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2019 DIGILAW 1431 (KAR)

H. Padmanabha Pai v. Pradeepchandra Shetty

2019-06-25

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal. 2. This appeal is directed against the judgment and award dated 28.01.2013 rendered by the Senior Civil Judge and Member, Addl.MACT, Kundapura in MVC No.622/2011. The factual matrix of the appeal is as under: 3. It is evident in the claim petition that on 12.02.2011 at about 3.30 p.m. when the petitioner was traveling as a Rider in T.V.S. Scooter bearing Regn.KA 20-X/3518, the driver of the Ford Icon Car bearing Regn.No.KA-20-N/875 driven by the first respondent came from Bidkalkatte side in a very high speed, in a rash and negligent manner and dashed against the Scooter of the petitioner and caused accident near Haladi Junction, Kundapura Taluk. Due to the said impact, the petitioner fell down and sustained grievous injuries. After the accident, he was taken to NRAM Hospital, Koteshwara, and he took treatment as an inpatient. He has sustained major fracture injuries to his left leg. Prior to injuries he was hale and healthy and was working as Pigmy Collector under Belve Vyavasaya Seva Sahakari Bank Niyamitha, Haladi Branch and also doing other business and was earning monthly income not less than Rs.12,000/-. Due to the accidental injuries, he has suffered permanent disablement and permanent disfiguration. On these grounds, petitioner filed the claim petition before the Tribunal seeking compensation. 4. After service of notice, respondents entered appearance through their respective counsel. Second respondent filed written statement denying the petition averments and sought for dismissal of the appeal. 5. Based on pleadings, the Tribunal framed the issues. In order to substantiate his claim, petitioner got examined himself as PW.1 and got examined Dr.Vivek K.S. as PW.2 and got marked Exs.P1 to P51. After hearing arguments of learned counsel for the parties and on appreciation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.2,03,600/-. Further, it held that the petitioner has contributed 50% of negligence to the accident and he is entitled for 50% of compensation at Rs.1,01,800/- with interest @ 6% p.a. from the date of petition till deposit. Being not satisfied with the quantum of compensation awarded by the Tribunal and also on the question of contributory negligence, the appellant/petitioner has preferred the present appeal on various amongst other grounds. Being not satisfied with the quantum of compensation awarded by the Tribunal and also on the question of contributory negligence, the appellant/petitioner has preferred the present appeal on various amongst other grounds. 6. Learned counsel for the appellant contends that the Tribunal ought to have awarded higher compensation having regard to the injuries sustained by the claimant. The compensation awarded towards pain and suffering having as against the nature of injuries suffered by the appellant is on lower side and it needs further enhancement. Further, the compensation awarded towards medical expenses, conveyance, special diet, attendant charges and food and nourishment are very much on lower side and the same has to be enhanced. Further, the monthly income assessed by the Tribunal at Rs.9,500/- is on lower side whereas the petitioner was working as a Pigmy Collector and had income of Rs.12,000/- per month. The compensation awarded towards the loss of income during treatment is also on lower side as against the nature of injuries and period of treatment taken by the appellant and the same has to be enhanced suitably. Further, the Tribunal erred in not properly assessing the disability factor and has also not appreciated the medical evidence in that regard and awarded very meager compensation towards loss of future earning capacity. 7. It is further contended by learned counsel for the appellant that the Tribunal without any reasons and without verifying the supported documents has fixed the contributory negligence to the extent of 50% on behalf of the appellant which is arbitrary and against to principles of natural justice. Though the Tribunal held that the driver of the offending car was not holding valid and effective driving licence at the time of the accident and answering the relevant issue in negative, could not have fixed the contributory negligence on the part of the appellant. On all these grounds, learned counsel for the appellant seeks for enhancement of compensation by allowing the present appeal. 