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2014 DIGILAW 1116 (KAR)

G. M. Palakshappa v. G. M. HALAPPA

2014-12-19

PRADEEP D.WAINGANKAR

body2014
JUDGMENT PRADEEP D. WAINGANKAR, J. 1. M.F.A.No.5266/2009 and M.F.A.Crob.145/2010 are arising out of the judgment and award dated 30.09.2008 in MVC No.394/2006 on the file of the Civil Judge, (Senior Division) and MACT-II, Davanagere. 2. The facts in brief are as under: On 27.08.2005, the claimant G.M. Palakshappa was returning to his village Garag from Chennagiri as a pillion rider on a motorcycle bearing No.KA17Q8808 driven by his brother G.M. Halappa (the registered owner). While he was riding motorcycle, a lorry came from opposite direction in a rash and negligent manner. By seeing the speed in which the lorry was coming, the rider of the motorcycle took the motorcycle to the extreme left side of the road and in the process the motorcycle fell into a ditch. As a result, the claimant fell down from the motorcycle and sustained grievous injuries for which he was treated in Nanjappa Hospital, Shimoga as an inpatient. He spent substantial amount for treatment. He lost his earning during the period of treatment and even after best treatment he suffered disability. Therefore, claiming compensation of Rs.5,00,000/he filed claim petition under Section 166 of M.V. Act before the Tribunal. 3. The claim petition was opposed by both respondent No.1owner and rider of the motorcycle and respondent No.2insurer. (a) Respondent No.1 in his reply has contended that there is no negligence on his part. When he took the motorcycle to his extreme left side in order to avoid major accident, it fell into a ditch and thereby the claimant sustained injuries. It is further contended that motorcycle was insured with respondent No.2 by issuance of policy which was in force as on the date of accident and that he had valid driving licence as on the date of accident. Hence, owner of motorcycle has prayed to fasten the liability on the insurance company in the event, an award is passed in favour of the claimant. (b) Respondent No.2 Insurance Company has denied all the material averments made out in the claim petition as to the manner of the accident, nature of injury sustained by claimant, period of treatment, period of hospitalization, expenditure incurred, disability said to have been suffered by the claimant etc., etc., apart from denying the negligence attributed to the rider of the motorcycle and involvement of the motorcycle. It has been specifically contended that the claimant himself was riding the motorcycle without possessing valid and effective driving licence, in violation of policy conditions. For all these reasons, Insurer has prayed for dismissal of the claim petition. 4. The claim petition came up for consideration before the Tribunal. The Tribunal upon hearing the submissions made by learned counsels appearing for parties and upon appreciation of evidence, recorded a finding that the accident occurred on account of rash and negligent riding of the motorcycle by its rider and thereby the Tribunal awarded a sum of Rs.1,49,500/as compensation to the claimant together with 7% interest thereon by the impugned judgment and award. 5. Aggrieved by the quantum of compensation awarded by the Tribunal, the claimant preferred M.F.A.No.5266/2009 for enhancement of compensation. Whereas, Insurance Company filed MFA Crob.145/2010 aggrieved by the finding of the Tribunal as to the involvement of the motorcycle, negligence attributed to the rider of the motorcycle and the quantum of compensation awarded. 6. I have heard the learned counsel for claimant and learned counsel for Insurance Company. Perused the records. 7. Upon hearing both the learned counsel appearing for the claimant and the insurance company and on perusal of material placed on record, the following points would arise for my determination: (i) Whether the finding recorded by the Tribunal that the accident and resultant injury sustained by the claimant were due to rash and negligent riding of the motorcycle bearing registration No.KA17Q8808 by its rider? (ii) Whether the compensation awarded by the Tribunal is just and reasonable? Point No. 1. 