Karnataka High Court
Shri Jujjin Martin S/O John Luke vs Yusufs/O Maqdum Sab And Anr on 23 January, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.200513/2014 (MV)
BETWEEN:
Jujin Martin S/o John Luk
Aged about 32 years
R/o Kollur building
Shahapur taluk
Yadgir district
... Appellant
(By Sri Salomon Alfred, Advocate for
Sri Ganesh Naik, Advocate)
AND:
1. Yusuf S/o Maqdum Sab
Major, Occ: Business-owner of lorry
R/o H.No.2-55, Village Irani
Chittapur taluk
Gulbarga district
2. ICICI Lombard General Insurance Co.
Kothari complex, 1-45A
Court Road, Station Bazar
Near station, Gulbarga
... Respondents
(By Sri Manjunath Shetty, Advocate for R2;
Notice to R1 d/w v/o dtd 29.6.2017)
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This Miscellaneous First Appeal is filed under Section
173(1) of M.V.Act, against the Judgment and Award
dated 04.12.2013 passed in M.V.C.No.41/2010 on the
file of the Senior Civil Judge and Addl. MACT-III at
Shorapur, sitting at Shahapur, partly allowing the claim
petition and seeking enhancement of compensation.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
Appeal by the injured claimant seeking enhancement as against the judgment and award dated 04.12.2013 passed in MVC No.41/2010 by the Senior Civil Judge & Addl. MACT-III, Shorapur, sitting at Shahapur. The Tribunal has awarded compensation of Rs.2,09,159/- with 6% interest.
2. The brief facts of the case are that, on 15.06.2009 at 10:00 p.m. on Gulbarga-Shahapur main road, near Madriki Andhra camp, the claimant was proceeding along with Sikandar on motorcycle from the side of Gulbarga towards Shahapur, at that time the 3 driver of lorry No.AP-02/T-7389 which was parked without any parking indicators, as the said vehicle was punctured and the back side of lorry was covered completely with the "tad pal" and the rider of motorcycle was not in a position to view the still lorry due to focus lights of opposite side vehicles, and hence the motorcycle was dashed to the backside of parked lorry and the said accident was taken place. Complaint was registered in Cr.No.47/2009 in the B'Gudi police station. The claimant submits that he took treatment as an inpatient in Dr.Bhaskar Rao hospital from 16.06.2009 to 26.06.2009 and from 27.06.2009 to 04.07.2009 in KLE hospital and from 04.07.2009 to 15.09.2009 in Dr.Bhaskar Rao hospital and spent Rs.10 lakh towards treatment. It is further claimed that, he was aged 29 years and was working at ITI Electronics Phoenix Academy as trainer and owner and was earning Rs.12,600/- per month. It is submitted that, the said accident had taken place due to negligence of 4 respondent No.1 driver as he had parked the lorry negligently on the road without putting on the indicators and the vehicle. The lorry of respondent No.1 was insured with respondent No.2 at the time of accident. After issuance of notice to respondents the owner and the driver of the lorry and considering the case of the insurer, the Tribunal has awarded compensation of Rs.4,18,318/-. The liability is fastened on the insurer and the driver in the ratio of 50% and 50% negligence is fastened on the rider of the two wheeler. So out of compensation of Rs.4,18,318/-, respondent Nos.1 and 2 are jointly liable to pay the compensation of Rs.2,09,159/- with interest at the rate of 6% p.a.
3. The learned counsel for the appellant contends that, the Tribunal has committed an error in fastening negligence on the rider of the two wheeler to the extent of 50%. Learned counsel further submitted 5 that as police records reveals that the accident took place at night hours and lorry was parked on the public road without putting on parking indicators, and the backside of lorry was covered completely with the "tad pal" and the rider of motorcycle was not in a position to view the standing vehicle due to focus lights of opposite side vehicles, and hence dashed to the backside of parked lorry and caused the accident. Therefore, 100% negligence should have been fastened on the lorry. In support of the same, learned counsel referred the judgment in MFA No.829/2012 c/w MFA Crob 146/2012, in which by referring the judgment in the case of Kumari Jyothi & Others v. Mohd. Usman Ali & Others reported in ILR 2002 KAR 893 wherein it has been held that Section 122 of the Motor Vehicles Act, 1988 provides that no person in charge of a motor vehicle shall cause or allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such 6 circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers; Hence he submits that in this case lorry was parked on the road without any indicators, hence liability is to be fastened on the lorry and not on the rider of the two wheeler which dashed into such vehicle. To substantiate the same, learned counsel referred the panchanama-Ex.P3 and spot photo - Ex.P7 and evidence of the injured PW.1- rider. As per the spot panchanama and photograph which reveal that without any indications the vehicle was parked on the road itself and was also covered with "tad pal", itself demonstrates that there was no indicator left to alert the road users. From the photograph-Ex.P7 learned counsel submits that two wheeler dashed to the hind side of the lorry. Under these circumstances, learned counsel submits negligence should have been fastened on the lorry in its entirety.
