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2020 DIGILAW 1095 (KAR)

Babajan v. K. Ganapati Kamat

2020-06-16

S.G.PANDIT

body2020
JUDGMENT S G Pandit, J. - The claimant is before this Court not being satisfied with the quantum of compensation awarded and aggrieved by saddling of 30% negligence on the claimant under the judgment and award dated 13.09.2011 in MVC No.118/2010 on the file of the Fast Track Court-III, Dharwad and praying for enhancement of compensation. 2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by the claimant in a road traffic accident. It is stated that on 04.08.2009 when the claimant was traveling as passenger in a bus bearing No.KA-25/D-66 and after alighting from the bus the claimant was proceeding and the driver of the bus drove the same in a rash and negligent manner and dashed against the claimant. Immediately he was taken to the District Hospital, Dharwad and he was inpatient for one moth. It is stated that the claimant was doing centering work and was earning Rs.6,000/- p.m. He was aged about 44 years as on the date of the accident. 3. On issuance of notice, respondent No.1 failed to appear before the Tribunal and he was placed exparte. Respondent No.2 insurer filed its objection and denied petition averments. Respondent no.2 also denied rash and negligent driving of the bus driver and also contended that the driver of the vehicle was not holding driving license as on the date of the accident. 4. The claimant examined himself as PW.1 and also examined PW.2 doctor apart from marking Exs.P.1 to P.10. Respondent-Insurance Company marked Ex.R.1 insurance policy. 5. The Tribunal on careful scrutiny of the material on record, awarded total compensation of Rs.77,980/- and saddled contributory negligence to an extent of 30% on the claimant. The claimant aggrieved by saddling of 30% contributory negligence and praying for enhancement of compensation is before this Court in this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the material on record. 7. The learned counsel for the appellant would submit that the Tribunal committed grave error in saddling 30% of contributory negligence on the claimant in the absence of examining the driver of the bus. The respondent-Insurance Company failed to prove the negligence on the part of the claimant and in that circumstances, the Tribunal ought not to have saddled 30% contributory negligence on the claimant. The respondent-Insurance Company failed to prove the negligence on the part of the claimant and in that circumstances, the Tribunal ought not to have saddled 30% contributory negligence on the claimant. It is his submission that the accident occurred solely due to the negligence of the driver of the bus who ought to have moved the bus carefully after alighting the passengers. Thus, he prays for setting aside that portion of the judgment by which the Tribunal saddled 30% contributory negligence. 8. Further, the learned counsel submitted that the compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation. It is his submission that the Tribunal erroneously assessed the income of the claimant at Rs.3,000/- p.m. which needs to be enhanced. It is further submitted that the compensation awarded on the other heads are also on the lower side. According to him, the Tribunal has assessed the whole body disability at 10% which is proper and correct. Thus, he prays for allowing the appeal. 9. Per contra, the learned counsel for the Insurance Company would submit that the Tribunal has rightly saddled 30% contributory negligence on the claimant. It is submitted that after alighting from the bus the claimant ought to have walked on the Kachha road but instead of that he proceeded to walk on the tar road which resulted in the accident. Further, the learned counsel submits that there is no material to establish the income of the claimant. Therefore, the Tribunal has rightly assessed the notional income at Rs.3,000/- p.m. which also needs no interference. Learned counsel further submits that the Tribunal has erroneously assessed the whole body disability of the claimant at 10%. According to him there is no material whatsoever to come to the conclusion that the claimant has suffered 10% whole body disability. He invites attention of this Court to Ex.P.8 disability certificate and Ex.P.9 case sheet. According to him Ex.P.8 would not contain any seal of the hospital and also it would not give correct picture of the disability. The doctor in his main examination has stated that the claimant has suffered 10% disability to particular limb, whereas in the cross-examination it is stated that the claimant has suffered 10% whole body disability which cannot be believed. The doctor in his main examination has stated that the claimant has suffered 10% disability to particular limb, whereas in the cross-examination it is stated that the claimant has suffered 10% whole body disability which cannot be believed. Thus, he prays that the disability be assessed at 3.3% which is 1/3rd of the disability as stated by the doctor. 10. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration: 1. Whether the Tribunal is justified in saddling 30% of contributory negligence on the claimant/appellant? 