Karnataka High Court
Afsar Pasha vs Rakshith N on 7 March, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.4095 OF 2019 (MV-I)
BETWEEN:
AFSAR PASHA
S/O ABDUL BASHEER
AGED ABOUT 30 YEARS
R/AT NO.26/2, JANATHA COLONY
CHALLAGHATTA, KUMBAGODLU
BENGALURU - 560 074
.. APPELLANT
(BY SRI K.SHANTHARAJ, ADVOCATE)
AND:
1. RAKSHITH N
S/O.NAGARAJU K
MAJOR
R/O NO.1, 1ST 'D' MAIN
2ND CROSS, UPANAGAR
BENGALURU - 560 060
2. UNITED INDIA INSURANCE
COMPANY LIMITED
BY ITS MANAGER
6TH FLOOR, KRISHI BHAVAN
HUDSON CIRCLE
NRUPATHUNGA ROAD
BENGALURU - 560 001
... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R-2; NOTICE
TO R-1 IS DISPENSED WITH)
***
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED
24.01.2018,PASSED IN MVC NO.396/2018, ON THE FILE OF
THE XXI ACMM, & XXIII ADDITIONAL SMALL CAUSES
JUDGE AND MACT, BENGALURU , PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard learned counsel Mr. Shantharaj.K., learned counsel for appellant and learned counsel Mr. Ravish Benni, learned counsel for respondent No.2.
2. This is an appeal preferred by the claimant being aggrieved by the judgment and award dated 24.01.2019 in MVC No. 396/2018 before the MACT, Court of Small Causes at Bengaluru (hereinafter referred to as 'the Tribunal') seeking for an enhancement of the compensation.
3. Brief Facts:
On 28.10.2017 at about 08.00 pm when the claimant was walking near Mobile Mane, Kengeri Upanagar, Bangalore a motor cycle ridden by its rider bearing 3 Registration No. KA-04 HW-2184, came in a high speed in a rash and negligent manner from his opposite side and dashed against the claimant. As a result of which claimant fell down and sustained grievous injuries. Immediately, he was shifted to Shreya Hospital, Bangalore, where he has taken first-aid treatment and thereafter he was shifted to Rajarajeshwari Hospital and obtained treatment.
4. It is the case of the claimant that before the accident he was hale and healthy and doing driving work and earning Rs.40,000/- per month. Pursuant to the accident he is disabled permanently and he is unable to do day to day activities as directed by his employer. Therefore, he has lost earning capacity to drive a motor vehicle as that was his skill and technical knowledge. Due to the accident the claimant has suffered serious injuries and incurred huge financial expenditure towards treatment and surgery. Therefore, he has filed a claim petition before the Tribunal seeking compensation.
5. On service of notice, respondent No.1 - owner has not contested the case before the Tribunal and hence, he was placed exparte. The respondent No.2 - the Insurance company, appeared and filed its statement of 4 objections. It denied the claim made by the claimant, inter alia, also took up a plea that the accident occurred due to the fault of the claimant and contended that the respondent No.1- rider of the motor cycle was not holding a valid driving license as on the date of accident, therefore, he violated the terms and conditions of the Policy. It is contended that the negligence was on the part of the claimant himself as he was not crossing the road at the place specified and reserved to cross the road. He was crossing the road by violating the traffic rules. Further, pleaded that there is contributory negligence on the part of the claimant. Hence, denied the liability on itself to pay the compensation and sought for dismissal of the claim petition.
6. On the basis of the pleading the Tribunal framed relevant issues.
7. In order to prove and establish his case, the claimant got examined himself as PW1 and got marked Ex.P1 to P10. He also got examined a Dr B.N.Roashan Kumar, Orthopedic Surgeon as PW2 and marked three documents at Ex.P11 to P13. The respondents, on the other hand, got examined Mr. Rakshit, as RW1. However, did not produce any documents on their behalf. 5
8. After hearing both sides and providing sufficient opportunity to both parties, the Tribunal came to the conclusion that the claimant is liable towards contributory negligence of 25% and he would only be entitled for a compensation in a sum of Rs.2,83,180/- with interest at the rate of 8% per annum from the date of claim petition till the date of payment. The respondent No.2 - Insurer was directed to pay the compensation.
