Karnataka High Court
North West Karnataka Road Transport ... vs Hanmant Beerappa Kuribalappa on 21 July, 2003
Equivalent citations: I(2004)ACC542, 2005ACJ1372, ILR2003KAR3476, 2003 AIR KANT HCR 3077, 2003 A I H C 4719, (2003) 4 CIVLJ 499, (2005) 2 ACJ 1372, (2004) 1 ACC 542
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT Sabhahit, J.
1. This appeal and the Cross Objections arise out of the judgment and award passed by the Addl. MACT., Belgaum, in MVC No. 1874/1997 dated 31.5.1999.
2. The essential facts of the case with reference to the rank of parties before the Tribunal are as follows:-
The petitioner filed a claim petition on 28.11.1997 under Section 166 of the Motor Vehicle Act, seeking compensation of Rs. 2,00,000/- towards injuries and consequent disability suffered by him in a motor accident that occurred on 1.11.1997. It was averred that the petitioner with the knowledge of the Conductor of the Bus, was travelling on the top of the KSRTC., Bus bearing No. KA.22.F. 592 and the accident occurred solely due to the rash and negligent driving of the Bus by its driver.
3. The petition was resisted by the respondent. It was averred that the accident did not occur due to the rash and negligent driving of the bus. Petitioner had boarded the Bus without the knowledge of the driver and conductor and the petitioner himself was responsible for injuries sustained by him and wherefore, the respondent is not liable to pay any compensation.
4. The Tribunal framed appropriate issues. On behalf of the claimant, the claimant examined himself as PW1 and also examined PW2, the father-in-law of the petitioner and also PWs 3 and 4, Doctors and got marked documents, Ex.P1 to P36. On behalf of the respondent, the driver of the Bus was examined as RW1. However, no documentary evidence was produced. The Tribunal after considering the contention of parties and the material on record, held that the accident occurred due to the rash and negligent driving of the Bus by its driver and further held that the claimant was also guilty of contributory negligence and apportioned contributory negligence in the proportion of 60% on the part of driver of the Bus and 40% on the part of the claimant and further held that the claimant would have been entitled to compensation of Rs. 1,40,000/- and in view of the finding regarding contributory negligence, reduced the compensation to Rs. 84,000/- and passed the award for the said amount with interest at 6% per annum from the date of petition to the date of payment. That being aggrieved by the said judgment and award, the respondent-KSRTC, has preferred the appeal and the claimant has filed cross-objections.
5. I have heard the learned Counsel appearing for the appellant-KSRTC, and the learned Counsel appearing for the respondent -claimant.
6. Learned Counsel appearing for the appellant in MFA. 48007 1999-KSRTC, submitted that the accident was not due to the rash and negligent driving of the Bus and the petitioner was on the top of the Bus without the knowledge of the driver and conductor of the Bus and he sustained injury due to his own negligence and wherefore, the respondent was not liable to pay compensation. He further submitted that even otherwise, the apportionment of blame worthiness is on a higher side of the driver of the Bus and the quantum of compensation awarded is also excessive.
7. On the other hand, the learned Counsel appearing for the respondent in MFA 4800/1999 - claimant submitted that the accident occurred solely due to the rash and negligent driving of the bus by its driver and not due to any contributory negligence on the part of the claimant and the quantum of compensation awarded by the Tribunal is on a lower side and the respondent - claimant is entitled to enhancement of compensation as sought for in the appeal.
8. Having regard to the contentions urged, the point that arises for determination in this appeal and Cross objections are:
1. Whether the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the KSRTC, Bus and the claimant and also contributed to the extent of 40% in occurrence of the said accident and in reducing compensation to that extent, is justified having regard to the material on record?
2. Whether the quantum of compensation awarded by the Tribunal is excessive as contended by the KSRTC., and on a lower side as contended by the claimant and what is the just and reasonable compensation to be awarded to the claimant?
