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2019 DIGILAW 1268 (KAR)

Manohar v. Naazparaveen Abdulkarim Dakani

2019-06-14

BELLUNKE A.S., G.NARENDAR

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JUDGMENT : BELLUNKE A.S., J. 1. These two appeals arise out of a judgment and award passed in M.V.C. No.330/2014 passed by the Fast Track Court-I I and Addl. M.A.C.T., Belagavi dated 16.01.2015 (hereinafter referred to as the Tribunal , for the sake of brevity). 2. For the sake of convenience, parties are referred to as per their status before the Tribunal. 3. Though both the appeals arose out of a single incident of road traffic accident, they are clubbed together, heard and disposed off finally. 4. The brief facts for the purpose of these appeals are as under: That on 25.01.2014 at 8.10 p.m. on Belgaum- Sambra road, near Basavan Kudachi , the driver of the car, bearing registration No.KA-28/M-8315, owned by first respondent and insured by second respondent was coming from Sambra towards Belagavi and drove the same at a high speed and in a rash and negligent manner and dashed against the rickshaw bearing registration No.KA-23/6806 owned by the third respondent, in which one Manohar was traveling and which was coming from Belagavi towards Sambra in a moderate speed, thereby causing him grievous injuries like fracture. He took treatment for the same in a hospital. His left leg above knee was amputated. Therefore, the injured claimant filed claim petition seeking compensation. 5. After service of notice, all the three respondents appeared through their respective counsel and filed their written statements denying the petition averments. 6. Based on the pleadings of the parties, the Tribunal framed the following issues for consideration: (1) Whether the petitioner proves that on 25.01.2014 at 8.10 p.m. near Basavan Kudashi on Belgaum-Sambra road the petitioner sustained injuries due to the rash or negligent driving of the vehicles bearing registration No.KA-28/M-8315 and KA-23-6806 by its drivers? (2) Whether the petitioner is entitled to for compensation? If so, what amount and from whom? (3) What order? 7. After holding trial, the Tribunal answered the issues in the positive and quantified the compensation payable to the injured as under: Pain and sufferings Rs.50,000/- Loss of future happiness and amenities Rs.1,00,000/- Loss of income during the treatment period Rs.26,000/- Incidental charges Rs.28,000/- Medical expenses Rs.1,00,000/- Future medical expenses Rs.50,000/- Towards loss of future income Rs.6,24,000/- Total Rs.9,78,000/- 8. The Tribunal found that there was composite negligence on the part of both the drivers of the vehicles. The Tribunal found that there was composite negligence on the part of both the drivers of the vehicles. Therefore, the owners of both the vehicles jointly and severally were held liable to satisfy the award. Since the vehicle owned by the third respondent was not having insurance, the Tribunal fastened the liability on respondent Nos.1 and 2 to pay compensation of Rs.4,64,000/- and held liable the respondent No.3 to pay the compensation of Rs.4,64,000/- along with simple interest @ 9% per annum from 15.02.2014. Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed M.F.A.No.101108/2015 whereas the owner has filed M.F.A.No.101452/2015 questioning the liability fastened on him. 9. The appellant in M.F.A.No.101452/2015 has challenged the judgment and award on the following grounds: It is submitted that the judgment and award is passed by the Tribunal is contrary to law and evidence on record. Hence, it is liable to be set aside against the appellant is concerned. The accident has occurred only on account of negligence on the part of the motorcar driver. The fixing of liability on this appellant by the Tribunal is illegal and bad in the eye of law. The Tribunal wrongly came to the conclusion that it was a case of contributory negligence. The material eye witnesses PWs-1 and 2 have clearly stated that the accident had occurred due to rash and negligent act of the car driver. Therefore, the Tribunal failed to appreciate Exs.P-1 to P-6 which show that the car driver was prosecuted for rash and negligent driving. The Tribunal has not believed the said document. The damages caused to the respective vehicles prove that the car driver was negligent and he had directly hit the auto rickshaw. The Tribunal has not properly appreciated both the oral and documentary evidence and hence prayed to allow the appeal and set aside the judgment and award. 