9. Being aggrieved by the Judgment and award of the Tribunal for inadequacy of compensation and fastening of contributory negligence of 25% on him, the claimant has preferred this appeal seeking for enhancement and to set aside the contributory negligence attributed on his part.
10. The point that would arise for consideration is as to whether the Tribunal has awarded a reasonable and just compensation in commensurate to the injuries suffered by the claimant in the accident occurred on 23.09.2017?
11. It is vehemently contended by the learned counsel for the appellant that the judgment and award passed by the Tribunal is erroneous in law and Tribunal has awarded a meager and inadequate compensation resulting 6 in mis-carriage of justice to the claimant. He further contends that contributory negligence attributed by the Tribunal is erroneous, unreasonable and is against the material evidence produced by the claimant.
12. He further contends that that there is absolutely no contributory negligence and entire negligence deserves to fastened on the respondents. He further contends that the income assessed by the Tribunal to compute the compensation at Rs.9,000/-p.m is on the lower side, whereas the claimant being the driver in profession was earning a sum of Rs.40,000/- per month and accordingly the same requires to be enhanced. He further contends that the percentage of disability has been elaborately discussed by PW2, none other than Doctor and in his evidence stated that claimant has got permanent disability at 45% to the left lower limb, which is 15% to his whole body. However, Tribunal has taken only 13% as disability, which is contrary to the material produced and erroneous to the evidence adduced by PW2 - doctor.
13. He further contends that Tribunal has erred in not computing the appropriate compensation for the loss of income during the laid up period and so also towards future 7 medical expenses, which are on the lower side. He further contends that the compensation awarded towards loss of future income and happiness by the Tribunal is on the lower side and the same requires enhancement. Hence, on those grounds he seeks to allow the appeal and enhance the compensation.
14. Per contra, learned counsel Mr. Ravish Benni, learned counsel for respondent No.2 - Insurer vehemently contends that judgment and award passed by the Tribunal is a reasoned and considered order and the Tribunal has considered all aspects of income, multiplier, loss of future income so also pain and sufferings and accordingly awarded just and reasonable compensation and the same does not warrant interference by this Court. He further contends that disability has been arrived by the Tribunal based on the evidence lead by Doctor as PW2 and accordingly there is no requirement of interference under this head.
15. He further contends that the Tribunal relied on the documents produced by the claimant at Ex.P1 to P3 and P6, wherein it is specifically stated that the rider of the offending motorcycle riding the same in a rash and negligent manner and dashed against the claimant who was 8 standing beside the road. He further contends that the version of the respondent No.2 - Insurer is that there is negligence on the part of the claimant himself as he was crossing the road violating the traffic rules and regulations and at the place where there was no provision for pedestrian to cross the road. This aspect of the matter was not considered by the Tribunal. Further it is his contention that claimant has also contributed for occurrence of accident. He further contends that it is the case of the claimant that he is not crossing the road at stipulated specified point of crossing the road, namely Zebra crossing He further contends that it is very clear from the documents produced that the claimant was cross the road violating the rules and regulations and hence he is liable to be fastened contributory negligence. Thus, awarding of 25% contributory negligence as against the claimant is correct and same does not deserve to be interfered. On the basis of these submissions learned counsel for respondent No.2 - Insurer submits that the appeal does not merit consideration and the same requires to be dismissed.
16. Having heard the learned counsel for appellant and respondent No.2 and having perused the orginal 9 records and the impugned judgment and award, this Court is of the opinion that this is a fit case for enhancement of compensation in favour of the claimant for the reasons stated below.