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4. Secondly, with regard to the disability, learned counsel referred the evidence of PW.3 who had deposed that injured has suffered disability at 40 to 48% and the Tribunal has assessed the disability which is contrary to the fact. Though the doctor has assessed the disability to the whole body and not limb disability, when such is the evidence, the Tribunal should have assessed disability to the whole body at 40 to 48%, but without assigning any reasons the Tribunal has assessed the disability only at 15%, but, based on the injury it ought to have taken 100%. To substantiate the same, learned counsel referred Exs.P-175 and 176 copy of National Trade Certificate and true copy of PUC marks card, Ex.P-189 PAN card, Ex.P-191 Income Tax Returns and submits that the injured was owner of ITI Electronic Phoenix Academy at Shahapur. He has also produced Income Tax returns for the year 2008. Claimant himself is a trainer and owner of the said Academy and permission given by the Government to 8 run the said college, was also produced. He was earning monthly Rs.12,600/- and the said income has not been assessed by the Tribunal for calculation of compensation.
5. PW.3 who is treated doctor has deposed that the injured has sustained the following injuries.
1) Knee joint (Range of Movement): O+flexion (normal range 0 to 180) extension lag, stipness of knee+
2) Quadriceps weakness of grade II +/V
3) Rt. Ankle joint range of movement limited terminally and painfully
4) Rt. Hip Range of movement 200 abduction +(Normal Range 0-45 abduction 00 degree)
5) Motor Power Rt hip, grade II/v Adductor Abductor II rotators
6) Stability component is as per motor power:
unstable knee and ankle joint
7) Pt has epileptics fits very frequently 9
8) CNS Orientation is very poor, balancing of the body very poor, co-ordination is also very poor
9) It elbow range of movement limited and painful X ray are taken showing discharging sinus form RT thigh.
6. PW.3 has further deposed that it is not possible for the appellant to continue as tutor, since he had suffered head injury and due to injury he cannot stand for more than 10-15 minutes and he cannot perform his duty. Hence, learned counsel submitted that in view of the evidence of PW.3 the appellant has to undergo further operation for replacement of patela joint which requires huge amount. For which he prays that suitable compensation be awarded.
7. The learned counsel for the respondent- insurance company supports the judgment and award of the Tribunal. The compensation awarded on the basis of evidence of the medical reports and the Tribunal fixed the negligence at 50%, since claimant 10 had not impleaded rider of the two wheeler who is proper and necessary party and Ex.P1 made by the appellant itself shows that the complainant himself has stated that lorry was parked on the extreme left side of the road, shows that rider himself has committed an error without examining the rules and dashed against the lorry. Ex.R-15 injured himself has admitted his negligence in causing the accident.
8. By referring the judgment of Hon'ble Supreme Court reported in 2009 ACJ 2003 in the case of Raj Rani and others v. Oriental Insurance Company Limited and others, wherein at para 16 by referring the judgment of the Hon'ble Supreme Court reported in 2002 ACJ 1720 (SC) in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, it is observed that in cases which are similar in nature 50%-50% negligence is justifiable. It is his submission that in the instant case the appellant 11 also contributed to the accident since he has not taken proper care while riding and he must have been rash and negligent in driving, otherwise this accident could not have happened. With regard to income, learned counsel submits that the claimant has not established the income. Merely running an institution claiming that he himself he was a tutor, itself is not a ground to assess the income as claimed. With regard to income tax returns, he submitted that it was filed in the year 2008 and after deducting the income it comes to less than Rs.12,600/-. Under these circumstances, the tribunal assessed the income on a proper perspective.