I answer the above points for determination as follows:-
Point No. 1 : In the Affirmative Point No. 2. : The claimant is entitled to enhancement of compensation to Rs. 1,50,000/- for the following: REASONS
9. It is the case of the claimant that since there was rush in the Bus, the Conductor asked him to board on the top of the Bus and he was travelling on the top of the Bus with the knowledge of the driver and the conductor of the Bus and the accident occurred solely due to the rash and negligent driving of the Bus by its driver. On the other hand, the respondent-corporation contented that the claimant was on the top of the Bus without the knowledge of the driver and the conductor and wherefore, the accident occurred solely due to negligence of the claimant himself and he was travelling unauthorisedly on the top of the Bus and wherefore, the respondent is not liable to pay compensation. The fact that the claimant was travelling on the top of the Bus and that the accident occurred and that the claimant sustained injury when an overhanging branch of the Tree hit his head, is not in dispute.
10. I have gone through the oral and documentary evidence adduced by parties to find out the validity of the contentions raised in this appeal.
11. RW1 is the only witness examined for the respondent. He is the driver of the Bus. It is elicited in the cross-examination that he does not know as to whether the claimant had informed the conductor that he would be on the top of the Bus. The conductor is not examined. Evidence of RW1 clearly shows that he had knowledge that there were six passengers on the top of the Bus and he has stated in his examination-in-chief that the said six passengers travelling on the top of the bus might have borded the Bus near Mahalingapur. Therefore, it is clear that the respondent-Corporation has failed to prove the claimant was on the top of the Bus without the knowledge of the driver-RW1 and the Conductor of the Bus and it is to be held that the claimant was on the top of the Bus with the knowledge of the conductor and Driver of the Bus. It is well settled that both negligence and contributory negligence is breach of duty to take care. Negligence or actionable negligence on the part of the driver is the breach of the duty which he owes to the claimant i.e., to the persons traveling in the Bus and the other vehicle riders on the road and by committing any breach of the said duty, he would be guilty of negligence. On the other hand, the contributory negligence of a person is breach of duty to take care of himself and not a duty which he owes to the other person ie., it is breach of duty to take care of the claimant towards himself. In the present case, the material on record clearly shows that the accident occurred due to the rash and negligent driving of the Bus as is clear from the evidence of PW1, the claimant and the documents produced by him including the certified copy of the complaint - FIR which shows that a criminal case has been registered against the driver of the Bus and the material on record also shows that the claimant, who was on the top of the Bus is guilty of breach of duty to take care of himself as it is clear that there were six other passengers travelling on the top of the Bus and it is only the claimant who came in contact with an overhanging branch of the Tree and sustained injury. Having regard to the above said material on record, the Tribunal has rightly come to the conclusion that the claimant is also guilty of contributory negligence and has apportioned blame - worthiness to the extent of 60% on the part of the driver of the Bus and 40% on the part of the claimant. It is well settled that there cannot be a precedent regarding apportioned blame - worthiness and it would depend upon the facts and circumstances of each case as to the extent to which the claimant would be guilty of contributory negligence and in the present case, having regard to the above said material on record, it cannot be said that apportionment of blame -worthiness made by the Tribunal holding that the driver is guilty to the extent of 60% and the Claimant is guilty of contributory negligence to the extent of 40%, is suffering from any error or illegality having regard to the material on record. Accordingly, I hold that the said finding of the Tribunal is a justified an answer the point No. 1.
12. Point No. 2: The Tribunal has held that the claimant would have been entitled to compensation of Rs. 1,40,000/- under the following heads:
Injury, pain and suffering :
Rs.
15,000/-
Loss of eye sight :
Rs.
1,00,000/-
Attendant charges, nourishing Food and conveyance etc., :
Rs.
2,000/-
Medical Expenses :
Rs.
8,000/-
Loss of Amenities :
Rs.
15,000/-
Rs.
15,000/-
13. The claimant was aged 35 years as per Ex.P3, the summary sheet issued by the K.L.E. society's Hospital and Medical Research Centre, Nehru Nagar, Belgaum, which shows that the claimant had sustained compound depressed fracture of the frontal bone with left frontal cerebral contusion with subdural Haematoma with aspiration Pneumonia and C.T. scan revealed fracture of the frontal bone with left frontal cerebral small contusion subdurai Haematoma. The said document, Ex.P3 also shows that the claimant was inpatient from 1.11.1997 to 18.11.1997 and wherefore, having regard to the nature of injuries sustained by the claimant including the fracture of the frontal bone and left frontal cerebral contusion with subdurai Haematoma and the pain and suffering which he must have undergone during the period of treatment and having regard to the date of the accident, compensation of Rs. 15,000/- awarded by the Tribunal towards injury, pain and suffering is on a lower side and it would be just and reasonable to enhance the said compensation to Rs. 25,000/-.