17. It is not in dispute that the accident occurred on 23.10.2017 at 8.00 pm when the rider of the motor cycle dashed against the claimant who was walking near Mobile Mane, Kengeri Upanagara, Bangalore from West to East. In order to prove his case the claimant has produced Ex.P1 to P3, which are Police records, wherein the FIR registered against the rider of the vehicle and charge sheet is filed and panchanama was also drawn. Once charge sheet is laid against the rider of the motor cycle, which is apparent that the charge is placed by the Police after thorough investigation against the rider of the motor cycle. It is their claim that there is a rash and negligent manner of driving by the rider of the motor cycle. Though learned counsel for respondent No.2 - Insurer contends that in the FIR, charge sheet and the spot panchanama, it is clearly mentioned that the claimant was moving from West to east after crossing the divider in the center of the road and some where about 8 ft accident occurred, which is apparent from the 10 documents produced by the claimant himself. However, the charge sheet or criminal case have not been challenged either by the respondent No.1 or respondent No.2. This apparently would go to show that there is no challenge to the charge sheet prepared by the Police after conducting investigation.
18. However, learned counsel for respondent No.2
- Insurer has read out the spot panchanama - Ex.P3, in support of his case. It is further contended by the learned counsel for respondent No.2 - Insurer that the compensation awarded under all other heads are commensurate with the injuries sustained by the claimant which does not warrant interference by this court.
19. In motor vehicle accident cases what has to be kept in mind and for consideration by the Court is preponderance of probabilities and not proof beyond reasonable doubt has to be proved as contemplated under criminal law.
20. In the present case on hand when the claimant has made out effective statement by furnishing police records that he was a pedestrian and he was hit by the 11 motor cycle while he was standing in front of Mobile Mane at Kengeri Upanagara, Bangalore, then it is for the respondents to disprove the case of the claimant that he was walking in the center of the road and not standing on the side of the road. When the same has not been countered and disproved by the respondents, the question of attributing contributory negligence as against the claimant by the Tribunal to the extent of 25% deserves to be interfered by this Court.
21. It is not in dispute that apart from producing ex.P7, which is copy of driving license of the claimant, no other document is produced to show that he was a driver and doing driving work and earning Rs.40,000/- per month. Merely saying that he was earning Rs.40,000/- by doing driver job no other relevant documents are either produced before the Tribunal nor before this Court. However, in view of there being no cogent material evidence to show his income, the income is taken by the Tribunal at Rs.9,000/- per month for the accident having occurred in the year 2017, I am in agreement with the argument of the learned counsel for the claimant that when there is no income proof produced by the claimant then Tribunal or this Court has to 12 adopt notional income as per the chart provided by the Legal Services Authority.
22. In the present case on hand the accident occurred in the year 2017, the notional income ought to have been taken at Rs.11,000/- while the Tribunal has taken Rs.9,000/- which is on the lower side. The claimant has also produced Ex.P6 - driving license to show that he is a driver by profession, which is not disputed by the respondents. Further the claimant has not produced any supporting document to show that he was a driver by profession and was earning Rs.40,000/- per month. In the present case, since the claimant has produced his driving license, and he being a skilled worker, I deem it appropriate to take his income at Rs.12,000/- per month. Accordingly, the income of the claimant is taken at Rs.12,000/- per month.
23. The claimant has produced Ex.P8, which is aadhar card and Ex.P7 - driving license, the date of birth of the claimant is shown as 10.09.1987 and the date of accident is 23.10.2017. Thus, as on the date of accident the claimant was aged 31 years. Therefore, the proper multiplier applicable to the claimant as per the judgment of 13 the Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121 would be 17. The Tribunal has adopted multiplier of 16. In my opinion the proper multiplier 17 has to be adopted.
24. Claimant has got examined PW2 - Doctor, who has stated in his evidence that the claimant has suffered grievous injuries and sustained lacerated wound on left side forehead, there is permanent disability to the extent of 45% to the left lower limb and 15% to the whole body, whereas the Tribunal has taken disability at 13%, which is erroneous and the same is required to be fixed at 15% to whole body. Therefore, the claimant is entitled to compensation in a sum of Rs.3,67,200/- (Rs.12,000 X 17 X 12 X 15/100) towards loss of future income as against Rs.2,24,640/- awarded by the Tribunal.