9. Heard learned counsel for the respective parties.
10. The contention was taken for the purpose of registering the FIR, the complaint or statement said to have been made by the appellant is found from the record which is dated 16.06.2009. The statement of the 12 appellant has been recorded. The contents of the statement is that vehicle was parked extremely left side of the road and the appellant was a pillion rider and the rider of the vehicle dashed against the parked vehicle. This statement was recorded on 16.06.2009 at 3.30 a.m. whereas the accident taken place at 10.00 p.m. on 15.06.2009. The nature of injuries suffered as is disclosed from the medical reports and also evidence of the doctor is such that he was not in a position to make a statement on 15.06.2009. The date referred in the complaint it bears two dates one is 16.06.2009 at the top right side and next below the signature another date is referred 20.06.2009. These two dates altogether a different date. If the statement was recorded at 3.30 a.m. on 16.06.2009 he had gained consciousness. Under these circumstances, the statement that has been taken cannot be given much importance. Though the complainant contends that the parked vehicle was on the left side of the vehicle, but this may not be 13 accurate entry recorded in the statement. Spot panchanama Ex.P3 further reveals that the rider of the vehicle along with pillion rider came in rash and negligent manner and caused the accident against the stationed vehicle. Panchanama and complaint do not give a proper picture about the place of accident as to whether the vehicle was stationed or parked on the road or by the left side of the road. But this has been verified with the help of photograph which is marked at Ex.P7 from which it is seen that the vehicle was on the tar road not exactly on the middle of the road but on left side of the road. It further shows that the backside of the lorry and indicator lights were covered with the "tad pal" with which it is observed that vehicle was not on left side of the road as it is stated in the complaint, and further in the panchanama, it is on the left side of the main road itself. When it is seen from Ex.P7 that the vehicle was parked on the public road might be for the reason that its tyre was punctured. When such is the 14 case, Section 122 of the M.V.Act makes it mandatory that the vehicle should leave reflectors to alert other road users. There is no such statement or evidence available on record. Under these circumstances, it is to be held that vehicle was stationed since the tyre was punctured it was parked on the road itself; and secondly "tad pal" of the vehicle covered the indicators of the lorry. Hence there was no indicator to alert the road user, which resulted in accident.
11. This Court held in the judgment reported in ILR 2002 Kar 893 in the case of Kumari Jyothi & Others v. Mohd. Usman Ali and Others at para 13 thus;
13. Nothing has been elicited in their cross- examination to show that lorry had parked with any sign or indicator. Neither the driver nor the cleaner of the lorry was examined to say that any sign or indication was provided in regard to the parked vehicle. Section 122 of 15 the Motor Vehicles Act, 1988 provides that no person in charge of a motor vehicle shall cause or allow the vehicle to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. In similar circumstances, the High Court of Gujarat in PREMLATA NILAMCHAND SHARMA- Vs-HIRABHAI RANCHHODBHAI PATEL, the High Court of PUSHPA RANI CHOPRA-Vs-ANOKHA SINGH have held that where the place was dark and where the vehicle was parked without any sign or indication to warn other Road users, the negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle."
12. The Tribunal fixed 50% negligence on the rider of the vehicle for non joinder of necessary parties that the claimants should have made the rider or owner of the two wheeler for the purpose of assessing its 16 contribution in the accident. Hence, the Tribunal arrived at a conclusion that non joinder of necessary parties is the reason for negligence, and accordingly 50% negligence has been fastened on the rider. Non joinder of parties could have been a ground to fix the negligence on the part of the rider. But Court or Tribunal should have directed the party to implead such owner rider of the party and secondly Motor Vehicle Tribunal is summary proceedings in nature, and not something like regular proceedings similar to civil cases. With available records negligence has fixed. From Ex.P7 panchanama and statement, and nature of injuries suffered, it discloses that the vehicle was parked on the road. There was no indicator to alert other users of the road. The rider of the vehicle was proceeding since there was no light or indicators, have proceeded straight resulting in accident. The appellant is pillion rider, he also suffered grievous injuries. Under these 17 circumstances, I hold that negligence is to be fastened in its entirety on the offending vehicle-lorry.
13. Next question is with regard to the disability the evidence of PW3 and disability certificate Ex.P169 disclose that injuries suffered constitute to the extent of 42 to 48% disability to the whole body. In this regard, it is to be observed that on the basis of evidence of the doctor and disability certificate, the Tribunal has to assess the functional disability. On the basis of the evidence of the doctor and certificate issued there may be instances where the doctor might have deposed exorbitant disability. The disability suffered as per the evidence of PW3 and disability certificate Ex.P169 and nature of injuries suffered and treatment taken since 2009 even till today, it shows that he must have suffered grievous injuries. Now, in addition to disability, on the basis of the disability certificate and evidence of PW3, his disability is to be assessed with 18 reference to his functioning. The documents produced by the claimant disclose that he was running ITI Electronics Phoenix Academy as trainer and owner and he also filed Income Tax returns for the year 2008-2009. It shows that he was earning some good amount. In order to discharge the duty as a trainer or tutor, he has to stand and explain to the students; and he has to do the work as a teacher. But nature of injuries and disability as per the evidence of PW3 shows that he cannot stand and even by using walker he can stand only for 10 to 15 minutes. Further, the doctor has deposed that he cannot perform his duty as he used to prior to accident, and it is 100% disability. In the light of the above evidence of the doctor and disability certificate and his occupation, I hold that disability assessed at 15% is on the lower side, and hence functional disability is assessed at 50%. The doctor has further deposed that he has to undergo further surgery for removal of patela.
