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2014 DIGILAW 702 (KAR)

Reshma S. Ganga v. Benagonda Erappa Biradara

2014-08-01

B.SREENIVASE GOWDA, N.K.PATIL

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Judgment : 1. Though these matters are posted today for Orders, with the consent of learned counsel appearing for both the parties, the same are taken up for Final disposal. These appeals by the Claimant and by the Corporation respectively are directed against the same impugned common judgment and award dated 06/08/2011 passed in MVC No.204/2009, by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-7, Shimoga, (hereinafter referred to as ' Tribunal' for short),. 2. The Tribunal by its judgment and award, has awarded a sum of Rs.18,47,200/- under different heads with interest at 6% p.a., from the date of petition till its deposit as against the claim made by the claimant for a sum of Rs.46,25,000/-, on account of the injuries sustained by her in the road traffic accident. Claimant has presented an appeal for enhancement of compensation on the ground that the compensation awarded by the Tribunal is inadequate and is liable to be enhanced and the Corporation has filed an appeal, on the ground that the compensation awarded by the Tribunal is on the higher side and is liable to be reduced and that the Tribunal has erred in not fixing contributory negligence on the part of the rider of the motor cycle. 3. In brief, the facts of the case are: The claimant is aged about 42 years at the time of the accident, hale and healthy prior to the accident. She met with an accident on 22.11.2008 at about 8.45 p.m. when she along with her husband was going on the motor cycle bearing Reg.No.KA.25.V.7813 as pillion rider in order to go to their house after attending the Customers Meet in the Main Branch of Syndicate Bank, and when they came near Sony Show Room, Nehru Road, Shimoga, at that time, the driver of KSRTC bus bearing Reg.No.KA.32.F.1299 came in a rash and negligent manner and dashed against the motor cycle from behind. On account of which, the motor cycle fell down on the road and the bus ran over on the legs of the claimant and driver after stopping the bus ranaway from the spot and the front wheel of the bus was on both the legs of the claimant. Immediately, claimant was shifted to Government Mc. On account of which, the motor cycle fell down on the road and the bus ran over on the legs of the claimant and driver after stopping the bus ranaway from the spot and the front wheel of the bus was on both the legs of the claimant. Immediately, claimant was shifted to Government Mc. Gann Hospital and she has admitted in KMC Hospital on 23.11.2008, undergone several surgeries and thereafter, on the advice of the Doctor, she has taken bed rest and follow up treatment. 4. It is the further case of the claimant that, she spent huge amount towards medical expenses and other incidental charges and on account of the injuries sustained by her, she suffered permanent disability. The Doctor has assessed the disability at 34% to the whole body. Therefore, she has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation. 5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after assessing the oral and documentary evidence and other materials available on file, and by assigning valid reasons has allowed the claim petition in part, awarding the compensation of Rs.18,47,200/- with interest at 6% p.a., from the date of petition till its deposit. 6. Being aggrieved by the said judgment and award, the claimant and the Corporation have filed appeals, seeking appropriate reliefs as stated supra. 7. We have heard learned counsel appearing for the claimant and learned counsel appearing for Corporation at considerable length of time. 8. Learned counsel Sri. M.V. Maheswarappa, appearing for the claimant submitted that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards loss of amenities, discomforts and unhappiness and in not awarding any compensation towards loss of income during treatment period and what is awarded by the Tribunal under the said heads is inadequate and it require to be enhanced reasonably. To substantiate the said submission, he submitted that, claimant is aged about 42 years, home maker and hale and healthy prior to the accident. To substantiate the said submission, he submitted that, claimant is aged about 42 years, home maker and hale and healthy prior to the accident. She met with an accident and sustained crush injury of both legs and other injures and the Doctor has assessed the disability at 56% to right lower limb, 45% to the left lower limb and at 34% to the whole body and on the advise of the Doctor, she has taken bed rest and follow up treatment. Discomforts persists through out her life and now she is completely depending on one assistant to meet out her day today necessities. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Further, he submitted that, the Tribunal after due consideration of the oral and documentary evidence has fixed the entire negligence on the part of the driver of the bus, on the ground that, police authorities have filed the charge sheet against the driver of the bus and therefore, there is no substance in the submission of the learned counsel appearing for the Corporation that there was a contributory negligence on the part of the rider of the motor cycle and therefore, interference by this Court is not called for. