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Karnataka High Court · body

2011 DIGILAW 763 (KAR)

H. B. Channappa v. Nazarrulla Khan

2011-08-01

K.BHAKTHAVATSALA

body2011
Judgment :- 1. Appeal in MFA Nos.4071/2009 (arising out of MVC No.1338/2006) and 4072/2009 (arising out of MVC No.1277/2006) are filed by one and the same person viz., owner cum rider of the motor cycle challenging the contributory negligence fixed on him as well as on the quantum of compensation. 2. Appeal in MFA No.1549/2009 is filed by the claimant/pillion rider (in the motor cycle bearing registration No.KA-14/Q-7547) and it is directed against the judgment and award dated 16.10.2008 made in MVC No.1297/2006 for enhancement of compensation. 3. Heard common arguments. 4. Learned Counsel appearing for the owner cum rider of the motor cycle, Sri P.A. Kulkarni, submits that the Tribunal erred in fixing contributory negligence to the extent of 75% on the owner cum rider of the motor cycle on the basis of false criminal case registered against him. He submits that Criminal Court has acquitted the rider and inspite of producing the judgment, the Tribunal, instead of holding that the accident occurred solely due to rash and negligent driving of the Car by its driver, held 75% contributory negligence on the part of the rider of the motor cycle. He also submits that the compensation awarded in favour of the claimant/ rider is inadequate. He prays for setting aside the finding on the point of negligence and holding that accident occurred due to rash and negligent driving of the Car by its driver and enhance the compensation. 5. Learned Counsel appearing for the pillion rider/claimant submits that the implants still exist and for removal of implants the claimant has to undergo one more surgery, but no compensation is awarded towards future medical expenses. He prays for enhancement of compensation. 6. Learned Counsel appearing for the respondents viz., owner and driver of the Car and Insurance Company of the two wheeler and Car submits that the Tribunal has rightly fixed contributory negligence on the part of the rider of the motor cycle at 75% and awarded adequate compensation in both the cases and prays for dismissal of all the three Appeals. 7. In view of the arguments addressed by the learned Counsels for the parties, I formulate the following points for consideration: (i) Whether the Tribunal is justified in fixing contributory negligence to the extent of 75% on the rider of the motor cycle? 7. In view of the arguments addressed by the learned Counsels for the parties, I formulate the following points for consideration: (i) Whether the Tribunal is justified in fixing contributory negligence to the extent of 75% on the rider of the motor cycle? (ii) Whether the Tribunal has awarded adequate compensation in favour of the claimant in MVC No 1338/2006 viz, the rider cum owner of the motor cycle in question? and (iii) Whether the Tribunal has awarded adequate compensation in favour of the claimant in MVC No.1297/2006 viz., the pillion rider of the motor cycle? Point No. (i) In the claim petition in MVC No.1338/2006, the claimant/owner cum rider of the motor cycle has got himself examined as P.W1 besides examining the pillion rider viz., Karjagi as P.W2 and got marked Exs.P1 to P15. The respondents have not adduced rebuttal evidence. Copy of the claim petition filed by the pillion rider-G V Karjagi and copy of insurance policy were marked as Exs.R1 and R2. The Tribunal should have clubbed both the claim petitions and recorded common evidence and passed a common judgment in both the cases. The claim petition filed by the owner cum rider of the motor cycle was partly allowed on 31.5.2008. The claim petition filed by the pillion rider of the motor cycle was partly allowed on 16.10.2008. In the claim petition filed by the pillion rider of the motor cycle, he has got himself examined as P.W1 and Medical Officer as P.W2 and got marked Exs.P1 to P11. In rebuttal, the owner cum rider of the motor cycle was examined as D.W1. Admittedly, the rider cum owner of the two wheeler has been acquitted and copy of the judgment has been marked as Ex.P14. Rough sketch is at Ex.P6 in the criminal case. It goes to show that the accident occurred on the State Highway and the rider of the motor cycle was negotiating from the south to north; whereas the car was coming from the west to east. There was a divider. At the time of accident there was 11 feet distance on the left side of the Car. Though the driver of the Car was made as a party, he did not enter the witness box to explain about the manner of accident. There was a divider. At the time of accident there was 11 feet distance on the left side of the Car. Though the driver of the Car was made as a party, he did not enter the witness box to explain about the manner of accident. When the two wheeler was crossing the road at the junction from one side to the other, the driver of the car could have avoided the accident. But, the driver of the Car has left 11 feet distance on the left side of the road and came on the right side and dashed against the motor cycle, which was neglitating at the junction. In other words, the Car was passing on the road which had width of 15 feet. The accident occurred within 5 feet from the median. It is contended that the rider of the motor cycle wanted to lodge a complaint against the Car driver, but the Police, having booked a case at the instance of occupant of the Car, refused to receive his complaint. The rider of the motor cycle has been acquitted. Neither the owner nor the driver of the Car in question stepped into the witness box to explain about the manner of accident and deny the case of the claimant. Therefore, it cannot be said that there was any contributory negligence on the part of the rider of the motor cycle. The evidence of the claimants supports with the evidence of pillion rider. Inspite of producing judgment of acquittal, the Tribunal erred in fixing contributory negligence to the extent of 75% on the rider of the motor cycle. In my view, the oral and documentary evidence placed on record show that the accident occurred solely due to rash and negligent driving of the car and not by the rider of the motor cycle. Accordingly, point No.1 is answered. Point No.