14. The compensation awarded by the Tribunal towards attendant charges, conveyance and nourishing food and medical expenses at Rs. 2,000/- and Rs. 8,000/- respectively, is justified and reasonable and cannot be said to be either excessive or on a lower side as to call for interference.
15. Learned Counsel appearing for the appellant - Corporation submitted that the Tribunal was not justified in holding that the loss of eye sight suffered by the petitioner-claimant is due to the injury sustained in the accident as according to him, the evidence of PW 4 would show that he has examined the petitioner - claimant on 18.12.1998 and Ex.P3 does not show that there was any loss of eye sight and that apart from the evidence of PW4, there is no material on record to show that the loss of eye sight is due to the injury sustained in the accident. There is no merit in this contention having regard to the material on record. The evidence of the driver - RW1 shows that he learnt that the claimant had sustained injury to his eye as the overhanging branch of the tree hit his head. Further, a careful scrutiny of the evidence of PW 4 would clearly show that the loss of sight in both eyes by the claimant is due to the injury sustained by him in the accident, a rightly held by the Tribunal. PW4 has clearly stated in his evidence that the loss of eye sight is due to the head injury ie.., frontal bone injury which may be due to clotting of blood on the opticchiasm and pressing on the optic nerves, which may led to opticutrophy and it is an acquired one and once the optic nerve is damages, it is a permanent disability and has produced Ex.P33, which shows that the claimant has lost eyesight in both eyes. Nothing has been elicited in his cross-examination to disbelieve his evidence that the claimant has lost his sight in both eyes and the said loss of eye sight is due to the injury sustained in the accident and wherefore, the said finding of the Tribunal that loss of eye sight of both the eyes of the claimant is also due to the injury sustained by him in the accident, is justified and the contention of the learned counsel appearing for the appellant-Corporation that loss of eye sight was not due to injury sustained in the accident is rejected.
16. The material on record including the evidence of PW4 and the certificate issued by him, Ex.P33 would show that the petitioner - claimant was aged 35 years at the time of the accident and has lost sight in both eyes. It has come in the evidence of the claimant-PW 1 that he was a Shepherd and after the accident, he is unable to work as such and wherefore, having regard to the loss of sight in both eyes and having regard to the age of the claimant and the nature of the occupation, which he was doing prior to the accident and that he is unable to do the said work due to the said permanent physical disability sustained ie., loss of eyesight in both eyes, I hold that the compensation of Rs. 1,00,000/- awarded by the Tribunal is on a lower side. It is well settled that even in respect of persons who are not earning, a notional income of Rs. 15,000/- per annum has to be taken and the appropriate multiplier is to be adopted. Therefore, the compensation to which the claimant would be entitled to, would not be less than Rs. 2,00,000/-. In the present case, in the absence of any material to show the exact income of the claimant, it would be just and reasonable to award a lumpsum compensation or Rs. 2,00,000/- towards the loss of eye sight, disability and loss of future income due to disability suffered by the claimant in the accident. In view of the fact that separate compensation has been awarded towards loss of eye sight and loss of future income at Rs. 2,00,000/-, compensation of Rs. 15,000/- awarded by the Tribunal, towards loss of amenities is just and reasonable and cannot be said to be excessive or on a lower side as contended by parties. Accordingly, I hold that the claimant - appellant is entitled to enhancement of compensation to Rs. 2,50,000/-. However, in view of the confirmation of the finding of the Tribunal that the claimant is guilty of contributory negligence to the extent of 40%, the said compensation has to be sliced down by 40% and the claimant has to be awarded compensation of Rs. 1,50,000/- in modification of the impugned award passed by the Tribunal and accordingly, I pass the following order: -
M.F.A. No. 480071999 is dismissed. The Cross-objections No. 627 2003 is allowed in part. The compensation awarded to the claimant -respondent in MFA No. 480071999, is enhanced from Rs. 84,000/-to Rs. 1,50,000/-. The order of the Tribunal in all other respects remains unaltered. The amount deposited by the Appellant shall be transmitted to the Addl. MACT. Belgaum, for payment to the claimant in accordance with the terms of the award.