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2018 DIGILAW 671 (KAR)

M. Muniraju v. K. Selvam

2018-06-07

S.SUJATHA

body2018
JUDGMENT : S. Sujatha, J. The Insurer as well as the claimant are in appeal challenging the Judgment and Award passed by the Motor Accident Claims Tribunal, Bengaluru ['Tribunal', for short] in MVC No.5290/2010, whereby total compensation of Rs.2,06,400/- with interest at 6% per annum is awarded from the date of the petition till the date of deposit, fixing the contributory negligence of the driver of the lorry at 80% and of the claimant at 20%. 2. The claimant preferred petition before the Tribunal claiming compensation for the injuries sustained by him in the road traffic accident which occurred on 18.03.2010 alleging actionable negligence of the driver of the lorry bearing registration No.TN-28- B-7369 insured with the insurance company-appellant in MFA No.11462/2011. It was contended that the accident occurred when he was standing near Deepa Complex near Ullal junction to cross the road. On service of notice, insurance company appeared through its Counsel and contested the claim. On appreciation of the evidence, the Tribunal awarded total compensation of Rs.2,58,000/- fixing the contributory negligence of 80% on the driver of the lorry [offending vehicle] and 20% on the claimant. 3. Learned counsel appearing for the claimant [appellant in MFA No.1246/2012] submitted that the Police records discloses the negligence on the driver of the offending vehicle, the claimant being a pedestrian waiting to cross the road has no way contributed to the accident in question. These aspects ought to have been analyzed in a proper perspective while fixing the contributory negligence of 20% on the claimant. The driver of the offending vehicle owes more responsibility being a driver of a heavy vehicle, particularly, in the junction where the possibility of pedestrians crossing the road cannot be ruled out. In such circumstances, it was obligatory on the part of the driver of the offending vehicle to be more careful and no contributory negligence can be attributed to the claimant. Further, learned Counsel argued that immediately after the accident, the claimant was admitted to Nimhans Hospital, Bengaluru on 19.03.2010 where surgery was conducted and thereafter the claimant was shifted to Victoria Hospital, Bengaluru on 20.03.2010 for further treatment where he has taken treatment as an inpatient from 20.03.2010 to 23.03.2010. The medical records discloses that the injuries sustained by the claimant are all grievous in nature. The impact of injuries has not been properly considered by the Tribunal. The medical records discloses that the injuries sustained by the claimant are all grievous in nature. The impact of injuries has not been properly considered by the Tribunal. The Tribunal determined the monthly income of the claimant at Rs.3,000/- contrary to the material evidence on record. Even in the absence of substantial proof of income, considering the date of the accident and age of the injured, the reasonable monthly income ought to be not less than Rs.7,000/-. The compensation awarded under the different heads is on the lower side, thus seeks for enhancement of compensation considering these aspects. Learned counsel placed reliance on the Judgment of this Court in the case of Managing Director, State Express Transport Corporation Ltd. v Syed Zabiulla S.K. and others, (2015) ACJ 1682 to justify the quantum of compensation awarded under the different heads. 4. Learned Counsel appearing for the insurance company argued that the quantum of compensation awarded by the Tribunal is arbitrary and exorbitant, much against the material evidence on record, it is submitted that the claimant in order to extract higher compensation, has made false submissions as regards his employment. Hence, considering the monthly income placed on record before the Hospital where he has taken treatment, as Rs.500/- and Rs.800/- [Exhibit P17], the determination of monthly income on notional basis at Rs.3,000/- cannot be found fault with. It is submitted that the Doctor who has assessed the disability is not competent. The disability relating to the brain and the neurological disorders can be assessed only by a Neurosurgeon and not a general surgeon. PW.2-Doctor is a general surgeon. As such, the assessment of disability to the extent of 15% to the whole body cannot be countenanced. The compensation of Rs.1,00,000/- awarded under the head 'pain and suffering' and Rs.80,000/- towards disability and Rs.50,000/- towards loss of amenities in life is disproportionate to the gravity of injuries sustained by the claimant and medical treatment taken, the same requires to be reduced substantially. 5. Learned Counsel argued that the claimant had the responsibility to look out on either side of the road while crossing the road. It is proved from the police records that the accident occurred while the claimant was crossing the road and the same has been admitted by the claimant in his evidence. 5. Learned Counsel argued that the claimant had the responsibility to look out on either side of the road while crossing the road. It is proved from the police records that the accident occurred while the claimant was crossing the road and the same has been admitted by the claimant in his evidence. There being contributory negligence on the part of the claimant, the Tribunal is right in fixing the negligence of 20% on the claimant. It is submitted that confirming contributory negligence at 20% on the claimant, quantum of compensation awarded by the Tribunal has to be reduced substantially. 