2. Whether the claimant would be entitled for enhanced compensation? 11. The answer to the above points would be in the negative and affirmative respectively for the following reasons: 12. The accident which had taken place on 04.08.2009 involving bus bearing No.KA-25/D-66 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant is before this Court aggrieved by saddling of 30% contributory negligence and praying for enhancement of compensation. It is the case of the claimant that on alighting the bus he was moving towards Sattur village and that the bus started moving in a rash and negligent manner and dashed to the claimant. Ex.P.3 panchanama would indicate that the width of the road 25 feet. The bus was stopped on the edge of the road. It also indicates that there was 4 feet kachha road on either side of the road. After alighting the passengers the driver of the bus ought to have proceeded further cautiously. If the driver of the bus has proceeded cautiously the accident would not have taken place. Moreover, the driver of the bus is not examined to say that the claimant came in the way of the bus. In the absence of evidence of the driver of the bus, the Tribunal only on the basis of Ex.P.3 panchanama could not have saddled contributory negligence on the claimant to an extent of 30%. Thus, the said finding is set aside. 13. The accident is of the year 2009. In the absence of evidence of the driver of the bus, the Tribunal only on the basis of Ex.P.3 panchanama could not have saddled contributory negligence on the claimant to an extent of 30%. Thus, the said finding is set aside. 13. The accident is of the year 2009. The claimant states that he was doing centering work and earning more than Rs.6,000/- p.m. but the Tribunal assessed the notional income of the claimant at Rs.3,000/- p.m. In the absence of any material to establish the income of the claimant this Court and the Lok-Adalat while settling the accident claims of the year 2009 would normally assess the notional income at Rs.5,000/-. In the instant case also in the absence of any material to establish the income of the claimant, notional income is assessed at Rs.5,000/- p.m. 14. The doctor who is examined as PW.2 is not a treated doctor. In his evidence in chief at para 5 he has stated as follows: "5. I state that, in my opinion the total disability for Mr.Babajan Tamboli is around 10%. (Ten Percent) to the left lower limb and it is permanent in nature." Whereas, in the cross-examination with reference to Ex.P.8, he sates as follows: 15. Reading of the above evidence and crossexamination of PW.2 would indicate that there is contradiction between the evidence stated by the PW.2 in his chief and cross-examination. On perusal of Ex.P.8, it could be seen that Ex.P.8 of District hospital, Dharwad would not bear any seal of the hospital. It also does not disclose the disability with regard to the fracture sustained by the claimant. Hence, Ex.P.8 cannot be considered as disability certificate. Taking note of the statement of PW.2 doctor in his chief that the claimant has suffered 10% disability to the left lower limb, the disability could be assessed at 1/3rd of the same, which would be 3.3%. Thus, the disability is reduced from 10% to 3.3%. The claimant was inpatient for more than 15 days and looking to the injuries sustained, treatment taken, I am of the view that the claimant would have been out of employment for minimum of three months. Therefore, he would be entitled for loss of income during laid up period for three months. The claimant was inpatient for more than 15 days and looking to the injuries sustained, treatment taken, I am of the view that the claimant would have been out of employment for minimum of three months. Therefore, he would be entitled for loss of income during laid up period for three months. The compensation awarded on the head of loss of amenity at Rs.10,000/- is on the lower side when compared to the injuries suffered and treatment taken by the claimant. Hence, another Rs.10,000/- is awarded under the said head. Thus, the claimant would be entitled for the following modified compensation: Towards pain and suffering : Rs. 25,000 Towards medical expenses : Rs. 5,000 Towards transportation and Nutrition charges : Rs. 15,000 Towards loss of future earning capacity (5,000x12x14x3.3%) : Rs. 27,720 towards loss of amenities : Rs. 20,000 towards loss of income during treatment period (5,000x3) : Rs. 15,000 Total : Rs. 1,07,720 16. In the result, I proceed to pass the following: ORDER 1. The appeal filed by the claimant is allowed in part. 2. Contributory negligence of 30% saddled on the claimant is set aside. 3. The judgment and award of the Tribunal is modified by awarding compensation of Rs.1,07,720/- with interest at 6% per annum from the date of petition till the date of realization. 4. Respondent Insurance Company is directed to deposit the entire compensation amount within six weeks from the date of receipt of a certified copy of this judgment. 5. The deposit and apportionment of the enhanced compensation shall hold good as per the order of the Tribunal. 6. Draw the modified award accordingly.