10. The appellant claimant in M.F.A. No.101108/2015 has challenged the judgment and award of the Tribunal on the following grounds: The judgment and award under this appeal in rejecting partly is error, illegal and contrary to the facts and evidence of the case. 10. The appellant claimant in M.F.A. No.101108/2015 has challenged the judgment and award of the Tribunal on the following grounds: The judgment and award under this appeal in rejecting partly is error, illegal and contrary to the facts and evidence of the case. The MACT ought to have considered that the appellant s left leg above knee is amputated, evidence of comminuted displaced fracture of tibia plateau with intraar ticular extension, evidence of comminuted displaced complex fracture shaft of tibia, comminuted displaced fracture of fibula with dislocation of proximal tibia-fibula joint. The MACT ought to have income at Rs.12,000/- per month keeping in view the future prospectus of the appellant and present scenario and ought to have awarded just compensation under the head of loss of earning. The MACT ought to have award compensation of Rs.2,00,000/- towards the pain and suffering, Rs.3,50,000/- towards loss of amenities and enjoyment of life and Rs.5,00,000/- towards future medical treatment and for replacing artificial limb. The MACT committed serious error in considering the disability at 50% when the appellant being mason has suffered amputation above knee ought to have taken 100% disability as per Apex Court citation. The MACT ought to have considering the future prospectus of the appellant as per Apex Court citation. 11. We have heard both the side at length. 12. Learned counsel for the appellant in M.F.A.No.101108/2015 submits that the medical records at Ex.P-7, wound certificate, discharge summary at Ex.P-8 and Ex.P-9 disability certificate has not been properly appreciated. The oral and documentary evidence establish that the accident on account of rash and negligent driving of the motor car. The reasoning assigned by the Tribunal in holding that respondent No.3 could have been more cautious since the offending vehicle was coming from the opposite direction. The claimant had suffered amputation of the left leg above the knee. There was comminuted displaced fracture of fibula with dislocation of proximal tibia-fibula joint. The Tribunal ought to have assessed income of the deceased at Rs.12,000/- per month. The Tribunal has committed a serious error in assessing the disability at 50% though the left leg was amputated above knee level. The Tribunal has not considered the future prospects of the injured. Tribunal reframed the issues at the time of arguments with regard to negligence. The Tribunal ought to have assessed income of the deceased at Rs.12,000/- per month. The Tribunal has committed a serious error in assessing the disability at 50% though the left leg was amputated above knee level. The Tribunal has not considered the future prospects of the injured. Tribunal reframed the issues at the time of arguments with regard to negligence. Tribunal suo motu without there being claim on the part of the appellant erroneously came to the conclusion that both the vehicles caused the accident. The finding is against to the fact and evidence on record. Even assuming that it is a case of composite negligence, the Tribunal should have held all the respondents liable to pay compensation. Apportionment of 50:50 is contrary to the evidence on record. The Tribunal committed error in not considering that the driver of the offending vehicle pleaded guilty. The compensation awarded is not just and proper, it is against to the law laid by the Hon ble Apex Court in 2014 ACJ 704 . The Tribunal ought to have awarded 12% future interest. Hence, prayed to enhance the compensation. 13. Learned counsel for the appellant in M.F.A.No.101452/2015 has filed the copy of the judgment passed in C.C. No.390/2014 on the file of J.M.F.C.-I I , Belgavi dated 08.04.2015. Based on the judgment it is contended that the accused that is respondent No.3 in the claim petition was acquitted for the offence punishable under Sections 279 and 338 of IPC. He was only convicted for the offence punishable under Section 146 read with Section 196 of Motor Vehicles Act. 14. On the above said facts and arguments, the points that would arise for our consideration are as under: (1) Whether the Tribunal has committed error in holding that there was composite negligence on the part of both the drivers of both the vehicles? (2) Whether the Tribunal has committed error in holding that respondent No. -3 was rash and negligent in driving his auto rickshaw and thereby the accident had occurred? (3) Whether claimant is entitled for the compensation? If yes, what is the quantum of compensation? 