Karnataka High Court
Kumaraswamy Reddy vs S Govardhan on 6 April, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 5"! DAY or APRIL;v2o'1o'..'._jj ;_. A'
THE HON'BLE MR.JUSTI(:§;I*»L;A'AV '*§.ri1xD Kti1v1A.1§ _
M.F.A. No.135é«5/2.607
A/W. M.F.A. NO.1.3584f-2007
BETWEEN :
Kumaraswamy Raddy '
s/o.BhaskarRAed.dy 3 " . _ Z
Aged about 37 yiéars "
No.27, 7th_.*;;"»Mam.';'. ' " »
8?" Cr0ss,i3rir3idlr1iLfivotitf «_ '
ChunchTagha1:t'a"--1;;,_
Bangjgllore?' _ -- ..APPELLANT
1. -- V * ' (COMMON IN BOTH APPEALS]
{By «Srihari; H
" ' 11x::'tv1,1«*;)&. 13585/2007'
Aged 13. K.' 'Saizjranarayana
R/3... Nd."/'/. 1", CC. Nagar
13* Cross, Shanthinagar
Opp. Sub Jail, Hosur 635 109
'D/'£A.F'.A. N(3.1358«~'§/2007
u 'I'.P. Srimivasan
8/ 0. Padmanabha Shetty
Aged about 51 years
2. Srnt. Ananclalakshmi
W/ 0. "RP. Srmrvasan
Aged about 43 years
R/a. No.6040, D Tank Street
Hosur, Krishnagiri District b " »
(By Sn. K.P. Pradhan, Adv. for
Sn. K.T. Guruprasad, Adv.)
These appeals are fi1ec1_..11]'s.,17_3[ I] of Act against
the judgment and vavvard dated" 8.512007 passed in MVC
NOs.352-4/2006 and 3523./200-6:.on*ith.ehfi1e of the Member,
MACT, Metropolitan Area,--l3ar1gaiore._
These foriiififearing this day, the
Court delivered.tfie'?fo11ox2Ving:.._Vi', A V-
hvffsanomsnr
V . _'I'heres15on.d'ent:beiore the tribunal is in appeals before
Atquestiofling the correctness and legality of the
itjtrelgment and awards passed in MVC
'Nq§';3523'/72066 and 3524/2006 dated 8.5.2007 whereunder
the ciain: petitions came to be allowed in part.
2. The facts in nut~shel1 are as follows:
On 18.1 1.2005 at about 8.30 p.m. one Chandrashekar
@ Shekar along with one Govardhan as pillion rider was
V
proceeding on a motor cycle bearing registration No.KA--05-
EY--1814 on chandapura--}3angalore Main Road towards
Bangalore side and when the vehicle came near SKF'»U*rTurn,
it was contended that a road roller driven and
negligent manner dashed from behind to the
cycle driven by Chandrashekar @"SAhe'E{a.r land' the
spot and pillion rider Govardhanllis tollliave
multiple injuries. On accountiofjgdeathnof iihanldralshekar
Shekar, his legal heirs nargneiylfather anld"1'i1other filed a
claim petiton in ii/l's-,.166 of IMV Act,
1988, claiminga total""c8:i:;§eiisa:i8n~:.'§5f Rs.l0,00,000/-.
Likewise, naniely Govardhan, who was a pillion
rider V' the said:.l,.'vehicle<""filed a claim petiton in MVC
No.3524/808.8 u/s.1'88l"'8f IMV Act, 1988, claiming a total
coriipérisatipn of 'R"si;'3',loo,ooo/-- for the injuries sustained by
« of notice, the respondent appeared and filed
statement' objections denying the petiton averrnents.
3. On the basis of pleadings, tribunal framed the
lfollowing issues for its determination:
1. Whether the petitioners in both the cases
prove that, on 18.11.2005 at 6.30 p.In., on SKF
.