8. The case of the claimant is that while he was returning to his native place Garag village on a motorcycle bearing registration No.KA17Q8808 belonging to respondent No.1 on 27.08.2005 from Chennagiri, on account of rash and negligent riding of the motorcycle, the motorcycle fell into a road side ditch. As a result the claimant (pillion rider) thrown out from the motorcycle and sustained injuries. On the other hand, it is the case of Insurance Company that accident occurred while claimant himself was riding motorcycle without valid and effective driving licence; after about 20 days, the information has been given to the police by fixing the motorcycle in question belonging to brother of the claimant and claim petition came to be filed. It is true that accident occurred on 27.08.2005. It is true that accident occurred on 27.08.2005. The crime came to be registered against one G.M. Halappa (the owner of the motorcycle) after about 20 days which definitely creates doubt in the mind of the Court. But, the fact remains that respondent No.1 (owner of the motorcycle bearing registration No.KA17Q8808) in his statement of objections has admitted that at the time of the accident he was riding motorcycle and the claimant (his brother) was the pillion rider; while he took the motorcycle on the extreme left side of the road in order to avoid an accident due to the lorry that was coming from opposite direction in a rash and negligent manner, motorcycle fell down into a ditch. The claimant (pillion rider) fell down and sustained injuries. The claimant who has been examined as PW.1 has also stated in his evidence that accident occurred on account of rash and negligent riding of the motorcycle by its owner cum rider G.M. Halappa. As against the evidence placed on record by the claimant, there is no rebuttal evidence. Except production of insurance policy, Insurance Company has not led evidence of any other witnesses. The police documents produced on behalf of claimant Ex.P1FIR, Ex.P2first information, Ex.P3spot mahazar, Ex.P4seizure mahazar, Ex.P6Motor Vehicle Inspector report and Ex.P7chargesheet filed by the police officer, make it very clear that at the time of accident, respondent No.1G.M.Halappa was riding the motorcycle and the claimant was pillion rider. The Tribunal on consideration of the material placed on record by the claimant as well as Insurance Company has rightly recorded a finding that accident and resultant injury sustained by the claimant are on account of rash and negligent riding of motorcycle bearing registration No.KA17Q8808 by its rider. 9. It is evident from the records that Insurance Company satisfied the award by depositing award amount. When the Insurance Company received notice in MFA No.5266/2009 filed by the claimant for enhancement of compensation, it has filed cross-objection questioning the very involvement of the motorcycle in question in the said accident just to take a chance. Thus, on re-appreciation of the evidence, I do not find any reason to call for my interference in the finding recorded by the Tribunal that accident and resultant injuries were suffered by the claimant on account of rash and negligent riding of the motorcycle by its rider G.M. Halappa. Accordingly, point No.1 is answered. Thus, on re-appreciation of the evidence, I do not find any reason to call for my interference in the finding recorded by the Tribunal that accident and resultant injuries were suffered by the claimant on account of rash and negligent riding of the motorcycle by its rider G.M. Halappa. Accordingly, point No.1 is answered. Point No. 2. 10. The claimant dissatisfied with the quantum of compensation awarded by the Tribunal has preferred MFA No.5266/2009. According to the claimant, compensation awarded by the Tribunal under all the heads is on the lower side and it requires to be enhanced. In the said accident, claimant sustained following injuries as could be seen from Ex.P5 wound certificate issued by Nanjappa Hospital, Shimoga, where he was admitted on 28.08.2005 to 30.08.2005: (i) An abrasion of 1’x1’ over the middle of the fore head. (ii) An abrasion of ½‘x½’ over the Nose. (iii) An swelling of 3’x2’ and the (L) ankle region with restricted movement in the joint. (iv) A diffuse swelling deformity of (L) Leg with restricted movement and severe tenderness. (v) A lacerated wound of ½‘x½’ over the mucosal surface of lower hip with bleeding. (vi) A fractured wound of 2’ length over the (L) ankle region on his medical aspect. (vii) As per Xray of (L) leg e (L) ankle and foot – fracture of (a) Tibia (b) Fibula and (c) Cauarem Bones. 11. Thus from Ex.P5wound certificate it is evident that he sustained fracture of left tibia and fibula apart from other injuries. Since the accident occurred in the year 2005, the Tribunal having regard to the nature of injuries, nature of treatment and the period of hospitalization, awarded a sum of Rs.30,000/under the head injury, pain and suffering which appears to be on the lower side. Ends of justice will be met if an amount of Rs.40,000/is awarded under the head injury, pain and suffering as against Rs.30,000/awarded by the Tribunal. 