15. The judgment in criminal case is placed before us which goes to show that the auto driver has been acquitted. (3) Whether claimant is entitled for the compensation? If yes, what is the quantum of compensation? 15. The judgment in criminal case is placed before us which goes to show that the auto driver has been acquitted. It is also contended in one of the appeals that the driver of the offending car had pleaded guilty but the said record is not produced before this Court. Therefore, we reassess the evidence on record particularly the sketch of the scene of offence and the motor vehicle report. The damage that was caused to the auto rickshaw left side front headlamp glass damaged and left side front board and side body panels damaged. As regards motor car is concerned, left side front bumper was completely damaged, left side front headlamp and side indicators assembly were damaged, left side front engine bonnet was damaged. The sketch of scene of offence is at Ex.P-3 clearly indicates that it is a junction road. The road from which the car was coming runs from Sambra towards Belagavi side and Belagavi to Basavankudachi also passes along with that road. The accident occurred after the junction point and the spot of accident clearly shows that the auto in order to go towards Basanvanakudachi road, there was also sufficient space left on the side of the car which was coming from Sambra to Belagavi city road. If the car driver had taken his vehicle diligently little towards left side, this accident would not have occurred. Therefore, we find that it is the motor car driver who was rash and negligent and it is solely responsible for the accident. Moreover, the motorcar driver has not been examined before the Tribunal nor any other eye witnesses were examined by the respondents No.1 and 2. The reasoning of the Tribunal that the headlights of the car were on, therefore the auto driver should have assessed the speed at which the vehicle was coming and since he tried to take right side of the road, this accident has happened. This reasoning is totally perverse and capricious and against evidence on record. The car driver could have observed and could have avoided the accident. The last chance was there for the car driver to avoid the accident. Since that has not been done, the accident has occurred. It was the motor car driver s rash and negligent driving resulting in accident. The car driver could have observed and could have avoided the accident. The last chance was there for the car driver to avoid the accident. Since that has not been done, the accident has occurred. It was the motor car driver s rash and negligent driving resulting in accident. Therefore, respondents No.1 and 2 alone are liable to satisfy the award. 16. On perusal of the reasoning given by the Tribunal, we find that the learned Judge has committed error in fastening the factum of rash and negligent act on both of the motor car driver and the auto driver. The Tribunal has considered the admission of RW-2 that is respondent No.2 that he was about to go to Basavanakudachi by taking his vehicle right side. The car driver lodged a complaint against him and charge sheet is filed against him. The accident occurred at about 8.00 pm. Since it was not the case of Respondents No.2 or 3 that the car was coming without putting headlight and therefore the Tribunal having regard to the width of the road, held that the rickshaw driver was able to know at what speed offending car was coming and in what manner it was coming. Therefore, rickshaw driver who was to take right side, he should have been more cautious. Hence, it is not a case of contributory negligee. Therefore, the Tribunal held composite negligence. Even in the case of composite negligence, injured claimant is entitled to recover the compensation amount from any one of the joint tortfeser. Therefore, the Tribunal has committed error in fastening 50% liability on the owner and driver of the auto rickshaw. 17. Learned counsel for the insurance company strongly urged that the quantum of compensation determined by the tribunal is excessive and does not call for any enhancement by this Court. 