4
U--Turn on Banga1ore--Hosur Main Road. on NH- '? Road. they met with an accident and deceased in MVC No.3623/2006 succumbed to it petitioner in MVC NO3524/2006 sustai_ric.d__' A' injuries, was due to actionable negligencepact-Din' the part of driver of road ro11e_r...as__a1leged' "?: V V
2. Whether the petitioners entitled compensation ? If 50» ho\t?v..In11oh whom'? he it it he
3. What order '?
4. The 2175- vc1ain1ant--r11othe'r_ ofethe "deceased in MVC No.3523/ and got marked Exs.P.;i Ciout/ardhan who had filed MVC No.35f2x4/22006 'gothAihiniseifexamined as P.W.2 and also got marked docurnents as. per Exs.P.13 to 16. The claimant in Net,3524/2eOO'6"'[Govardhan} also examined the doctor. him, as P.W.3 and through the said witness narne1y3_ they got marked Exs.P.17 to 19. On the basisethe pleadings and evidence on record, tribunal by its A ij" and awarded dated 8.5.2007 allowed the claim petitions in part and in MVC 190.3523/2006 tribunal 'awarded a compensation of Rs.3,81,000/-- and in MVC i\To.3524/2006 tribunal awarded a compensation of & Rs.1,20,500/-- with interest at 6% p.a. from thee--date of petition till the date of payment. It is these awards which are challenged in the present _,_ .,
5. I have heard Sri. Al1e§'re§a appearing for the appellantlllatidp Counsel appearing onsbehalf Sri. lt..T.:.C:,'lnr1rprasad for respondnets. A 't V .
6. the appellant in both cased in question has not of driver of road roller owneclliavl the before tribunal. In order to prove thisV_poir1t,4""'h_e has attention of the Court to the evidence of xP.WsV.'1"'afid 2 to contend that admittedly, motor at a speed of 60 to 65 kms. per hour and rollervlitvas driven at a speed of 8 to 10 kms. per hour and bvrio stretch of imagination, road roller could have _ A dashed against motor cycle and hence accident in question has not occurred. He would also draw attention of the Court to the evidence of doctor P.W.3 namely cross examination wherein doctor has admitted that if a person falls to the %,/' accident in question has not occurred on account of negligence of driver of road roller. Accordingly,.&hel:s'ee'ltsvvfor allowing of appeals and to set aside the order an alternate plea, he would this Court were to come to a conclusion that examination of driver of roadro*l.l,er vlras fifatal, be" t remanded to tribunalswtith appellantfiherein to lead evidence and pro\'re:dniS--..also submits that compensation is exorbitant and not sustained by P.W.2 or heirs of the deceased Chandrash_ekar §heltar;- _ . ' .7. Per contra, Pradhan, learned Counsel for the it ~. reslp.ond'ent's..by the judgment and awards passed byil. contend that admittedly, R.Ws.1 and 2 whollhave. examined by respondent to substantiate their defence are the eye witnesses to the accident. Their evidence be accepted since they were not personally present at l the spot when accident in question has occurred. On the other hand, he would rely upon evidence of P.W.2 namely, the injured Govardhan to contend that he was the best aw' person to speak about the nature and manner in_..which accident has occurred and this fact having tribunal does not require to be set aside as learned Counse} for the appellant since nothing;-is eljicitedl' _g the cross examination. He would :al's'o'subn1it herein has not let in evidence before tr;fbunal}._He_:yvoul:d-.pa1so submit that judgment and awards passed by [tribunal has"to*.. be confirmed by applying "principles of -sti*_icV't--:vV4iia'bility"'V'l and it does not call for any___Vint_e1'"ferenc'e'*«and seeks for dismissal of appeals. ' jvlieanaedlvlélounsel for the parties, the following points 'consideration:
5. ll Wffiethe1*lthe."Tnbunal was justified in holding that :ac'c.igdent«Vinwvquestion has occurred on account l * negligence of driver of road roller 'P finding of tribunal on this issue is based " 'on sound appreciation of evidence or it requires any interference at the hands of this Court 'P 3} Whether compensation awarded by tribunal by its judgment and awards passed in MVC N0s.3523/2006 and 3524/2006 dated 8.5.2007 is M 10 the road roller was not driver by its driver in_.a__ rash and negligent manner. The said accide4n.tV_:is_'»l*.._ not caused by the road roller but it is duets' negligence on the part of the rider orwo' Wheeler. He said act can be__}oo.l{ed into sketch produced by the petitioncershbefolre at Hon'ble Court. " 4' W. 2 --. "
10. In so far as defence---se:t'fup' 'No.3vE3">24/2006. it reads as under: it 0 0 0 it 0 0 "The respendentlslv'vei1icie:f--vvas «driven by its driver utheédtraific"'rti1es, and the petiijione-hr in a provision store. mt¢o1t1i:~:r1--'i~.ro'f5 of the petiton and is ta'residentg'oifilfiangalore and aged 20 years "he 'was:--jfno_4"earning income as stated in _ co}1,1tr'1'1nVl"~Io,6. and Vtiitere is no any loss of income. 'There vvasV.n__o___&any injuries on the body of the V as stated in the petition. It is only to = getjpbcoraplensation, the petitioner purposely filed 0 claim petition claiming exhorbitant conipensation from the respondent. The injuries L it might have occurred due to some other incident H in Bangalore and he was not coming to Bangalore along with Chandrasekhar in the said two wheeier. That apart he was admitted to hospital on 19.11.2005 whereas the accident alfeged took place on 18.11.2005. "14
2913.200? that driver of road roller informed him about the accident over phone. If it was case of driver of roariroller that accident had not occurred he could have this could have been spoken to by R.W.1 _ his cross examination admits that heudoes. not ?;_{11o1tif'a's tc whether care and caution has been._ta'i1:en byldriver' of«road'~..L roller. In his own words. it readsas underzl h "I do not knoWVcorrectly"'h'oVW: the._accident"took place and as such', my driver had taken more A A would have been axroirlgég; I have ...faken"ithe..photographs of the spot'-:a--nd~~_I_ hairs produced them to '99
15. ilnhhyievy this everwhelming evidence, this Court is not inclined "--vto__'_'_accept contention raised by learned »Cou_nse1_ '«for,:ap_pe1iant that accident in question has not occurred' 'account of actionable negligence of driver of road" roller." 4'
16. In so far as the contention raised by learned "counsel for appellant with regard to PM report at E-,x.P.3 to contend that in the event of head of deceased had come &//..
15 below wheel of road roller it wold have become flatfeannot be accepted for the following reasons: 3 ' pl : V
a) PM report at Ex.P.3 would reveal body being brought to niort'ua.ry it b d it is noticed as follows: V V l A in it Dead body is thatVloi"a.Vppmale cms. In length, brown coz'npie2;ioned'--xnoderately built and moderately Rigor rnortis present all over 'lfivor mortis present over the:-bacI::.:":HVeade. is from side to side; llfijlcoiod over scalp, face, neck? , V ' 4' It the evidence of P.W.2 that admittedly deceased t;{as«i3§?earing a helmet. As per evidence of 1"road ro'lle1j_was proceeding at 8-10 kms and motor »bVike_ .,a""speed of 6065 kms. is to be accepted and on laccopuntv of'*thep:= accident in question, the driver of road roller wotiid hatrelllnaturally and instantaneously applied brakes, does not unnecessarily mean that injured went below lwheeils of road roller totally. In the absence of evidence of '*'d:river, the contents of PM report cannot be held and concluded that accident in question has not occurred. In W 16 these circumstances, this court is not inclined tcfaccept submissions made by learned counsel for the_"4'aV;j:p'eilant. Accordingly, same is rejected. In View of th'e._':abov:e;' Nos.1 and 2 formulated herein aboi/e'--a.re'..answAere_dagainst appellant and it is held that ..ouestiori"--has.bV occurred on account of actionable n'egligence lvldiii/er of road roller.
