Karnataka High Court
Rajanna Shetty @ Raja Shetty vs K Srinivasa Murthy on 4 February, 2013
Author: N.K. Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY, 2013
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE V. SURI APPA RAO
M.F.A.No. 5832 OF 2010 (MV)
Between:
Rajanna Shetty @ Raja Shetty,
S/o Lakshmaiah Shetty,
Aged about 49 years,
R/o Huvinabeedi,
Pandavapura Town,
Mandya District. ...Appellant
(By Sri V.N.Madhava Reddy, Advocate)
And :
1. K.Srinivasa Murthy,
S/o late Krishnappa,
R/o No.77/30, Basaveshwara Krupa,
3rd Cross, Hennur Main Road,
Kacharakanahalli,
Keshawara Nagara,
Bangalore - 560014.
Owner of Toyata Qualis KA-03-B5545.
2. The Manager,
Oriental Insurance Co. Ltd.,
401/2, F-1, Swastik Mahnandi Arcade,
S.C.Road, Opp.Sheshadripuram Police Station,
Bangalore - 560020.
Pin code 23460196/23442430
Policy No.2007/1251
2
Policy No.421902/2007/1251,
From 11.06.2006 to 10.06.2007. ...Respondents
(By Sri C.R.Ravishankar, Advocate for R2
R1 notice dispensed with v/o dt.12.6.12)
*******
This MFA is filed U/S 173(1) of MV Act against the
judgment and award dated: 22.03.2010 passed in MVC No.
571/2009 (Old No.1013/2006) on the file of Civil Judge
(Sr.Dn.) and JMFC, Pandavapura, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This M.F.A. coming on for Hearing this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This appeal is by the claimant being aggrieved by the impugned Judgment and Award dated 22nd March 2010 passed in M.V.C. No. 571/2009 (Old M.V.C. No.1013/2006) on the file of the learned Civil Judge (Sr.Dvn.) and J.M.F.C. and M.A.C.T., Pandavapura, (hereinafter referred to as 'Tribunal' for short).
2. By its impugned judgment and award, the Tribunal has awarded a sum of `3,00,167.38 with interest at 6% p.a., from the date of petition till 3 realization fixing the contributory negligence on the appellant at 20%. The claimant has presented this appeal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and fixing 20% contributory negligence on the claimant is liable to be set aside.
3. In brief, the facts leading to the case on hand are:
The appellant is claiming that he was aged about 45 years at the time of the accident, hale and healthy prior to the accident and was an agriculturist and kerosene dealer and getting income of Rs.12,000/- per month. That on 29.06.2006 at about 8.30 p.m. when he was going on his Scooter bearing No. MEJ 8112 near Kirangur Gate towards Srirangapatna near Kirangur Circle on Mysore-Bangalore Road, a Toyota Qualis Car bearing No. KA-03/B-5545 came from Mysore side in high speed, rash and negligent manner and dashed against the Scooter of the appellant. Due to the impact, the appellant and pillion rider fell down and sustained the following grievous injuries :4
1) Lacerated wound on the right eyebrow;
2) Fracture of both bones of right leg with abrasion;
3) Abrasion on right forearm;
4) Fracture of right femur;
5) Pain and Tenderness over left arm and fracture of left hemures.
on account of the said injuries, he took treatment in the Hospital for a period of two and half months and underwent few surgeries and spent reasonable amount towards medical expenses, conveyance, nourishing food and attendant charges. On medical and clinical examination of the appellant, PW-2 - Doctor assessed disability to the whole body and he is not able to do his business of kerosene dealer and agricultural operation due to discomfort and face frustration throughout his life. Taking all these aspects into consideration, he filed claim petition before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. The Tribunal in turn after considering the oral 5 and documentary evidence, has allowed the said claim petition in part and awarded a sum `3,00,167.38 with interest at 6% p.a., from the date of petition till realisation fixing the contributory negligence at 20% on the part of the appellant and 80% on the part of the Driver of Toyota Qualis Car. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation and seeking setting aside the contributory negligence fastened on the appellant.
4. The submission of the learned Counsel appearing for the appellant at the outset is that the Tribunal has committed grave error and without any justification has taken the income of the appellant at Rs.125/- per day which comes to Rs.3,750/- p.m. Further, he submitted that the appellant is an agriculturist and kerosene dealer and also running a provision store and in support of it the Tribunal without calling the person authorized from the competent authority that the appellant was kerosene dealer. The appellant met with 6 an accident, undergone treatment for a period of two and half months and undergone three surgeries. Without any justification and without followed the reasons and the contents of FIR, Charge Sheet, IMV Report and sketch, the Tribunal has fastened the contributory negligence at 20% on the part of the appellant and the same cannot be sustained and liable to be set aside. Further, it is submitted that the Tribunal failed to notice that the appellant had sustained injuries, pain and suffering, loss of income during the laid up period, loss of amenities, discomfort, unhappiness, loss of future income and the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing the compensation.
5. Per contra, the learned Counsel appearing for the 2nd respondent - insurer inter-alia substantiated stating that the impugned Judgment and Award is passed after due consideration of oral and documentary evidence and the year of accident, age and avocation of the appellant and justified in taking the income of the 7 appellant and fastening the contributory negligence of 20% on the appellant for the reason that he being a rider of two wheeler drove his scooter against the traffic rules and regulations and he was going on Bangalore - Mysore Road which is a State High Way and the appellant entered into the State High Way from Kirangur side and due to his negligence he is also responsible for the accident. Therefore, the Tribunal has fastened 20% contributory negligence on the appellant and the same does not call for interference by this Court.