18. On the other hand, learned counsel for the claimant submitted that the Tribunal committed a serious error in assessing the income of the injured, as he has lost his leg above knee. The quantum of compensation awarded on all the head is highly insufficient. Therefore, learned counsel submitted that the claimant is entitled for enhancement of compensation. It was also submitted that the claimant was a mason by profession and also an agriculturist. Therefore, learned counsel submitted that the notional income taken by the Lok Adalat for the relevant year is Rs.8,500/- to Rs.9,000/-. Therefore, learned counsel submitted that the claimant is entitled for enhancement of compensation. It was also submitted that the claimant was a mason by profession and also an agriculturist. Therefore, learned counsel submitted that the notional income taken by the Lok Adalat for the relevant year is Rs.8,500/- to Rs.9,000/-. PW-1 in his evidence has specifically stated that he is a skilled mason and was earning Rs.12,000/- per month. He was also earning Rs.5,000/- per month from agriculture. In the cross-examination, except suggestions made to him, nothing contrary is elicited to disbelieve his evidence and even the income stated by the claimant has not been specifically denied. Therefore, having regard to the facts and circumstances of the case and he evidence on record, a reasonable sum should have been assessed by the Tribunal as income. In the absence of documentary evidence, taking support of the notional figure i.e., normally taken in the Lok Adalat and considering the year in which the accident took place, we find that the income of the deceased ought to have been assessed at Rs.7,500/- per month. 40% of the monthly salary has to be added as he comes under the group of self employed person. Therefore, the monthly income of the injured is assessed at Rs.7,500/- (40% of 7,500=3000/-) Rs.10,500/-(7500+3000) per month. As regards pain and suffering, we find that the Tribunal has awarded lesser compensation as the claimant has admittedly suffered amputation to his right leg knee and was in the hospital for a considerable period of time. He has not only suffered pain and sufferings on account of the accident, he has also suffered further pain and suffering due to amputation. He must have undergone mental agony on account of the amputation. In a similar case, the Division Bench of this Court in the case of H.Basavanagouda @ Basava and Hussaini and connected matter in MFA No.23417 of 2013 c/w MFA No.20844 of 2013 relying on the decision of the Hon ble Supreme Court in the case of Mohan Soni v. Ram Avtar Tomar and others, (2012) ACJ 583 (Mohan Soni) wherein it has been held that on account of amputation of left leg, loss of earning capacity would sometimes be as high as 100% and in no case would be not less than 90%. He, therefore submitted that this Court may reckon the disability at 90% at least and enhance the compensation on the head of loss of future earning capacity as well as on other heads and has awarded Rs.1,00,000/- under the said head pain and suffering. Therefore, we enhance the compensation awarded on the head of pain and suffering from Rs.50,000/- to Rs.1,00,000/-. The Tribunal had awarded a sum of Rs.1,00,000/- towards loss of future happiness and amenities. We affirm the same as it is found to be just compensation. 19. In view of the re-assessment of the monthly income of the deceased, the loss of income during treatment period is taken as four months, 7500x4=30,000/- loss of income during treatment period. The Tribunal has awarded Rs.28,000/- towards incidental charges. The injured was on rest for a period of 3 months. Therefore, the incidental charges like attendant, food and nourishment should have been awarded at least at Rs.40,000/-. Having regard to the nature of the injury suffered and the treatment given, the petitioner is entitled for a sum of Rs.40,000/- from Rs.28,000/-. The Tribunal has assessed the medical expenses at Rs.1,00,000/-. On considering Exs.P10 and 11 which are prescription and medical bills which comes to Rs.85,774/-. Taking into consideration, the future medicines he might require, in all the Tribunal has awarded Rs.1,00,000/-. We affirm the same. As regards future medical expenses are concerned, the Tribunal has rightly awarded Rs.50,000/- and the same does not call for any enhancement. Nextly, under which head the petitioner is entitled for compensation is towards loss of income due to permanent disability suffered by him in the accident. The Tribunal has taken 50% disability. In fact, the Division Bench of this Court in MFA No.23417 of 2013 and connected matter has taken the disability at 90%. In the instant case, the petitioner is a mason by profession and an agriculturist. He would not be able to do this work any more except supervision of some construction work that too by wearing an artificial limb. Therefore, the Tribunal has committed an error in assessing the disability at 50%. 