12. Upon perusal of the medical bills, the Tribunal has rightly awarded a sum of Rs.9,386.55/under the head medical expenses. Similarly the Tribunal has awarded a sum of Rs.15,000/under the head future medical expenses and nutritious food. Therefore, question of interference by this Court does not arise. 13. So far as loss of income during period of treatment, the Tribunal has awarded a sum of Rs.9,600/. Similarly the Tribunal has awarded a sum of Rs.15,000/under the head future medical expenses and nutritious food. Therefore, question of interference by this Court does not arise. 13. So far as loss of income during period of treatment, the Tribunal has awarded a sum of Rs.9,600/. The claimant in his evidence has stated that he was aged about 44 years at the time of accident, earning Rs.8,000/per month by agriculture and by his business. Since no documents were produced by the claimant in support of the same, the Tribunal has taken monthly income of the claimant as Rs.2,400/which is on the lower side. Having regard to the fact that claimant was aged about 44 years and that he had a family of dependents consisting of his wife and children, definitely he must have been earning a monthly income of Rs.3,000/to Rs.4,000/at the minimum. As such, I am inclined to take monthly income of the claimant as Rs.3,500/. On account of accidental injuries, he must have been incapacitated from attending to his work atleast for a period of four months and thereby he lost his income for a period of four months. So an amount of Rs.14,000/(Rs.3,500/x 4) is awarded under the head loss of income during the period of treatment as against Rs.9,600/awarded by the Tribunal. 14. The claimant has deposed that he suffered 60% disability of the affected limb. To substantiate the same, he examined Dr. Nagabhushana D.M. as PW.2 who inturn has deposed that he examined the claimant for assessment of the disability and found that the claimant suffered 60% disability of the affected limb. The Tribunal has taken whole body disability of 15% and awarded a sum of Rs.65,520/as compensation under the head loss of future income on account of disability. Even if 15% disability of the whole body is taken, future loss of income on account of disability comes to Rs.81,900/by taking monthly income of claimant as Rs.3,500/(Rs.3,500/x 12 x 15/100 x 13). Thus the claimant has been awarded a sum of Rs.81,900/under the head loss of future income on account of disability as against Rs.65,520/awarded by the Tribunal. 15. Tribunal has awarded a sum of Rs.20,000/under the head loss of amenities which appears to be just and proper. 16. Thus, the claimant is awarded a total compensation of Rs.1,80,286.55/under various heads as under as against Rs.1,49,506.55/awarded by the Tribunal. Heads Amount Pain and agony Rs. 15. Tribunal has awarded a sum of Rs.20,000/under the head loss of amenities which appears to be just and proper. 16. Thus, the claimant is awarded a total compensation of Rs.1,80,286.55/under various heads as under as against Rs.1,49,506.55/awarded by the Tribunal. Heads Amount Pain and agony Rs. 40,000.00/- Loss of earnings during treatment period Rs. 14,000.00/- Medical bills Rs. 9,386.55/- Medical expenses and Food and nourishment Rs. 15,000.00/- Loss of amenities Rs. 20,000.00/- Loss of future income on account of disability Rs. 81,900.00/- Total Rs. 1,80,286.55/- 17. There shall be an enhancement of compensation of Rs.30,786.55/- (Rs.1,80,286.55/-Rs.1,49,506.55/-) together with interest at 7% thereon from the date of petition till the date of realisation. Accordingly, I pass the following: Accordingly, I pass the following: ORDER M.F.A.No.5266/2009 is partly allowed. The judgment and award dated 30.09.2008 in MVC No.394/2006 on the file of the Civil Judge, (Senior Division) and MACT-II, Davanagere, stands modified. The appellant/claimant is awarded an enhanced compensation of Rs.30,786.55/over and above the compensation awarded by the Tribunal together with 7% interest thereon from the date of petition till the date of realisation. Respondent No.2 Insurance Company is directed to deposit the enhanced compensation amount together with interest thereon within a period of two months from the date of receipt of copy of this judgment. In the event of deposit, entire compensation amount shall be released in favour of claimant. M.F.A.Crob.145/2010 is dismissed. Amount in deposit by insurance company in MFA.Crob.145/2010 shall be transmitted to the Tribunal.