Karnataka High Court
Mutteppa Nagappa Karegar vs G.B. Attar And Ors. on 12 March, 2003
Equivalent citations: 2004ACJ1929, ILR2003KAR2877, 2003(3)KARLJ387, 2003 AIR KANT HCR 1686, 2003 A I H C 2856, 2003 AIR - KANT. H. C. R. 1686, 2003 AIHC 2856, (2004) 3 ACJ 1929, (2003) 3 KANT LJ 387, (2003) 3 KCCR 1762, (2003) 3 TAC 61, (2003) 3 ACC 149
Bench: A.M. Farooq, D.V. Shylendra Kumar
JUDGMENT
This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988, against the award dated 7-8-1995 passed in M.V.C. No. 554 of 1995 on the file of the Motor Accidents Claims Tribunal-I, Belgaum.
2. The claimant is the appellant who is aggrieved by the impugned order and award whereby his claim application came to be dismissed on the ground that it was barred by limitation and also on the ground that the claimant had failed to prove that the injuries caused to him were due to an accident that took place on 22-6-1988 at about 12.30 p.m. on the Raibag-Harugeri Road due to the rash and negligent driving of a tempo bearing Registration No. BMF 4618 owned by the first respondent; that the claimant had not proved that he had sustained injuries due to the accident involving such a vehicle and as such he was not entitled to any compensation.
3. The Tribunal had framed an additional issue as to whether the delay in filing the petition can be condoned and as to whether it can be held that the claim petition was within time and also answered this issue against the claimant and the application has been dismissed in total. It is under such circumstances, the claimant is in appeal.
4. We have heard Sri Jagadeesh Patil, learned Counsel for the appellant, M/s. Sawanth and Sawanth appearing for respondents 1 and 4, owner and driver of the vehicle, Sri S.H. Hegde Mulkhand, learned Counsel for the second respondent-Insurance Company and Sri K.V. Adhyapak and Smt. Padma S. Uttu, learned Counsel for respondent 3, the erstwhile owner of the vehicle.
5. The brief facts leading to the claim petition and this appeal are as follows.--
The averment in the claim petition is that on 22-6-1988 in or around 12.30 p.m., when the claimant was grazing his cattle near Nidgundi, a tempo bearing Registration No. BMF 4618 driven by the first respondent, who also owned the vehicle, came and dashed against him resulting in grievous injuries to the claimant. Thereafter, he had been shifted to the hospital, had to undergo treatment at hospitals at Belgaum and Miraj, but he was not able to get over the consequences of the accident as it had crippled him below the waist and as such the claim application is for compensation for injury, pain, suffering, loss of amenities etc.
6. The second respondent-Insurance Company contended that the vehicle in question was not insured with them on the date of the accident i.e., as on 22-6-1988 and as such they pleaded that they are not in any way liable to compensate the claimant or to reimburse the owner of the vehicle. The third respondent had also filed objections contending that he was the owner of the vehicle at a much earlier point of time; that the vehicle had been transferred to the first respondent and that the claim petition that had been filed after a lapse of 1 year 10 months from the date of the accident was not tenable and that there is no provision to condone the delay for a period beyond one year from the date of the accident and as such prayed for dismissal of the claim petition.
7. It is under such circumstances and in view of such pleadings, the Tribunal framed the following issues for its determination.--
"(1) Whether the petitioner proves that the alleged accident that took place on 22-6 1988 at 12.30 p.m. on Raibag-Harugeri Road was due to rash and negligent driving of tempo No. BMF 4618 by its driver, respondent 1?
(2) Whether the petitioner proves that he sustained the injuries as stated by him on account of the said accident?
(3) To what compensation the petitioner is entitled and from whom?"
An additional issue with regard to the condonation of delay was also framed. All issues having been answered in the negative, the petition came to be dismissed.
8. Sri Jagadeesh Patil, learned Counsel for the appellant submits that though the Tribunal might have been justified in dismissing the claim petition as having been barred by limitation having regard to the law that prevailed at the relevant point of time, the claimant having preferred an appeal and the appeal having remained before this Court and there being a change in law, the period of limitation does not operate against the claimant and the appeal requires to be allowed, award of the Tribunal set aside and the claim petition ordered on its merits. In this regard, the learned Counsel for the appellant has placed reliance on the decision of the Supreme Court in Dhannalal v. D.P. Vijayvargiya and Ors., . The Supreme Court had occasion to consider a situation of this nature in the case and has opined that in view of the amendment to Section 166 repealing Sub-section (3) of Section 166 which had prescribed a period of limitation earlier and with effect from 14-11-1994, such period of limitation having been done away, an application which though had been presented before the Tribunal during the period when there was such limitation, period of limitation operating on the presentation of the application, if subsequently the application itself was pending before the Tribunal or before the High Court or even the Supreme Court in any other manner, the amended law will apply to such proceedings and it is as though no limitation governs the presentation of an application and such an application cannot be dismissed on the ground of the period of limitation that had been prescribed earlier under Section 166(3) of the Motor Vehicles Act, 1988.
