Karnataka High Court
Syed Magdum Hussaini S/O Syed Chand Peer vs The Divisional Controller Nekrtc on 11 February, 2014
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 11TH DAY OF FEBRUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
MFA NO.31588 OF 2011 (MV)
C/W
MFA NO.30766 OF 2011 (MV)
MFA NO.31588 OF 2011
BETWEEN:
Divisional Controller,
Divisional Office,
NEKRTC, Bellary
(through its Chief Law Officer,
NEKRTC, Gulbarga).
... Appellant
(By Sri. R.V. Nadagouda, Advocate)
AND:
Syed Magdum Hussaini
S/o Syed Chand Peer,
Age: 38 years, Occ: Peshamam,
R/o Mudgal, Tq. Lingasugur.
... Respondent
(By Sri. Basavaraj R. Math, Advocate)
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This MFA is filed U/S 173(1) of M.V. Act against
the judgment and award dated 24.01.2011 passed in MVC
No.40/2009 on the file of the Sr. Civil Judge &
Member, Motor Accident Tribunal at Lingasugur, partly
allowing the claim petition and awarded compensation
of Rs.60,000/- along with interest at 6% p.a.
MFA NO.30766 OF 2011
BETWEEN:
Syed Magdum Hussaini
S/o Syed Chand Peer,
Age: 38 years, Occ: Peshamam,
R/o Mudgal, Tq. Lingasugur.
... Appellant
(By Sri. Basavaraj R. Math &
Sri. A.S. Rawoor Math, Advocates)
AND:
The Divisional Controller,
NEKRTC, Bellary Divn.
Bellary.
... Respondent
(By Sri. R.V. Nadagouda, Advocate)
This MFA is filed U/S 173(1) of M.V. Act against
the judgment and award dated 24.01.2011 passed in MVC
No.40/2009 on the file of the Motor Accident Claims
Tribunal at Lingasugur, partly allowing the claim
petition and seeking for enhancement of compensation.
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These appeals coming on for admission this day,
the Court delivered the following:
JUDGMENT
Though the matters are listed today for admission, with the consent of the learned counsel for both the parties, the same are taken up for final disposal.
2. The Corporation challenging the finding on negligence has filed MFA No.31588/2011, whereas the claimant dissatisfied with the amount of compensation awarded by the Tribunal for the injuries sustained by him in a motor vehicle accident, has filed MFA No.30766/2011.
3. The facts reveal that on 04.03.2008, the appellant in MFA No.30766/2011 - claimant was proceeding as a pillion rider on the motorcycle bearing Reg. No.KA-37 K 1694 and while they were proceeding on Mudgal-Thavargera road, the bus bearing No.KA-34 F 725 came form the opposite direction driven in a rash and negligent manner and hit the motorcycle; thereby, the rider of the motorcycle died 4 on the spot and the claimant sustained severe injuries; he was admitted in the hospital and was treated for the fracture. In the circumstances, he approached the Tribunal claiming compensation for pain, suffering, mental agony, medical expenses, loss of income etc.
4. During the enquiry, the claimant examined himself as PW.1 and a witness as PW.2. In their evidence, Exs.P1 to P8 were marked. The corporation has not laid any evidence.
5. The Tribunal, after hearing the learned counsel and on appreciation of the evidence on record, allowed the claim petition in part granting compensation of Rs.60,000/- with interest @ 6% p.a. and holding the driver of the NEKRTC bus negligent in driving the bus and causing the accident. Aggrieved by the finding on negligence, the Corporation has filed MFA No.31588/2011, whereas the claimant has filed MFA No.30766/2011 seeking enhancement of compensation.
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6. I have heard the learned counsel for both the parties.
7. Learned counsel for the Corporation submits that the accident was due to the negligence of the rider of the motorcycle and therefore, the NEKRTC cannot be held liable to pay the compensation. It is also his submission that the claim made by the legal representatives of the deceased rider of the motorcycle has been dismissed and this fact ought have been taken into consideration. On the other hand, learned counsel for the claimant supported the judgment and award of the Tribunal on the question of the negligence and seeks enhancement of compensation on the ground that the global sum of Rs.60,000/- is on the lower side.
8. So far as the question of negligence is concerned, the claimant himself is an eyewitness. In addition to, he examined PW.2 and it is in their evidence that the accident occurred due to rash and negligence driving of the bus by its driver. The FIR 6 is filed against the driver of the bus. The copy of which has been produced at Exs.P1 and P3. The charge sheet filed against the driver of the bus is produced at Ex.P2 and spot mahazar has been produced at Ex.P4. The claimant has also produced Ex.P6 - the motor vehicles inspection report. It is on the basis of this material placed on record, the Tribunal has appreciated the evidence and held the bus driver negligent in driving his vehicle.
9. It is relevant to note that the NEKRTC has not examined the driver of the bus. Non examination leads to an adverse inference, which also supports the case of the claimant. This material placed on record is sufficient to hold the bus driver negligent in the occurrence of the accident.
10. So far as the quantum of compensation is concerned, the claimant has produced medical bills at Ex.P8 for a total amount of Rs.53,897/-. The Tribunal has not accepted these bills on the ground 7 that the prescriptions have not been produced and the doctor has not been examined.
11. It is relevant to note that the appellant has suffered the fracture of left frontal bone for which the scanning is necessary and it is a serious injury; he was treated in the hospital as impatient for 20 days. Looking the expenses for scanning the medical expenses to be incurred, I think the claimant even though has not produced the receipts by examining the author, as the strict rules of Evidence Act are not applicable to these proceedings, the claimant is entitled to the medical expenses on the basis of the bills produced. Hence, a sum of Rs.54,000/- has to be awarded towards medical expenses.
12. The appellant has suffered the fracture of left frontal bone; he must have undergone some pain and therefore, it is just and proper to award Rs.20,000/- for pain, suffering and mental agony. 8
13. The healing of the fracture may take at least two months time and as the claimant was not able to discharge his duties, a sum of Rs.9,000/- is payable towards loss of income during the period of treatment.
14. He is also entitled to Rs.5,000/- towards attendant charges, food, nourishment, diet etc.
15. Thereby, the appellant in MFA No.30766/2011 - claimant is entitled to the compensation as under:
1. Towards medical expenses Rs.54,000/-
2. Towards pain and suffering Rs.20,000/-
3. Towards loss of income During the period of treatment Rs.9,000/-
4. Towards attendant and Incidental charges Rs. 5,000/-
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Total Rs.88,000/-
Thus, the claimant is entitled to a total sum of Rs.88,000/-; deducting a sum of Rs.60,000/- awarded by the Tribunal, he is entitled to an additional sum of Rs.28,000/- with interest @ 6% p.a. 9 Consequently, MFA No.31588/2011 is dismissed. MFA No.30766/2011 is allowed in part. The appellant - claimant is entitled to Rs.28,000/- with interest @ 6% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal.
The amount in deposit be transmitted to the jurisdictional Tribunal.
Sd/-
JUDGE LG