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14. The learned counsel for the appellant submits that leg which the claimant has suffered fracture is turning blackish and as deposed by the doctor he may have to ampute the leg also. Even he cannot walk for more than 10 to 15 minutes and he has discontinued his job as a trainer. Considering his submission and also evidence and material on records, it is sufficient to arrive at a conclusion that he was earning Rs.12,600/- and same income is to be assessed for the purpose of calculation.
15. Doctor deposed that injured has to undergo further treatment, but he has not mentioned as to medical expenditure to be incurred in future and he has produced medical bill -Ex.P88, Ex.P122 to Ex.P123, Ex.P124 to Ex.P130 -hospital bills, and Ex.P131 to Ex.P168 - medical bills, Ex.P186 to Ex.P188 - 3 medical bills, Ex.P190 - medical bill, Ex.P183 to Ex.P185 - 3 X- Ray films, Ex.P181 - C.T.scan report, Ex.P180 - X-ray 20 report, Ex.P177 to Ex.P179 - Diagnostic report, Ex.P38 to Ex.P54 - Laxmi medical bills, Ex.P55 to Ex.P78 - medical bills, Ex.P34 - Hosmat cash receipt, Ex.P35 - Hubli Scan center receipt, Ex.P36 - High tech Diagnostics receipt, Ex.P34 Hosmat cash bill Bangalore, Ex.P33 - Baghavan Mahaveer Hospital bills, Ex.P31 & Ex.P32 - K.S. Orthopedic receipt, Ex.P30 R.V.Diagnostics receipt, Ex.P27 and Ex.P28 - Diagnostics report, Ex.P25 & Ex.P26 - KLE ICU receipt, Ex.P23 & Ex.P24 - KLE Hospital settlement receipts, Ex.P21 & Ex.P22 - KLE Cash receipts, Ex.P20 - Inpatient cash receipt, Ex.P19 - Advance receipt, Ex.P15 to Ex.P18 - Blood bank receipts, Ex.P14 - HSE scan report, Ex.P13 - Surgical receipt, Ex.P10 - Scanning receipt, Ex.P8 & Ex.P9 - Pharmacy receipt. These are all exhibits which are available with LCR. It shows that he has suffered grievous injuries and he has taken treatment almost about a decade back. He is present before the Court with walker and it is seen that 21 he has difficulty to even stand, and taking note of these things, I have examined the medical bills. It is awarded Rs.1,65,718/- which is lower in side. The total medical bills, if calculated, it comes to Rs.4,96,000/-. With regard to future medical expenses, as deposed by the PW3 doctor, that the injured has to undergo further treatment and surgery and the chances of amputating the leg cannot be ruled out. In this connection it is appropriate to direct the appellant to inform the respondent insurance about the future medical treatment or surgery. For the said purpose, the appellant has to make a written intimation to the respondent along with report of the doctor and also he has to furnish the hospital or centre were he takes treatment or surgery. On furnishing the particulars, the respondent - insurance is directed to attend or to pay the actual bill directly to the hospital. Insurance official may be directed to approach or contact hospital authorities for the purpose of settling the bill. 22
16. To calculate the income at Rs.12,600/-, I refer Ex.P175 the Provisional National trade certificate which permits the petitioner to run the said institution and Ex.P191- Income tax return, Ex.P189 - PAN card which are some evidence to assess the notional income for the said period. Ex.P175 - provisional national trade certificate and PAN card and Income Tax return. Ex.P175, is certificate issued in favour of petitioner that he has successfully undergone training. With the help of certificate, he claims that he was running an institution by name Phoenix English Academy and bill book is produced from 29.11.2007 up to 31.03.2008. In the income tax return also it has been referred as the source of income as arisen out of the institution which he is running. These all are sufficient materials to arrive at conclusion that the claimant was earning about Rs.12,600/- per month. For the purpose of compensation of loss of disability out of Rs.12,600/- if 50% is deducted it comes to Rs.6,300/- . Accordingly, 23 the calculation would be Rs.6,300/- x 12 x 16 = Rs.12,09,600/-. The same is awarded under the loss of future income. Towards pain and suffering Tribunal awarded Rs.50,000/- which is lower in side; hence, another Rs.50,000/- is awarded under the said head. Towards loss of amenities another Rs.25,000/- is awarded. Towards attendant charges, considering the total number of days the claimant has undergone treatment as inpatient and for about 9 years hitherto, another amount of Rs.25,000/- is awarded under the said head. Towards medical bills Rs.4,96,000/- is awarded. Towards food and nourishment, conveyance, transportation all put together Rs.25,000/- is awarded. In all the enhanced compensation is Rs.14,87,282/- which shall carry 6% interest.
17. In case it is found that he has to loose his leg by amputation then it may have to consider 100% disability in that view of the matter liberty reserved to 24 make necessary application to the insurance company on such an application the same insurance company is directed to pass an appropriate order.
Appeal is accordingly partly allowed.
Sd/-
JUDGE sdu/smp