8. Per contra, Sri S.V.Hegde Mulkhand, learned counsel for the insurance company denies the age, occupation, income and expenses incurred, and the rash and negligent manner of driving by the driver of the offending car. He contends that the driver of the offending car did not possess valid and effective driving licence to drive the vehicle. On the date of alleged accident, the offending vehicle was not covered under policy of insurance. He contends that the driver of the offending car did not possess valid and effective driving licence to drive the vehicle. On the date of alleged accident, the offending vehicle was not covered under policy of insurance. He contends that the alleged accident as averred by the petitioner has not occurred and in order to make wrongful gain, the claim petition was filed. He contends that as per Ex.P3 spot mahazar, the accident spot showing in the middle of the junction and the width of Shankarnarayana road is 16 feet. PW.1 also admitted that the accident occurred in the junction. He contends that the Tribunal while giving finding on issue no.1, has rightly held that as the accident occurred in the middle of the junction, it is evident that petitioner was not proceeding cautiously and he has also contributed negligence to the accident Further, the finding of the Tribunal that as the accident occurred in the middle of the junction due to equal contribution of negligence of the petitioner, held negligence on both of them in the ratio of 50:50. The said finding of the Tribunal in the facts and circumstances of the case is just and proper. He further contends that the Tribunal on appreciation of entire oral and documentary evidence on record, has awarded just and fair compensation and it does not call for interference of this Court and accordingly, sought for dismissal of the appeal. 9. Having regard to the strenuous contentions as taken by the learned counsel on both sides, it is relevant to state that PW.1 in his evidence has stated that due to the rash and negligent manner of driving of the Ford Icon car bearing Regn.No.KA-20-N/875 by its driver, the accident occurred and he sustained grievous injuries. In support of his contention, he has produced Ex.P1 to Ex.P5 which are FIR, complaint, spot mahazar, IMV report, police notice and charge sheet. 10. According to PW.2 who is a Doctor and Ex.P.49 - wound certificate, the petitioner has sustained comminuted fracture inter condylar of left tibia and undergone surgery. PW.1 in his evidence has stated that he was aged 46 years and working as a Pigmy Collector and earning Rs.12,000/- p.m. In order to prove the income, he has produced certificate issued by the Vyavasaya Seva Sahakari Bank Ltd., as per Ex.P42 and Ex.P48 copy of the pass book. PW.1 in his evidence has stated that he was aged 46 years and working as a Pigmy Collector and earning Rs.12,000/- p.m. In order to prove the income, he has produced certificate issued by the Vyavasaya Seva Sahakari Bank Ltd., as per Ex.P42 and Ex.P48 copy of the pass book. In the absence of non-examination of the author of the said documents, the Tribunal held the income of the petitioner at Rs.9,500/- p.m. But having regard to the occupation of the petitioner as Pigmy Collector and the certificate issued in this regard by the Vyavasaya Seva Sahakari Bank Ltd., and so also, the copy of the pass book at Ex.P42 and P48, it is pertinent to note that only due to non-examination of the author of the said documents, the said documentary evidence cannot be disbelieved. The Tribunal ought to have considered the documentary evidence in this regard. Therefore, I deem it just and proper to take Rs.12,000/- as the monthly income of the petitioner. 11. Further, it is pertinent to note that PW.1 in his evidence has stated that he has sustained communited inter condylar fracture left tibia and he has pain in left knee, difficulty to stand and walk for long and to climb the staircase, difficulty to sit and squat cross legged, tenderness at fracture site, swelling, wasting of qeeps and calf muscles and knee flexion limited 15 degrees and extension limited 10 degrees and the said evidence is corroborated by PW.2 Doctor. As per Ex.P50- case file, the Doctor has recorded history of Rheumatic fever suffered by the petitioner. Considering all these aspects, I deem it appropriate to take 7% permanent disability as against at 5% assessed by the Tribunal. Accordingly, the compensation towards loss of future earning capacity is re-worked out as under: Rs.12,000 x 12 x 13 x 7% = Rs.1,31,040/- 12. The Tribunal has awarded Rs.25,000/- towards pain and sufferings and Rs.10,000/- towards loss of amenities. According to PW.2 who is a Doctor