minor claimant - daughter of deceased Sireen Krishnappa in any Nationalized/Scheduled Bank, till she attains the age of 30 years, with liberty reserved to the natural guardian/grandmother to receive the periodical interest till she attains the age of 21 years, for the welfare of the minor claimant and from 22 to 30 years, the minor claimant is entitled to receive the interest periodically;
Remaining `45,837/- with proportionate interest shall be released in favour of the natural guardian - grandmother of the minor claimant, for the welfare of the minor 36 claimant, immediately on deposit by the Insurer;
Out of the enhanced compensation of a sum of `1,23,355/- in M.F.A.No.1090/2009, a sum of `75,000/- shall be invested in Fixed Deposit, in the name of the injured claimant, in any Nationalized/Scheduled Bank, for a period of ten years and renewable for a period of ten years, with liberty reserved to him to withdraw the periodical interest;
Remaining `48,355/- with proportionate interest shall be released in favour of the injured claimant, immediately on deposit by the Insurer;
The apportionment and the manner of disbursement of compensation ordered by Tribunal in respect of the compensation awarded by it remains unaltered;
The statutory amount in deposit by the
Insurer in M.F.A.No.685/2009 and
M.F.A.No.686/2009 is directed to be
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transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
In view of disposal of main matter, Misc.Cvl.2621/2009 for additional grounds does not survive for consideration and is accordingly, disposed of as having become infructuous.
SD/-
JUDGE SD/-
JUDGE BMV*