18. Re.Pgi;;;__1_vg;,;_:§;'~--1L':: V The for the appellant that under various heading i__s.A1__g;onsidered by this Court on reappreciation of f f :3 ;*ln_. M\l'C».l\l'of.35i23/2066, legal heirs of deceased . naniely father and mother had filed claim vsiarrxe had been allowed in part by awarding coinpensati_ot%1 of Rs.3,8},OO0/-- under the following heads:
if t.Loss of dependency Rs.3,36,000--OO Loss of love and affection Rs. l5,000v~OO Funeral and obsequies Rs. 10,000--OO Loss of estate Rs. l5,0€)O--0O 17 Transportation of dead body Rs' 5,000-OO TOTAL Rs.3,81,0OO-00,:"-.:7.._
19. Whiie arriving at loss of dependency taken into consideration that deceased rvI'1ob§}:e"' store and also having mobile phone opitiets was earning Rs.-4,000/-- p.m.5V[<:1airnant._s' ; earning Rs.5,0()O/- p.m.}. In ksubpport of ciaim, the claimants had produced_zfstate_me_nt ofbarik account of Vysya Bank as per Ei;s.P.10_toV:b1'2. 'the partnership deed which deceased with another partner was rubnziirig a 'Friends Mobile Gaiiery" and this; CL':-%.riy".'eL3jvt"ab1i:Shév:; the fact that he was doing business m"'1noh.iiIAe }5hones.wHB«3&z considering this fact as the business vbjy,:',C1eceased and by taking into consideration ~t_ribunaI has arrived income of the deceased at p.m. Considering the age of the mother, apnropnate multiplier of 14 has been appiied and this Court K does not find any reasonable ground to take a different View from what has been taken by tribunal and aeeordingiy, it is heid that compensation awarded by tribunal in MVC at/"
18
No.3523/2006 does not call for interferen<[:e.»{ and compensation awarded is just and reasonable. . V
20. In MVC No.3524[20(_.}§; '*tribt;{na§.V."has_ gwaraied T A' compensation of Rs. 120,500 / - foiiotaring Pain and agony Rs.
Medical Expense;s'~~..&_ :«'=_35.00i3-i)0 Loss of income dufiIig_ Treatmentv V . - '- ¢4,500--00 __ , of a1I"1eni3';ieVs''"''=._ , Rs. 50,000--OO %%%% % Rs.l,20,500-00 __§'2iu.. The while -'awarding the above said found as per Ex.P.13 Wound certificate "A "thaf_c;dIAaini'a.nt sustained fracture of ieft acetabuler roof, ante':rior.--..disiocation of ieft feneral head and was inpatient at V"'i~ioesMA'r hospital from 19.11.2005 to 23.11.2005 and had _ dd and-ergone surgery by way of closed reduction and high tibial .,s1«;e1etai traction on 19.11.2005. It is also found by tribunal that as per Ex.P.18--OP record, claimant had taken further 19 treatment in HOSMAT hospital. On account of saidinjguries sustained, the claimant was unable to carry on._hi,sl'nornial duties for about 3 months and considering agieét tribunal has awarded a compensatior1-- V-"under heading pain and agony which reappreciation of evidence islttibe held justugandllreasohable,VV In so far as the claim gtowalideuiiried'icine,.lhospital charges, tribunal after considering' blilllsjiroduced at E1xs.P.15 and 16 amounting a sum of Rs.36,OOO/.7, 2 during treatment period, H been awarded. The compe_nsati.onaniiarded'«under these heads cannot be said to be exorbitant of days of hospitalisation, natufrev of inju1'-iesas well as treatment obtained by claimant. . ll"-In so Aeornpenlsation of Rs.50,000/-- awarded towards
-..for_-unh.ap.pin.es,s~*and loss of amenities in life, the tribunal has--.,fouv_n~d on consideration of evidence of P.W.3 which Wis to thve__A:effect that claimant is unable to carry on normal like sitting, standing for long time, squatting, walking fastly, climbing stairs and using Indian toilets and movement of the left foot are restricted and painful and he cannot bear full weight on the left leg, which according to Q//l " oi order as to costs.
20 this Court on reappreciation has to be held as jn's~t[ and reasonable and not exhorbitant as contended.«._l5y:learned Counsel for the appellant. In View of the herein above, this Court is of the opinion that. .corlé.pen'satio'n awarded by tribunal in ::':$ids.3s23l/2006 3524/ 2006 is just and reasonable and doesVVAn'otl"e:all'for anyll interference in these appeals.
22. Re. l?u~i;i";__I_\T_g;,4_g:'h* I'; V In viexzftof following order is passed: """ LL. ._ , -- .
a) appeals'--"-are -l Judgment and awards passAed._L:'1'n and 3524/3006 dlated. 8.5u.20_QV7V1by VEVIACT, Court of Small Causes, 'V " A V are hereby confirmed deposit if any is ordered to be A'Er_ansvInitnted to the jurisdictional tribunal for disb ursernent.
Sd/~ A ESDGE