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation. 9. Per contra, learned counsel Sri. F.S. Dabali, appearing for Corporation submitted that, the Tribunal has erred in taking 1/3rd income of the husband of the claimant as her income placing reliance on the judgment of the Apex Court in the case of Arun Kumar Agrawal and another Vs. National Insurance Company Limited reported in (2011) Acci.C.R.93 (SC) and therefore, it is liable to be modified on the ground that, the facts and circumstances of the aforesaid judgment is different from the facts and circumstances of the case in hand. He further submits that the Tribunal has justified in awarding reasonable compensation towards medical expenses, conveyance, nourishing food and attendant charges and future medical expenses and therefore, it does not call for interference. He further submits that the Tribunal has justified in awarding reasonable compensation towards medical expenses, conveyance, nourishing food and attendant charges and future medical expenses and therefore, it does not call for interference. He further submits that there is contributory negligence on the part of the rider of the motor cycle and the Tribunal without considering the contents of FIR, complaint, spot mahazer and sketch which show there is negligence on the part of the rider of the motor cycle and therefore, he submitted that, reasonable negligence may be fixed on the part of the rider of the motor cycle by modifying the entire negligence fixed on the part of the driver of the bus. Therefore, he submitted that the impugned judgment and award is liable to be modified by refixing the negligence on the part of the driver of both the vehicles and by reducing the compensation. 10. After hearing the learned counsel for both parties, after perusal of the materials available on file, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration are: (i) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the bus? (ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? Re.Point No.1: 11. The occurrence of the accident and the resultant injuries sustained by the claimant as per Ex.P5-Wound certificate is not in dispute. It is also not in dispute that, claimant is aged about 42 years, homemaker and hale and healthy prior to the accident. injuries. 12. The Tribunal, placing reliance on the contents of FIR, complaint, Spot panchanama, IMV report and other documents. Ex.P1, Exs.P2 and 3 has observed that, the documents produced by the claimant clearly establish that the front left tire of the bus has ran over on the legs of the claimant and the witnesses who have seen the accident have stated before the police that driver of the bus was responsible for the accident. Further, the Tribunal has observed that, the contentions of the Corporation that the rider of the two wheeler himself was riding the vehicle in a zig zag manner and if that is the case, the driver of the bus should have taken precaution while driving the bus. Further, the Tribunal has observed that, the contentions of the Corporation that the rider of the two wheeler himself was riding the vehicle in a zig zag manner and if that is the case, the driver of the bus should have taken precaution while driving the bus. But it appears that he has not taken any precaution that too in Nehru road, while driving the bus. Further it could be seen that, RW1 has stated that immediately after the accident, he has disappeared from the spot and he has seen the motor cycle at a distance of 20 feet and tried to give an explanation that the rider of the motor cycle himself dashed against the bus and fell down. The Tribunal has further observed that, if there is any negligence on the part of the rider of the motor cycle, no one has prevented the driver of the bus to give complaint against the rider of the motor cycle. But, he has not done so. Therefore, the Tribunal has recorded a finding of fact that the entire negligence is on the part of the driver of the bus. The said finding of fact recorded by the Tribunal after critical evaluation of the oral and documentary evidence and after recording the finding of fact is just and reasonable and therefore, it does not call for interference. Nor we find any substance in the submission of the learned counsel appearing for Corporation that there is contributory negligence on the part of the rider of the motor cycle and therefore, it is rejected. Point No.1 is answered accordingly. Re.Point No.2: 13. It is the case of the claimant that she is aged about 42 years at the time of accident and home maker and hale and healthy prior to the accident. Point No.1 is answered accordingly. Re.Point No.2: 13. It is the case of the claimant that she is aged about 42 years at the time of accident and home maker and hale and healthy prior to the accident. As rightly submitted by the learned counsel appearing for Corporation, the Tribunal has erred in assessing 1/3rd of the income of the husband of the