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2020 DIGILAW 1082 (KAR)

Roopesh Shivanand Govekar v. Dhanajaya

2020-06-15

S.G.PANDIT

body2020
JUDGMENT S.G. Pandit, J. - The claimant is in appeal not being satisfied with the quantum of compensation as well as fastening of contributory negligence to an extent of 30% under the judgment and award dated 18.02.2011 in MVC No.186/2009 on the file of the II Additional MACT, Karwar and praying for enhancement of compensation by setting aside the impugned judgment with regard to contributory negligence. 2. Brief facts of the case are that the claimant filed claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that the claimant was proceeding in a motorcycle bearing No.KA-30/H-5317 towards Sadashivgad and when the motorcycle reached Savorpoi cross, tipper lorry bearing No.KA-30/7964 driven by its driver in a rash and negligent manner dashed to the motorcycle of the claimant, due to which both the claimant as well as the pillion rider sustained injuries. It is stated that the claimant was inpatient for 18 days in Tejaswini hospital, Mangaluru. The claimant was working as coolie and was earning Rs.6,000/- p.m. 3. On issuance of notice, the insurer appeared before the Tribunal and filed its statement. It contended that the accident occurred due to the rash and negligent act of the rider of the motorcycle and there was no negligence on the part of the driver of the offending tipper lorry. The insurer of the motorcycle contended that the accident occurred exclusively due to the negligence of the driver of the tipper lorry. 4. The claimant examined himself as PW.1 apart from examining doctor PW.2 and got marked documents as Exs.P.1 to P.16. No evidence is let in by the respondent Insurance Company. 5. The Tribunal on consideration of the entire material on record, awarded total compensation of Rs.2,21,000/- with interest at the rate of 6% p.a. While awarding the above compensation, the Tribunal assessed the income of the injured at Rs.3,000/- p.m. and assessed the whole body disability at 8% and fastened 30% of contributory negligence on the claimant. Aggrieved by the same, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the trial court records. 7. Aggrieved by the same, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the trial court records. 7. The learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side and the income assessed by the Tribunal at Rs.3,000/- p.m. is also on the lower side. He submits that the accident is of the year 2009 and the Tribunal ought to have taken minimum notional income at Rs.5,000/-. He further submits that the Tribunal failed to award proper compensation on the other heads. It is his submission that the Tribunal has failed to award any compensation on the head of loss of amenity and also submits that even though the claimant had made available the bills amounting to Rs.82,802/-, the Tribunal committed an error in awarding Rs.80,000/- on the head of medical treatment including food and nourishment. Thus, he prays for enhancing the quantum of compensation. 8. Further, the learned counsel submits that the Tribunal committed an error in fastening the liability to an extent of 30% holding that the claimant is also responsible for the occurrence of the accident. He submits that the Tribunal could not have come to the conclusion that the claimant is also responsible towards the occurrence of the accident relying on Ex.P.2. The learned counsel taking through Ex.P.2 submits that the left side of the lorry was damaged and as per Ex.P.2 mahazar if both the vehicles were proceeding in the same direction, the rider of the motorcycle was on the left side and the tipper lorry had dashed the motorcycle and the left side bumper of the lorry was damaged, which clearly establishes that the accident had taken place due to the negligence of the driver of the tipper lorry. Thus, he prays for allowing the appeal. 9. Per contra, the learned counsel for the respondent Insurance Company would submit that the income assessed by the Tribunal is proper and correct since no material is produced to establish the income of the claimant. Further, with regard to the contributory negligence, the learned counsel submits that the Tribunal has properly come to the conclusion based on the material on record that the claimant was also responsible for 30% contributory negligence. Further, with regard to the contributory negligence, the learned counsel submits that the Tribunal has properly come to the conclusion based on the material on record that the claimant was also responsible for 30% contributory negligence. He also invites attention of this Court to Ex.P.2 mahazar and submits that both the vehicles were moving in the same direction. As such, the Tribunal has rightly fastened the liability to an extent of 30% on the rider of the motorcycle. Thus, he prays for dismissal of the appeal. 10. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal: 1. Whether the Tribunal is justified in fastening contributory negligence to an extent of 30% on the appellant, rider of the motorcycle? 2. Whether the income assessed by the Tribunal at Rs.3,000/- p.m. is proper and correct? 3. Whether the claimant would be entitled for enhanced compensation? 11. The answer to the above points No.1 and 2 would be in the Negative and point No.3 is in the affirmative for the following reasons: 12. The accident that occurred on 02.06.2009 involving motorcycle bearing No.KA-30/H-5317 and tipper lorry bearing No.KA-30/7964 is not in dispute in this appeal. The claimant's appeal is for enhancement of compensation and questioning saddling of contributory negligence to an extent of 30%. The claimant submits that the Tribunal committed an error in fastening the contributory negligence at 30% on him. Admittedly, the road width was 15 feet and on either side of the road 2 feet kachha road was existing. As per Ex.P.2 mahazar both the vehicles were proceeding in the same direction and the motorcycle was on the left side of the road. If that is taken note of, the lorry which dashed the motorcycle was damaged on the left side of the front bumper which means due to the rash and negligent driving of the driver of the lorry the accident had taken place. The Tribunal by erroneous reading of Ex.P.2 and the version of the claimant in the petition, wrongly come to the conclusion that the rider of the motorcycle was also responsible for the accident and fastened 30% of liability on the claimant. The Tribunals finding that non production of spot sketch leads to adverse inference is not correct in view of Ex.P.2 spot mahazar. The Tribunals finding that non production of spot sketch leads to adverse inference is not correct in view of Ex.P.2 spot mahazar. Thus, I hold that the Tribunal committed an error in saddling contributory negligence to an extent of 30% on the claimant. Thus, I hold that the respondents No.1 and 2 are jointly and severally liable to pay the compensation. 13. The Tribunal assessed the income of the claimant at Rs.3,000/- p.m. which is on the lower side. The claimant stated that he was doing coolie work and was earning Rs.200/- per day which would be Rs.6,000/- p.m. This Court and the Lok-Adalat in the absence of any material to establish the income while settling the accidental claims of the year 2009 would normally asses the notional income at Rs.5,000/- p.m. In the instant case, in the absence of any material to establish the income of the claimant, it would be appropriate to assess the notional income at Rs.5,000/- p.m. The claimant has suffered fracture of right tibia and fibula and he was inpatient for 18 days and he has undergone operation. Looking to the injuries sustained by the claimant and the medical records and the evidence of PW.2 doctor, I am of the view that the claimant would be entitled for compensation of Rs.30,000/- on the head of loss of amenity and Rs.15,000/- on the head of food and nourishment. The Tribunal assessed the disability of the claimant at 8% which is not disturbed. Thus, the claimant would be entitled for the following modified compensation: Towards pain and agony Rs. 35,000 Towards loss of amenity Rs. 30,000 Towards medical expenses Rs. 80,000 Towards food and nourishment Rs. 15,000 Towards future medical expenses Rs. 15,000 Towards loss of income during Laid up period (8 x 5,000) Rs. 40,000 Towards loss of future income (5,000 x 12 x 18 x 8%) Rs. 86,400 Towards conveyance Rs. 15,000 Total Rs.3,16,400 14. The claimant would be entitled for total compensation of Rs.3,16,400/- as against Rs.2,21,000/- awarded by the Tribunal with interest at the rate of 6% p.a. 15. Accordingly, the appeal is allowed in part. 16. The apportionment and deposit would be as ordered by the Tribunal. 17. The respondent-Insurance Company to deposit the entire award amount within a period of six weeks from the date of receipt of a certified copy of this order.