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2019 DIGILAW 1160 (KAR)

Somesha P. v. H. B. Ravikumar

2019-06-07

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : B.V. Nagarathna, J. 1. Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally. 2. M.F.A. No.6786 of 2017 has been filed by the injured claimant seeking enhancement of compensation, while M.F.A. No.4181 of 2017 has been filed by the insurance company. Both the appeals assail the judgment and award of the Motor Accident Claims Tribunal at Mysuru (hereinafter referred to as 'Tribunal', for the sake of brevity) dated 16.03.2017 passed in M.V.C. No.167 of 2015. 3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal. 4. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act', for the sake of brevity) seeking compensation on account of the grievous injuries including amputation of his left lower limb sustained by him in a road traffic accident. According to the claimant, on 24.07.2014 at about 3.00 p.m. he was proceeding in vehicle bearing Reg. No.KA-45-5154 on Udbur Kalalavadi Gate, Mysuru - H.D. Kote Main road, by observing traffic rules and at that time first respondent being the driver of the tipper lorry bearing Reg. No.KA-11/A-1153 drove the same in a rash and negligent manner endangering human life and dashed against the claimant's vehicle and ran away from the spot. As a result, one of the inmates of the tipper lorry by name Yogesh also died on the spot. The claimant who sustained grievous injuries was taken to Panacea Hospital, Mysuru and thereafter he was shifted to J.S.S. Hospital, Mysuru and Sparsh Hospital, Bengaluru where ultimately his left leg was amputated. Contending that he was permanently disabled and that prior to the accident he was hale and healthy and earning Rs.25,000/- per month as a driver and maintaining his family, he sought compensation on account of the amputation of his left leg. 5. Contending that he was permanently disabled and that prior to the accident he was hale and healthy and earning Rs.25,000/- per month as a driver and maintaining his family, he sought compensation on account of the amputation of his left leg. 5. In response to the notices issued by the Tribunal, respondent No.1, the owner of the lorry did not appear and he was placed ex parte, while the second respondent Insurance Company (appellant herein) appeared and filed its statement of objections denying the averments made in the claim petition and contending that the compensation claimed is excessive; that any liability on the insurance company would be subject to the terms and conditions of the policy issued in respect of the lorry. It was further contended that the driver of the Bolero vehicle, the claimant, was also negligent in causing the accident, and therefore, there has been contributory negligence on the part of the driver of the Bolero. The Insurance Company sought for dismissal of the claim petition. 6. On the basis of the rival pleadings the Tribunal framed the following issues for its consideration : 1. Whether the petitioner proves that he has sustained injuries in an accident arising out of use of vehicle bearing Reg. No. KA-11/A-1153 occurred on 24.07.2014 at about 15.00 hrs, due to the actionable negligence of its driver? 2. Whether the petitioner is entitled for any compensation? If so, at what quantum? 3. What order or relief? 7. In support of his case, the claimant examined himself as P.W.1, Dr. Nagaraj was examined as C.W.1/P.W.2. Claimant produced 36 documents which were marked as Exs.P-1 to P-36. Four documents were marked as Exs.C-1 to C-4. The Officer of the insurance company was examined as R.W.1. He produced three documents which were marked as Exs.R-1 to R3. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and awarded compensation of Rs.20,93,000/- along with interest at the rate of 9% p.a. from the date of the claim petition till realization. Being aggrieved by the meager amount of compensation awarded by the Tribunal, the claimant has preferred M.F.A. No.6786 of 2017. Challenging the finding on the issue of negligence as well as on the quantum of compensation awarded to the claimant, the insurance company has preferred M.F.A. No.4181 of 2017. 8. Being aggrieved by the meager amount of compensation awarded by the Tribunal, the claimant has preferred M.F.A. No.6786 of 2017. Challenging the finding on the issue of negligence as well as on the quantum of compensation awarded to the claimant, the insurance company has preferred M.F.A. No.4181 of 2017. 8. We have heard learned counsel for the appellant insurer and learned counsel for the claimant and perused the material on record as well as the original records. 