(ii) As per Ex.P4/wound certificate issued by Nanjappa Hospital Shimoga, the claimant sustained in all 3 injuries. The Medical Officer has opined that injury No. 1 is grievous in nature. Injury No.3 was suspended of linear fracture of 6th and 7th ribs posteriorly on the left side. The Medical Officer has opined that injury Nos.2 and 3 are simple in nature. The claimant was treated as impatient for two days. The claimant has produced medical bills in all amounting to Rs.2,568.93 ps.(vide Ex.P9 to P13). Injury No.3 was suspended of linear fracture of 6th and 7th ribs posteriorly on the left side. The Medical Officer has opined that injury Nos.2 and 3 are simple in nature. The claimant was treated as impatient for two days. The claimant has produced medical bills in all amounting to Rs.2,568.93 ps.(vide Ex.P9 to P13). Exs.P9,P10 and P11 are the receipts for a sum of Rs 75/- Rs 600/- and Rs.1,6401/-, respectively. Ex.P11 is a receipt issued by Nanjappa Hospital, Shimoga, towards Hospital charges, but the claimant has not produced the final bill. The claimant, being a Revenue Inspector is a Government servant. He is entitled for reimbursement of medical expenses. In my view, the claimant might have produced the final bill for making a medical claim. Therefore, Ex.P11 cannot be accepted in the absence of final bill. Exs.P12 and P13 are the medical bills issued by Amruth Pharma bills in all amounting to Rs.253.93 ps. Taking into consideration the claimant sustained one grievous injury and apart from two simple injuries, it is a fit case to award global compensation of Rs.50,000/-. Thus the claimant is entitled for additional compensation of (Rs.50,000 Rs32,569/-) Rs17,431/- and the entire compensation shall be paid by respondent No.3/New India Assurance Company Limited, insurer of the Car in question. Accordingly, point No.(ii) is answered partly in favour of the appellant/claimant. Point No.(iii) This claimant (pillion rider in the motor cycle) is also a Government servant. As per Ex.P4/wound certificate issued by Nanjappa Hospital, Shimoga, the claimant/pillion rider, sustained in all six injuries. The Medical Officer has opined that injury Nos. 1 to 4 are simple in nature and injury Nos.5 and 6 are grievous in nature. Injury No.5 is fracture of lateral malleolus and injury No.6 is fracture of lower 1/3rd of shaft of both bones of left leg. The claimant has produced medical bills in all amounting to Rs.34,747.48 ps. The Tribunal has awarded compensation in favour of the claimant as under: In the medical bills, the claimant has included advance amounts of Rs.12,000/-, Rs.4,000/- and Rs.1,000/-, which comes to Rs.17,000/-. He has not produced the final bill. He is also entitled for reimbursement of medical expenses as a Government servant, but the Tribunal has awarded a sum of Rs.20,505/- towards medical expenses. The Tribunal should have awarded only a sum of Rs.17,747/- towards medical expenses. The claimant continues to be a Government servant. He has not produced the final bill. He is also entitled for reimbursement of medical expenses as a Government servant, but the Tribunal has awarded a sum of Rs.20,505/- towards medical expenses. The Tribunal should have awarded only a sum of Rs.17,747/- towards medical expenses. The claimant continues to be a Government servant. There is no loss of future earning. Gross salary of the claimant is Rs.11, 602/-. If a sum of Rs.150/- is deducted towards professional tax - net salary comes on Rs.11,452/-. As per Ex.P.104, he was on leave from 15.10.2003 to 31.1.2004. Therefore, the Tribunal is justified in awarding loss of earned leave for a period of 3½ months. Since the implants still exist at the fractured sight. In my view, the claimant is entitled for compensation as under: 8. In the result - MFA No.4072/2009 & MFA No.1549/2009 are party allowed. Consequently claim Petition in MVC No.1297/2006 is partly allowed holding that the claimant is entitled for compensation of Rs.1 -62 -829/- holding that Car owner, driver & insurer are jointly & severally liable to pay compensation. The claim petition as against owner & insurer of the motor cycle is dismissed. Accordingly - the impugned judgment & award dated 16.10.2008 made in MVC No.1297/2006 are modified. Appeal in MFA No.4071/200 is partly allowed -holding that he is entitled for global compensation of Rs.50,000/- along with costs & interest at the rate of 6% per annum from the date of petition till realization, as against owner, driver & insurer of the Car bearing registration No.KA-15/ M-7786 -whose liability is joint & several. The claim petition in MVC No.1338/2006 as against Oriental Insurance Company is dismissed. Accordingly the impugned judgment & award dated 31.5.2008 made in MVC No.1338/2006 are modified. The Insurance Company viz., New India Assurance Company Limited is directed to deposit the compensation amount as awarded in both the cases with the tribunal within three months from today. The Registry is directed to refund the amount deposited in MFA No.4072/2009 in favour of the appellant. The parties are directed to bear their own costs.