6. I have given my consideration to the arguments advanced by the learned Counsel appearing for the parties and perused the material on record. 7. As regards the aspect of contributory negligence, it is beneficial to refer to the dictionary meaning of 'negligence' in Chambers 21st Century Dictionary. 'Negligence' means lack of proper attention or care; careless; neglect; law breach of a legal duty to care for others. Contributory negligence is lack of care on the part of the claimant who would have avoided the accident, had taken little care, particularly, while crossing the road. At this juncture, it is apt to refer to the passage from Charlesworth and Percy's book on Negligence 7th Edition wherein it is stated thus: "A road user must not presume to use the highway on the basis that the other users, whether drives or pedestrians, will be have with reasonable care, which common experience has shown to be a false assumption. In this regard Lord Uthwatt added: 'a' driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take.' Pollock C.B. said: "It is the duty of persons, who are driving over a crossing for foot-passengers which is at the entrance of a street, to driver slowly, cautiously and carefully; but it is also the duty of a foot passenger to use due care and caution in going upon a crossing at the entrance of a street, so as not to get among the carriages and thus receive injury." 8. No doubt, it is the duty of the driver of the vehicles to keep a good look out expecting either traffic on the road especially at cross roads, junctions and bends, but equal duty is cast upon a pedestrian also who should use due care and caution in going upon or cross the road and his duty is to look for traffic coming from both sides of the road. The Hon'ble Apex Court in the case of 'PRAMODKUMAR RASIKBHAI JHAVERI VS KARMASEY KUNVARGI TAK & OTHERS' has referred to the observations of the High Court of Australia in 'ASTLEY v. AUSTRUST LIMITED,1999 73 AJLR 403' which reads thus: "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 9. In the light of this Judgment, the material evidence on record has been analyzed carefully. The rough sketch Exhibit P4 discloses that the accident occurred on the road. PW.1 has admitted that he was walking on the road and not on the footpath. Had the claimant had taken little care when crossing the road, the accident would have been avoided. In the light of this Judgment, the material evidence on record has been analyzed carefully. The rough sketch Exhibit P4 discloses that the accident occurred on the road. PW.1 has admitted that he was walking on the road and not on the footpath. Had the claimant had taken little care when crossing the road, the accident would have been avoided. Merely for the reason that no negligence is attributed by the police on the claimant, the evidence of PW-1 [claimant] being apparent on the face of the record to prove his negligence, claimant cannot be held to be not negligent or the accident caused only due to the negligence of the driver of the offending vehicle. In the circumstances, 20% of negligence fixed on the part of the claimant cannot be held to be unjustifiable. 10. As regards the quantum of compensation awarded by the Tribunal, it is apparent that the claimant had taken treatment for about a day at NIMHANS, Bangalore and for 3 days at Victoria hospital, Bangalore. The nature of injuries sustained by the claimant as per the wound certificate issued by Sahana Hospital, marked at Ex.P9 discloses that he sustained head injury/abrasion over the right lower limb and contusion laceration over right lower limb and in the lower lip. The doctor who was examined as PW-2 has assessed the disability of 15% to the whole body. In such circumstances, awarding compensation of Rs.1,00,000/- under the head pain and suffering is exorbitant. In the Judgment of SYED ZABIULLA [supra], this court observed that the claimant had suffered the whole body disability at 60% based on the material evidence relating to the injuries sustained by the claimant, wherein the doctor has assessed the permanent disability to the extent of 100%. In the instant case, even assuming the claimant had suffered the disability to 15% as assessed by the Doctor, considering the same the Tribunal has awarded compensation of Rs.80,000/- under the said head without assigning any reasons. Hence, the said Judgment is not applicable to facts of the present case. 11. Considering the compensation awarded under different heads being excessive, further enhancing the compensation by assessing the monthly income of the injured notionally at Rs.7,000/- would not arise. Total compensation of Rs.2,58,000/- awarded under different heads would be just and reasonable and the same do not call for any interference by this court. 11. Considering the compensation awarded under different heads being excessive, further enhancing the compensation by assessing the monthly income of the injured notionally at Rs.7,000/- would not arise. Total compensation of Rs.2,58,000/- awarded under different heads would be just and reasonable and the same do not call for any interference by this court. Claimant shall be entitled to 80% of the compensation awarded amounting to Rs.2,06,400/- . The claimant shall not be entitled to interest on the balance 50% of the compensation amount to be deposited, with effect from 23.6.2012, since 50% of the compensation awarded is deposited by the appellant on 23.06.2012. Balance amount shall be deposited by the Insurance company within two months. Both the appeals stand dismissed.