9. Appellant's counsel appearing for the insurer, at the outset, contended that the Tribunal was not right in answering issue No.1 in the affirmative. That even according to Ex.P-4, which is a copy of the sketch, it is evident that there was a head-on collision between the two vehicles. Therefore, the negligence ought to have been apportioned both on the driver of the tipper lorry as well as on the claimant who was driving the Bolero vehicle on the fateful day. But the entire negligence has been fastened on the driver of the tipper lorry, which is incorrect. She drew our attention to Ex.P-3 copy of the spot mahazar as well as Ex.P-4 copy of the spot sketch to contend that on the aspect of negligence the Tribunal has mis-directed itself and has fastened negligence entirely on the driver of the insured vehicle which is not correct. She contended that when there is a head-on collision of vehicles coming from the opposite side, then negligence must be fastened on the drivers of both the vehicles, which has not been done so in the instant case. Hence, the finding on issue No.1 may be reversed or atleast modified. 10. On the aspect of quantum of compensation, learned counsel for the appellant - insurer contended that the claimant was the owner of Bolero, in question and he was driving the vehicle on the said date. That despite the amputation of left leg above the knee, the claimant can continue his business of hiring his vehicle by engaging the services of a driver and that the compensation could not have been awarded as such on the head of loss of future earning capacity. It is contended that the award of interest at 9% p.a. is also excessive, as it ought to be at the rate of 6% p.a. from the date of the claim petition till realization. It is contended that the award of interest at 9% p.a. is also excessive, as it ought to be at the rate of 6% p.a. from the date of the claim petition till realization. She further contended that assessment of notional income at Rs.15,000/- per month is on the higher side, in the absence of there being any concrete evidence in that regard. She further contended that the award of compensation on the other heads are on the higher side and that there may be a re-assessment of the same. 11. Per contra, learned counsel for the claimant drew our attention to the fact that the claimant was the owner of Bolero vehicle. He was driving the said vehicle and using it for hire purposes earning an income of Rs.25,000/-, but the Tribunal has assessed the notional income at only Rs.15,000/- p.m. which is on the lower side. His entire family was depending on his income. That on account of the amputation of his left lower limb, the claimant is unable to drive the vehicle or engage in any other gainful employment; that the percentage of permanent disability ought to have been assessed at 100% not 50%, as assessed by the Tribunal. He further contended that the award of compensation on the heads of pain and suffering, towards loss of amenities, future medical expenses and loss of income during laid-up period are all on the lower side. That this Court may re-assess the compensation and enhance the same. 12. Rebutting the contentions of learned counsel for the appellant, he submitted that the documents on record particularly Exs.P-1 to 5 and Ex.P-7 would clearly indicate that the driver of the tipper lorry was negligent in causing the accident. That the Tribunal has appreciated the said evidence on record and has noted that the tipper lorry had proceeded on the extreme right side of the road and hit the Bolero which was coming from the opposite direction. That the road was at a curve, and therefore, the driver of the tipper lorry ought to have been cautious while turning at the curve of the road, and therefore, this Court may not interfere with the said finding arrived at by the Tribunal. He contended that the appeal filed by the insurance company may be dismissed and the claimant's appeal may be allowed by enhancing the compensation. 13. He contended that the appeal filed by the insurance company may be dismissed and the claimant's appeal may be allowed by enhancing the compensation. 13. Upon hearing learned counsel for the respective parties and on perusal of the material on record as well as the original record, the following points would arise for our consideration : i. Whether the Tribunal was right in fastening the entire negligence on the driver of the lorry bearing Reg. No.KA- 11/A-1153? ii. Whether the claimant is entitled to enhanced compensation? iii. What order? 14. The fact that on 24.07.2014 at about 3.00 p.m. there was a head-on collision between the Bolero vehicle bearing Reg. No.KA-45-5154 and tipper lorry bearing Reg. No.KA-11/A-1153 is not in dispute. However, what is in dispute is as to which of the two drivers were negligent in causing the accident. The Tribunal has held that the driver of the tipper lorry was solely negligent in causing the accident, by answering issue No.1 in favour of the claimant. The said finding is assailed by the insurance company. In that regard, our attention has been drawn to the relevant exhibits. We have perused Ex.P-1 which is the copy of the FIR which was pursuant to Ex.P-2 which is copy of a complaint, the complaint was lodged against the driver of the tipper lorry. Exs.P-3 and 4 are copy of the spot mahazar and spot sketch. On perusal of the same, it is evident that the road was a curve, the spot of the accident is on the extreme right side of the said road. The driver of the tipper lorry ought to have proceeded on the left side, but instead while taking a curve he has gone