and as per Ex.P49 wound certificate, the petitioner has sustained comminuted fracture inter condylar of left tibia and has undergone surgery. Having regard to the nature of injuries sustained by the petitioner, the compensation awarded by the Tribunal under these heads appears to be on lower side. According to PW.2 who is a Doctor and as per Ex.P49 wound certificate, the petitioner has sustained comminuted fracture inter condylar of left tibia and has undergone surgery. Having regard to the nature of injuries sustained by the petitioner, the compensation awarded by the Tribunal under these heads appears to be on lower side. Hence, it is just and proper to award another sum of Rs.15,000/- towards pain and sufferings and Rs.10,000/- towards loss of amenities in life. 13. Due to the sustenance of fracture and as A/K slab was applied, the petitioner may have taken rest for 2 to 3 months to recover from the same. Hence, a sum of Rs.36,000/- (Rs.12,000 x 3) is awarded towards loss of income during treatment period as against Rs.19,000/- awarded by the Tribunal. 14. Further, having regard to the evidence of PW.2 Doctor, for removal of the implants, the petitioner may incur expenses and he has to take rest for one month. Accordingly, a sum of Rs.10,000/- is awarded towards future medical expenses in addition to Rs.10,000/- awarded by the Tribunal. However, the compensation awarded by the Tribunal under other heads appears to be just and reasonable and the same does not call for interference. 15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Loss of future earning capacity 74,100 1,31,040 Pain and suffering 25,000 40,000 Loss of amenities 10,000 20,000 Loss of earning during treatment 19,000 36,000 Medical expenses 57,500 57,500 Future medical expenses 10,000 20,000 Conveyance and attendant charges 8,000 8,000 Total 2,03,600 3,12,540 16. Now coming to the aspect of contributory negligence, the Tribunal has held that as the accident occurred in the middle of the junction due to equal contributory negligence of the petitioner and the first respondent being the driver of the offending car, the accident has occurred. Accordingly, the Tribunal held the negligence in the ratio of 50 : 50. However, at a cursory glance of evidence of PW.1 as well as Ex.P3 spot mahazar is concerned, it requires re-appreciation of the entire evidence on record to assess the negligence on the part of petitioner as well as the driver of the offending vehicle at the relevant point of time. However, at a cursory glance of evidence of PW.1 as well as Ex.P3 spot mahazar is concerned, it requires re-appreciation of the entire evidence on record to assess the negligence on the part of petitioner as well as the driver of the offending vehicle at the relevant point of time. The Tribunal has fixed the contributory negligence on the petitioner only on the ground that PW.1 has not explained as to why the accident occurred in the middle of the junction. As per Ex.P3 spot mahazar, the front middle bumper and number of the car was damaged and the front side of the TVS and left side body was damaged. According to the petitioner the first respondent came from Bidkalkatte i.e from west to eastern side. The first respondent was proceeding from the left side of the petitioner. As per the traffic rules the first respondent ought to have given preference to the right hand traffic and allowed the petitioner to pass the junction. Keeping in view this oral and documentary evidence available on record and the contentions as taken by the learned counsel for the appellant so also, learned counsel for the insurance company, it would be just and proper, if contributory negligence of the petitioner is reduced to 25% as against 50% held by the Tribunal. Hence, the negligence is taken in the ratio of 75 : 25 Thus, in all, the appellant/claimant is entitled to a total compensation of Rs.3,12,540/- as against Rs.2,03,600/- awarded by the Tribunal. After deducting 25% of the contributory negligence on the part of the petitioner, the enhanced compensation would come to Rs.2,34,405/-. For the reasons and findings as stated above, I proceed to pass the following: ORDER The appeal filed by the appellant/claimant is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.2,34,405/- with interest 15 @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award dated 28.01.2013 passed by the Tribunal in MVC No.622/2011, is modified accordingly. Respondent - Insurance Company shall deposit the compensation enhanced by this Court, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. Office to draw the decree accordingly.