claimant as her income placing reliance on paragraph-32 of the judgment of the Apex Court in the case of Arun Kumar Agrawal and another vs. National Insurance Company and others reported in (2011) Acci.C.R.93 (SC) wherein, the Apex Court has observed that, in the case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation cannot be sustained, for the reason that, that is a case of death, but the instant case is of injuries. But there is no quarrel or dispute with regard to the law laid down by the Apex Court in the aforesaid judgment. Therefore, the said judgment is not applicable to the facts and circumstances of the case in hand. Taking into consideration the age, avocation and year of the accident and nature of injuries sustained by the claimant we reassess her income at Rs.5,000/- per month to meet the ends of justice. The proper multiplier applicable is 14'. 14. Further it emerges that on account of the injuries sustained by the claimant, she has taken treatment as inpatient for 117 days and underwent two surgeries. On account of the injuries sustained by the claimant she has suffered permanent disability and to prove the same, she examined the Doctor, who after clinical examination has opined that there is 56% disability to right lower limb and 45% to left limb and 1/3rd of which i.e. 33.67% which is rounded of to 34% would be the whole body disability instead of 50% as assessed by the Tribunal. 15. During the period of treatment, claimant might have undergone lots of pain and agony, on the advise of the Doctor, she might have taken bed rest and follow up treatment atleast for six months and she might have spent considerable amount towards medical expenses, including conveyance and other incidental expenses. 15. During the period of treatment, claimant might have undergone lots of pain and agony, on the advise of the Doctor, she might have taken bed rest and follow up treatment atleast for six months and she might have spent considerable amount towards medical expenses, including conveyance and other incidental expenses. Further, it emerges that, during the said period, she could not have attended her work regularly she being a home maker and she has depended on one assistant and on account of the injuries sustained by her she has suffered permanent disability at 34% to the whole body. It is permanent in nature and it would affect her future happiness and enjoyment in life. Taking all these factors into consideration, we award a sum of Rs.1,50,000/- towards injury, pain and sufferings against Rs.1,00,000/-, Rs.30,000/- towards loss of income during treatment period for six months at the rate of Rs.5,000/- per month, Rs.1,00,000/- towards loss of amenities, discomforts and unhappiness against Rs.75,000/- and Rs.2,85,600/- (Rs.5,000/- x 12 x 14 x 34%) towards loss of future earnings instead of Rs.12,60,000/- awarded by the Tribunal. 16. However, the Tribunal has justified in awarding a sum of Rs.2,88,169/- towards medical expenses, Rs.74,000/- towards conveyance, nourishing food and attendant charges, Rs.50,000/- towards future medical expenses and therefore, it does not call for interference. In all, the claimant is entitled to the total compensation of Rs.9,77,769/- instead of Rs.18,47,200/- and the break-up is as follows: Towards injury, pain and sufferings Rs. 1,50,000/- Towards medical expenses Rs. 2,88,169/- Towards conveyance, nourishing food Rs. 74,000/- and attendant charges Towards loss of income during treatment Rs. 30,000/- period Towards loss of amenities, due to Rs. 1,00,000/- disability Towards loss of future earnings Rs. 2,85,600/- Towards future medical expenses Rs. 50,000/- Total Rs.9,77,769/- 17. For the foregoing reasons, the appeal filed by the claimant is disposed of and the appeal filed by the Corporation is allowed in part. The impugned judgment and award dated 06/08/2011 passed in MVC No.204/2009, by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-7, Shimoga, is hereby modified, awarding compensation of Rs.9,77,769/- instead of Rs.18,47,200/- awarded by the Tribunal. There would be a reduction of compensation of Rs.8,69,431/-. The impugned judgment and award dated 06/08/2011 passed in MVC No.204/2009, by the II Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal-7, Shimoga, is hereby modified, awarding compensation of Rs.9,77,769/- instead of Rs.18,47,200/- awarded by the Tribunal. There would be a reduction of compensation of Rs.8,69,431/-. The Corporation is directed to deposit the remaining compensation with interest, after deducting whatever amount deposited by it as on date, within three weeks from the date of receipt of a copy of this judgment. At this stage, learned counsel appearing for Corporation submitted that, already the Corporation has deposited a sum of Rs.11,00,000/- before the Tribunal. Therefore, the Tribunal is directed to refund the excess amount, if any, paid by the Corporation to the Corporation through its counsel. The apportionment and manner of disbursement ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court. The amount deposited by the Corporation shall be transmitted to the jurisdictional Tribunal immediately. Office to draw the award, accordingly.