on the extreme right side of the road and from the opposite side the Bolero was approaching and the tipper lorry has dashed against the Bolero vehicle. Therefore, on a cumulative perusal of these documents and also Ex.P-7 copy of charge-sheet, it is clearly established that the accident occurred on account of the negligence of the driver of the tipper lorry. Even though R.W.1 was examined on behalf of the insurance company, nothing has been elicited so as to demolish the documentary evidence on record produced by the claimant. Even in the cross-examination of P.W.1, nothing has been elicited in support of the insurance company's stand on the aspect of negligence. Even though R.W.1 was examined on behalf of the insurance company, nothing has been elicited so as to demolish the documentary evidence on record produced by the claimant. Even in the cross-examination of P.W.1, nothing has been elicited in support of the insurance company's stand on the aspect of negligence. In the circumstances, we have no hesitation to affirm the finding of the Tribunal on issue No.1 and fasten the entire negligence on the driver of the tipper lorry. Accordingly, point No.1 is answered against the insurance company. 15. This takes us to the next point, which is on the quantum of compensation awarded by the Tribunal. It has been established that the claimant had sustained amputation of left lower limb, just below the knee, apart from other injuries. The Tribunal has assessed the notional monthly income at Rs.15,000/-. Although it is a case of the claimant that he was earning Rs.25,000/- per month, being the owner of the Bolero vehicle and earning income by hiring out the same and maintaining his family, in the absence of any concrete evidence, in support of the plea that he was earning Rs.25,000/- per month the Tribunal has assessed the notional income at Rs.15,000/- p.m. But even with regard to an ordinary coolie, the notional monthly income assessed by this Court, if an accident had occurred in the year 2014 is Rs.8,500/- per month. In the circumstances, we find that in the absence of there being any concrete evidence in support of the plea that the income was Rs.25,000/- per month, the notional income assessed at Rs.15,000/- per month is also on the higher side. Hence, we assess the notional monthly income at Rs.12,000/- per month. However, the percentage of permanent disability cannot be only 50%, as has been assessed by the Tribunal. On account of the amputation of the left leg of the claimant, even though below the knee, would result in not less than 90% and insofar disability in driving the vehicle is concerned, at 100%. But keeping in view the overall circumstances of the case in mind, we assess the permanent disability at 90% instead of 50%, as assessed by the Tribunal. The age of the claimant is 25 years. Hence, the applicable multiplier is 18'. Therefore, the compensation on the head of loss of future earning capacity would be Rs.12,000/- x 90% x 12 x 18 = Rs.23,32,800/-. 16. The age of the claimant is 25 years. Hence, the applicable multiplier is 18'. Therefore, the compensation on the head of loss of future earning capacity would be Rs.12,000/- x 90% x 12 x 18 = Rs.23,32,800/-. 16. On the head of pain and suffering, compensation of only Rs.25,000/- is very meager. Since there has been amputation of left lower limb and other injuries, compensation on the head of pain and suffering is Rs.1,00,000/-. Considering the monthly income to be Rs.12,000/- for a period of six months, the award of compensation on the head of loss of income during laid-up period is Rs.72,000/-. The medical expenses of Rs.4,35,000/- awarded by the Tribunal is retained. Towards loss of amenities a sum of Rs.1,00,000/- is awarded instead of Rs.25,000/-, as awarded by the Tribunal. Towards future medical expenses a sum of Rs.50,000/- is awarded instead of Rs.25,000/- awarded by the Tribunal. As the claimant was 25 years at the time of the accident, towards loss of marriage prospects, a sum of Rs.50,000/- is awarded. Incidental charges including conveyance, attendant charges, nutritious food etc, a sum of Rs.40,000/- is awarded. Thus, the total compensation comes to Rs.31,79,800/-. 17. At this stage, it is brought to our notice that 50% of the compensation with interest was deposited before the Tribunal and the claimant has been permitted to withdraw the same. Out of the re-assessed balance compensation to be deposited by the appellant insurer, 75% of the same shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of ten years. The claimant shall be entitled to draw periodical interest on the said deposit. 25% of the deposit shall be released to him after due identification. 18. The balance compensation shall be deposited by the insurance company within a period of four weeks from the date of receipt of a certified copy of this judgment without driving the claimant to file any Execution Petition. 19. Thus, the appeal filed by the insurance company is dismissed. The appeal filed by the claimant is allowed in part. 20. The amount in deposit to be transmitted to the Tribunal. 21. Parties to bear their respective costs.