25. The Tribunal has awarded a sum of Rs.40,000/- towards pain and sufferings. The claimant was inpatient for 13 days and he has suffered fracture to his left leg. Therefore, I deem it appropriate to enhance it by another Rs.10,000/-. Accordingly, claimant is entitled to 14 compensation in a sum of Rs.50,000/- towards pain and sufferings as against Rs.40,000/- awarded by the Tribunal.
26. The Tribunal has awarded a sum of Rs.18,000/- towards loss of income during laid up period, which deserves to be enhanced to Rs.36,000/- (Rs.12,000 x 3), which accordingly awarded
27. The Tribunal has awarded a sum of Rs.20,000/- towards loss of future amenities and happiness. In the facts and circumstances of the case, I deem it just and proper to increase the same by another Rs.20,000/-. Thus, the claimant is entitled to compensation under this head at Rs.40,000/-.
28. A sum of Rs.20,000/- is awarded by the Tribunal to the claimant towards attendant, conveyance, food and nourishment charges, which I do not find on the lower side and does not require any interference.
29. Towards loss of future medical expenses the Tribunal has awarded compensation to the claimant in a sum of Rs.15,000/-, whereas PW2 - Doctor has lead in evidence with regard to the injuries and expenses to be incurred in future for removal of implants and other 15 incidental expenses Therefore, keeping in mind the evidence of the doctor and his opinion, I deem it just and proper to award a sum of Rs.25,000/- towards future medical expenses as against Rs.15,000/- awarded by the Tribunal.
30. The Tribunal on the basis of the medical bills and other documents produced by the claimant as per Ex.P10, has awarded a sum of Rs.39,831/- towards Medical expenses. In my opinion awarding of the said amount is based on the materials produced by the claimant. I deem it just and proper and the same is retained.
31. On careful consideration of the evidence both oral and documentary and also submissions of the learned counsel for appellant as well as respondent No.2 - Insurer, I am of the opinion that the Tribunal has committed an error in fastening 25% contributory negligence on the part of the claimant, whereas there is no basis or material evidence to award such contributory negligence as against claimant. Further, there is no dispute with regard to registration of FIR and charge sheet Unless there is any cogent evidence and relevant documents produced by the respondents, fastening of contributory negligence on the 16 part of the claimant is an error committed by the Tribunal. In the present case on hand, it is only preponderance of probabilities which is required to be proved by the claimant and not proof beyond reasonable doubt as required in criminal case. Therefore, I deem it proper that contributory negligence fastened by the Tribunal requires to be set aside. Accordingly, it is set aside.
32. In view of the discussions made above, the claimant would be entitled for the enhanced compensation as mentioned in the table below.
Sl.No. Heads Amount (Rs.)
1. Loss of future income 3,67,200=00
(Rs.12,000/- X 12 X 17 X
15/100)
2. Pain and suffering 50,000=00
3. Loss of income during laid 36,000=00
up period
4. Loss of future amenities 40,000=00
and happiness
5. Attendant, conveyance, 20,000=00
food and nourishment
charges
6. Future medical expenses 25,000=00
7. Medical expenses 39,831=00
TOTAL: 5,78,031=00
33. In view of the discussions made above, I pass the following:
17
ORDER
i) The appeal is partly allowed.;
ii) Consequently, the judgment and award dated 24.01.2019 in MVC No. 396/2018 before the MACT, Court of Small Causes at Bengaluru is modified.;
iii) The compensation awarded by the Tribunal is enhanced from Rs.3,77,471/- to Rs.5,78,031/- (Rupees five lakh seventy eight thousand thirty one only), with 6% interest from the date of claim petition till its realization.;
iv) The contributory negligence saddled on the claimant at 25% by the Tribunal is set aside. The respondent No.2 - Insurer to deposit entire award of compensation by the Tribunal and enhanced by this Court.
v) All other conditions imposed by the Tribunal being left intact.;
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vi) The insurer shall pay the differential enhanced compensation amount within a period of six weeks from the date of receipt of a copy of this judgment, failing which the interest would accrue at 9% for the said amount.
vii) Registry to forthwith send back the trial Court records.
viii) No order as to costs.
Sd/-
JUDGE VK