6. After careful consideration of the submissions made by the learned Counsel appearing for both parties and after evaluation of the records available on record and also after perusal of the impugned Judgment and Award passed by the Tribunal, it emerges that, it is not in dispute that due to the accident the appellant sustained injuries. Further, it is not in dispute that the appellant was aged about 45 years at the time of accident, an agriculturist and a kerosene dealer and 8 running a Provision Stores in the village and distributing provisions to the card holders in the village and he was hale and healthy prior to the accident. On account of the injuries sustained, he has taken treatment as inpatient for more than two and half months in the Hospital and he had spent considerable amount towards conveyance, nourishing food, attendant charges and also undergone few surgeries and the Doctor has assessed 42% disability to whole body. The Tribunal is justified in assessing the disability at 30% and the same is acceptable. However, the Tribunal has erred in assessing the income of the appellant at Rs.125/- per day. The same is on the lower side. Having regard to the age of the appellant, year of accident, we re-assess the income of the appellant at Rs.4,500/- p.m. and he might have spent reasonable amount towards conveyance, nourishing food. We presume that he would have taken bed rest and follow- up treatment atleast for six months due to the injuries and the disability, and the disability, discomfort and 9 unhappiness is to be suffered by him throughout his life. It is difficult for him to do the work as he was doing earlier as agriculturist, distributing kerosene to card holders. The appellant was aged about 45 years at the time of accident and the appropriate multiplier is 14.
7. Accordingly, we re-determine the compensation at Rs.50,000/- towards injury, pain and suffering as against Rs.40,000/-, Rs.27,000/- towards loss of income during the treatment period at the rate of Rs.4,500/- p.m., Rs.30,000/- towards loss of amenities as against Rs.15,000/-, Rs.2,26,800/- (i.e. Rs.4,500 x 12 x 14 x 30%) towards loss of future income due to disability as against Rs.1,89,000/-. The Tribunal is justified by awarding a sum of Rs.78,709/- towards medical bills and Rs.30,000/- towards conveyance, nourishing food and attendant charges and the same does not call for interference by this Court. 10
8. Accordingly, the appellant/claimant is entitled to the compensation under different heads and the break- up is as follows :
Towards injury, pain and sufferings ` 50,000/-
Towards medical expenses ` 78,709/-
Towards conveyance, nourishing food ` 30,000/-
and attendant charges
Towards loss of income during the ` 27,000/-
period of treatment
Towards loss of amenities, ` 30,000/-
discomfort, unhappiness
Towards future income ` 2,26,800/-
Total ` 4,42,509/-
9. Further, so far as the submission of the learned Counsel appearing for the appellant regarding contributory negligence is fixed at 20% is concerned, it could be seen that as per the documentary evidence, such as mahazar, charge sheet, etc., the accident has occurred due to rash and negligent driving of the driver of Qualis Car and the said charge sheet has become conclusive proof as the same is not questioned and that the Tribunal has erred in holding that the accident occurred due to the rash and negligent driving on the 11 part of the rider of the Scooter and the driver of the Toyota Qualis Car. But it is crystal clear from the sketch and averments of the FIR that the accident occurred due to rash and negligent driving of the driver of Toyota Qualis car and not due to rash negligent driving of the rider of the scooter. The Tribunal without assigning any valid reason and without discussing the material documents available on record has fixed 20% negligence on the part of the rider of the scooter and the reasons assigned in para 24 cannot be sustained.
Therefore, after re-consideration of the oral and documentary evidence available on record, we hold that the accident occurred due to rash and negligent driving by the driver of the Toyota Qualis Car and not due to the negligent riding on the part of the rider of the scooter and 20% contributory negligence fixed by the Tribunal is liable to be set aside and the entire liability is fastened on the driver of the Toyota Qualis Car bearing No. KA-03/B-5545 and even the Insurer has failed to examine the Driver of the Toyota Qualis Car. 12
10. Having regard to the facts and circumstances of the case referred above, the instant appeal filed by the claimant is allowed. The impugned judgment and award dated 22nd March 2010 passed by the Tribunal in MVC No.571/2009 on the file of Civil Judge (Sr.Dvn.) and J.M.F.C. and M.A.C.T. at Pandavapura is hereby modified awarding a sum of Rs.4,42,509/- as against Rs.3,75,209.23. Since we have set aside 20% contributory negligence, there will be enhancement of Rs.1,42,341.62 (rounded off to Rs.1,42,342/-) with interest at 6% p.a. from the date of petition till the date of realisation. 20% contributory negligence fixed by the Tribunal on the rider of the motorcycle is hereby set aside and the same is fastened on the driver of the Qualis Car.
The 2nd respondent - Insurer is directed to deposit the entire compensation with interest within three weeks from the date of receipt of copy of this Judgment.
Out of the enhanced compensation of Rs.1,42,342/-, a sum of Rs.1,00,000/- shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the 13 appellant for a period of ten years and renewable for another ten years, with liberty to him to withdraw the interest accrued on it.
The remaining enhanced compensation of Rs.42,342/- with proportionate interest shall be released in favour of the appellant, immediately on deposit by the 2nd respondent - Insurer.
Draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE Rbv*