9. Learned Counsel for the appellant, relying upon this decision submits that as the appeal was pending when the amendment was given effect to and Section 166(3) of the Motor Vehicles Act, 1988 was repealed, applying the ratio laid down by the Supreme Court in this case, dismissing the claim petition on the ground of limitation, does not hold valid in law.
10. The claim petition, though had been mentioned to have been presented under the provisions of Section 110-A of the Motor Vehicles Act, 1939 as noticed by us earlier, it was actually presented on 2-5-1990. As on that day, the Motor Vehicles Act, 1939 had been replaced by the Motor Vehicles Act, 1988 which had come into effect from 14-10-1988. On this date and after this date, a claim application could have been presented only under the relevant provisions of the 1988 Act and an application under Section 166 is the provision under which an injured person could have sought for compensation before a Motor Accidents Claims Tribunal. In the instant case, though the claim application had mentioned that it is presented under Section 110-A of the Motor Vehicles Act, 1939, parties have proceeded on the understanding that it is an application only under Section 166 of the Motor Vehicles Act, 1988 and in fact the Tribunal had also proceeded on such premise as is reflected in the very opening para of the judgment which says that this is a petition filed under Section 166 of the Motor Vehicles Act, 1988 for compensation amount of Rs. 5,50,000/- for the injuries sustained by the petitioner in a tempo accident. In this view of the matter, the claim application is necessarily one under Section 166 of the Motor Vehicles Act, 1988 and though the period of limitation will operate inasmuch as Section 166(3) of the Act was in operation at the relevant point of time when the Tribunal rendered the judgment, when we are considering this appeal, it is not having been repealed and applying the law laid down by the Supreme Court in Dhannalal's case, supra, we have to hold that the claim petition cannot be dismissed as barred by limitation.
11. However, the Tribunal had also answered the other question as to whether the claimant proves that the injury that he has suffered was due to an accident involving the vehicle and due to the negligent driving of the driver driving the vehicle and dashing against the claimant. In this regard, learned Counsel for the appellant has drawn our attention to the pleadings of the first respondent, the driver-cum-owner of the vehicle. The defence that had been set up by the owner-cum-driver is that the claimant fell down from the top of a mango tree and at that time his vehicle was passing there and the accident occurred due to the negligence of the claimant and not because of the respondent. This makes one thing clear that the vehicle was involved in the accident. The driver-cum-owner only tried to shift the responsibility or liability by pleading that while he was careful in driving the vehicle, it was the negligence on the part of the claimant himself which had caused the accident and consequent injury. But the respondent has further pleaded that he gave an amount of Rs. 7,000/- to the petitioner for medical treatment and has pleaded that the extent of treatment that the claimant underwent including as many as nine operations is not to his knowledge and that the claim of the petitioner for having incurred an expenditure of Rs. 50,000/- towards medical expenses etc., are all false and the claimant-petitioner was put to strict proof of the same.
12. Learned Counsel for the first respondent owner-cum-driver of the vehicle has also submitted that there is absolutely no material produced by the claimant to indicate that either the vehicle was involved in the accident or that the accident occurred due to the negligent driving on the part of the driver of the vehicle nor that the injuries are due to such an accident.
13. It is no doubt true that a complaint with regard to the occurrence of the accident had not been filed; that no record is available with reference to the accident in any public office or police station, but the fact remains that the very respondent having admitted the involvement of the vehicle in the accident, nothing more is required to be proved about the accident being one involving a motor vehicle bearing No. BMF 4618.
14. It leaves us with the question as to the negligence aspect. In the absence of any other material to determine the question of negligence, the pleadings and the conduct of the parties assume importance. The first respondent, who is the driver and the owner of the vehicle, has himself pleaded that he had paid an amount of Rs. 7,000/- towards the medical treatment; that medical treatment is due to the injuries suffered by the claimant in an accident involving the motor vehicle. The very conduct indicates that there was blemish on the part of the first respondent, who sought to compensate the claimant for his negligent act by paying a sum of Rs. 7,000/- towards his medical treatment. Though the learned Counsel for the first respondent submits that paying the amount in itself will not prove any negligence on the part of the first respondent and the amount could have been paid more on compassionate ground and on humanitarian consideration, it is difficult for us to accept this submission inasmuch as the amount paid is not a token amount, but a substantial amount and it is stated in the very statement that this amount has been paid towards medical treatment. If that is so, we can reasonably and justifiably infer that the injuries to the claimant due to the accident can be attributed to the negligent driving on the part of the first respondent-owner-cum-driver of the vehicle. If that is so, there is no escape from determining the extent of compensation that the claimant is entitled to as a result of such an accident.