20. Pw-3 the doctor has also stated in his evidence regarding the disability which the claimant has to sufferer throughout his life. He on examining the claimant has deposed in his examination-in-chief as follows: 1. standing for long time not possible. 2. walking long distance not possible 3. 20. Pw-3 the doctor has also stated in his evidence regarding the disability which the claimant has to sufferer throughout his life. He on examining the claimant has deposed in his examination-in-chief as follows: 1. standing for long time not possible. 2. walking long distance not possible 3. squatting not possible. 4. standing on affected limb painful and difficult. 5. walking on uneven surface painful . 6. sitting cross legged not possible 7. climbing difficult. 8. lifting weight not possible. 9. doing laborious work not possible. The disability observed by the doctor is as follows: 1. restrictions of hip movements. 2. muscle wasting of left thigh. 3. above knee amputation of lt. femur. Further, he has relied on ALMCOI and WHO manuals to asses the disability of the claimant at 80% and the amputation is above the knee level. Therefore, we find it just and proper to take the percentage of disability at 80%. In the instant case, the monthly income of the injured is found to be Rs.10,500/- per month inclusive of future prospects. The age of the injured is found to be 32 years and the appropriate multiplier to the age group of 32 would be 16. Hence, the claimant would be entitled to compensation of Rs.16,12,800/- (10,500x12x80%x16) on the head of loss of future earnings as against Rs.6,24,000/- awarded by the Tribunal by assessing the disability at 50% resulting in awarding lesser compensation under the aforesaid head. 21. Accordingly, we re-assess the compensation as under: Pain and suffering Rs.1,00,000/- Enhanced by Rs.50,000/- Loss of amenities and unhappiness Rs.1,00,000/- Affirmed Loss of income during treatment Rs. 30,000/- Enhanced by Rs.4,000/- Incidental charges Rs. 28,000/- Affirmed Attendant charges, food, nourishment etc. Rs 40,000.- Awarded by this Court Medical expenses Rs. 1,00,000/- affirmed Future medical expenses Rs. 50,000/- Affirmed Loss of income due to disability Rs.16,12,800/- 9,88,800/- Total Rs.20,60,800/- 22. Accordingly, we answer point No.1 in the affirmative. In view of our finding on Point No.2, we find that respondent Nos.1 and 2 are jointly and severally liable to satisfy the award. Rash and negligent act of respondent No.1 is proved on the basis of the evidence and materials on record. Hence, the order of the Tribunal fastening liability of 50% on respondent No.3 is liable to be set aside and the same is accordingly, set aside. Rash and negligent act of respondent No.1 is proved on the basis of the evidence and materials on record. Hence, the order of the Tribunal fastening liability of 50% on respondent No.3 is liable to be set aside and the same is accordingly, set aside. Having regard to the facts and circumstances of the case and the evidence on record, we affirm the future rate of interest @ 9% as awarded by the Tribunal from the date of petition till the entire compensation amount is deposited. Accordingly, we pass the following order: Miscellaneous First Appeal No. 101452 of 2015 is allowed. Miscellaneous First Appeal No.101108 of 2015 is allowed in part. The judgment and award dated 16th January 2015 passed by the Fast Track Court II and Addl. MACT, Belagavi, in MVC No.330 of 2014 is modified. The claimant is entitled to compensation of reassessed compensation of Rs.20,60,800/-. Respondent No.3 before the Tribunal is absolved from the liability of satisfying the award. Respondent Nos.1 and 2 before the Tribunal are directed to satisfy the compensation now re-assessed by this Court with interest at 9% per annum, as awarded by the Tribunal, within six weeks from the date of receipt of a copy of this judgment. Out of the re-assessed compensation, 80% of the compensation shall be deposited in fixed deposit in the name of the claimant for a period of 5 years in any Nationalized Bank or Scheduled Bank of claimant s choice with liberty to withdraw the interest accrued on the said deposit from time to time. The remaining 20% shall be released to him. Pending applications, if any, stands disposed off.