15. The material on record indicates that the injuries suffered by the claimant is quite extensive; that he has underwent treatment for a period of over three months at different hospitals - he was treated as an out-patient at Raibag for one day, then he was shifted to Dr. Lokur's Hospital at Miraj and had undergone operations on nine occasions and even after that he required further treatment at K.L.E. Hospital, Bel-gaum. Dr. Kamalakar Laxminarayan Acharekar, who was examined as P.W. 4, an Urologist working in J.N. Medical College, Belgium, has deposed that the claimant had been referred to their hospital by a doctor from Miraj as he was experiencing difficulty in passing urine. Due to the defect which the claimant had developed in the course of the accident and injury he had suffered in the accident, he had difficulty in passing urine. He was operated for this abnormality. In spite of the operation and the treatment, his condition could not be set right. The doctor has deposed that even after the operation, as the condition did not improve and as it was not possible to pass a tube by dilating the urethral passage, it became necessary to connect a tube directly to the bladder of the lower abdomen and had opined that the patient may require another operation. The doctor has also opined that it has resulted in a permanent disability to the injured from leading a normal life. No doubt, it was suggested in the cross-examination of this witness that the injuries of the nature which the claimant had suffered could have been caused due to horns of a buffalo which has sharp horns, but this suggestion in itself is not of much consequence inasmuch as the kind of complication that had developed to the claimant is one that he had suffered after about eight months from the date of the accident and as a result of the various complications due to the injuries that the claimant had suffered. A suggestion of this type in itself will not conclude or lead to an inference that the injury was not due to the accident involving the motor vehicle but due to the goring of a buffalo. Though reliance was sought to be placed by the learned Counsels for the respondents on this part of the deposition of the doctor, we are not inclined to accept the same so as to hold that the accident was not as a result of the vehicle running into the injured person. The doctor has opined that the disability that the claimant had suffered so far as urethra is concerned, is a permanent disability to an extent of 60%.
16. The overall perusal of the evidence on record indicates that the injury that had been suffered by the claimant was a serious injury which resulted in considerable pain and suffering requiring extensive medical attention and treatment, surgeries for eight to nine times and consequential pain and discomfiture to the injured person, In the circumstances, we are of the view that a sum of Rs. 25,000/- would be a very reasonable amount and can be safely awarded towards 'pain and suffering5 and a further sum of Rs. 25,000/- towards 'loss of amenities' having regard to the nature of injury and the disability that the claimant had suffered. We also award a sum of Rs. 25,000/- towards medical expenses though the evidence on record indicates that bills to the extent of Rs. 11,214/- have been produced, having' regard to the number of surgeries that the claimant has undergone, this amount, if at all, is on the lower side and not one based on mere surmises.
17. That leaves us with the question as to what compensation is to be determined for the disability that the claimant has suffered due to the accident. The claimant was a person in the prime of his youth, being 18 years of age at the time of the accident. The accident has left him crippled for life. We think it is reasonable to take the extent of disability at 50% and determine the future loss of earning capacity on such premise. We take the income to be notional income i.e., Rs. 15,000/- per year. The appropriate multiplier will be 18 and 50% of the future earning capacity will be Rs. 1,35,000/-.
18. Accordingly, we allow this appeal, set aside the impugned judgment and award, allow the claim petition in part and award the following amounts by way of compensation under the different heads.--
(1)Towards pain and suffering Rs. 25,000.00 (2) Towards loss of amenities Rs. 25,000.00 (3) Towards medical expenses, diet etc. Rs. 25,000.00 (4) Towards loss of future earning capacity Rs. 1,35,000.00 Rs. 2,10,000.00 We also allow interest at the rate of 8% per annum from the date of claim petition till its payment.
19. The vehicle having not been covered by any policy issued by the Insurance Company at the relevant point of time, we cannot hold that the Insurance Company is liable to reimburse any part of the compensation awarded under this judgment. The amount awarded by way of compensation in favour of appellant-claimant is to be made good by the first respondent-owner-cum-driver of the vehicle namely, tempo bearing Registration No. BMP 4618.
20. Appeal allowed in these terms.