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2020 DIGILAW 1512 (KAR)

Mohammad Shafi v. Laxmi N Kamath

2020-07-28

JYOTI MULIMANI

body2020
JUDGMENT Jyoti Mulimani, J. - Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. This is claimant's appeal seeking for enhancement of compensation and modification of the judgment and award dated 01.06.2012 passed in MVC No.423/2011 by the Motor Accidents Claims Tribunal, D.K.Mangalore, (hereinafter referred to as 'the Tribunal', for the sake of brevity). 3. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) for the injuries sustained by him in the road traffic accident that occurred on 17.01.2011. 4. It is the case of the claimant that he was working as a Driver in AL-Fareed General Land Transport at Dubai and earning a sum of Rs.40,000/- per month. On the fateful day i.e., on 17.01.2011 at about 10.00 a.m., he was proceeding in Honda Activa Scooter bearing registration No.KA-19V-107 as a pillion rider near Thokkottu Bus Stand in Mangalore Taluk. At that time, suddenly the driver of the tempo bearing registration No.KA-21-8645 drove the said Tempo in a rash and negligent manner and hit against the Honda Activa Scooter. Due to the impact, the claimant sustained grievous injuries. Immediately, he was shifted to Sahara Hospital, Thokkottu and after taking first aid, he was shifted to Thejaswini Hospital, Mangalore and he took treatment as inpatient in the said hospital from 17.01.2011 to 07.02.2011 and has undergone operation and was discharged. The claimant has stated that due to the accident and having sustained grievous injuries, he has suffered permanent disability. Hence, he is not in a position to attend to his routine work. He further urged that the accident occurred due to rash and negligent driving by the driver of the tempo and in that connection, the Ullal Police have registered case in Crime No.20/2011 against the driver of the tempo. The tempo is duly insured with the second respondent. Contending that he is entitled to damages on various heads to the extent of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) the claimant brought action by filing the claim petition before the Tribunal. 5. In response to the notices issued by the Tribunal, first respondent remained absent and she was placed ex parte. The tempo is duly insured with the second respondent. Contending that he is entitled to damages on various heads to the extent of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) the claimant brought action by filing the claim petition before the Tribunal. 5. In response to the notices issued by the Tribunal, first respondent remained absent and she was placed ex parte. The second respondent - Insurance Company filed its written statement inter alia contending that the claim petition is false, baseless and not maintainable and also denied the age, avocation and income of the claimant and also the manner in which the accident occurred. The Insurance Company further stated that the driver of the tempo was driving slowly and the rider of the Honda Active was guilty of violation of law and is responsible for the alleged accident. Therefore, the owner and the insured of the said vehicle are solely liable to pay the compensation. Further, contention was raised that the statutory requirement of Section 158(6) of Motor Vehicles Act, 1988, has not been complied with. The claimant being a tortfeasor and guilty of contributory negligence is not entitled to claim any compensation from the respondents. It is further contended that the driver of the tempo was not holding valid and effective driving licence as on the date of the accident. Thus, prayed for the dismissal of the petition. 6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration: "i. Whether the petitioner proves that the accident that occurred on 17-01-2011 at about 10-00 AM., near Thokkottu, new bus stand, Mangalore, was due to rash and negligent driving of the autorickshaw bearing registration No.KA-21-8645 by its driver? ii. Whether the respondent No.2 proves that the petitioner is guilty of contributory negligence? iii. Whether the petitioner further proves that he had sustained injuries as a result of accident in question? iv. Whether the petitioner is entitled for compensation? If so, how much and from whom? v. What order / award?" 7. In order to substantiate his case, claimant examined himself as PW.1, Dr.S.Adyanthaya as PW.2 and another witness - Mohammed Rafique, an eye witness to the accident was examined as PW.3 and produced 17 documents which were marked as Exs.P.1 to P.17. If so, how much and from whom? v. What order / award?" 7. In order to substantiate his case, claimant examined himself as PW.1, Dr.S.Adyanthaya as PW.2 and another witness - Mohammed Rafique, an eye witness to the accident was examined as PW.3 and produced 17 documents which were marked as Exs.P.1 to P.17. The second respondent has not lead any oral evidence, but produced the copy of the Insurance Policy, which came to be exhibited as Ex. R1. The Tribunal after considering the claim has awarded compensation of Rs.86,600/- together with interest at the rate of 6% per annum from the date of petition. Aggrieved by the judgment and award, the claimant has preferred this appeal seeking enhancement of compensation and modification of the judgment. The Insurance Company has not filed any appeal. 8. Sri.Nitesh Kumar Shetty, learned counsel for the claimant has appeared through video conferencing. Learned counsel submitted that the Tribunal has failed to appreciate the material evidence on record. He submitted that the judgment and award of the Tribunal is highly illegal, arbitrary and unreasonable. Next, he contended that the claimant has sustained grievous injuries to his right knee and right lateral tibial plateau fracture. He was treated as inpatient from 17.01.2011 to 07.02.2011. Thereafter, the claimant has taken treatment almost for a period of six months as out-patient. The Tribunal has awarded a sum of Rs.20,000/- under the head of 'pain and suffering'. Hence, he submitted that the compensation awarded on the above head is on the lower side. He has contended that he has spent lakhs of rupees towards medical expenses. But the Tribunal has granted very less compensation towards medical expenses. A further submission was made with regard to the disability. He contended that the claimant has sustained grievous injury on his right knee and there is disability of 10% to his right knee. Therefore, the claimant is not able to pursue his avocation on account of grievous injuries. The next argument in that regard is that the Tribunal has assessed the income of the claimant at Rs.6,000/- per month. It is urged that the claimant was working as a driver at Dubai and earning a sum of Rs.40,000/- per month. The claimant has produced salary certificate and also NRI Account Extract of his bank. On account of the injuries, he has lost his job at Dubai and now he is unemployed. It is urged that the claimant was working as a driver at Dubai and earning a sum of Rs.40,000/- per month. The claimant has produced salary certificate and also NRI Account Extract of his bank. On account of the injuries, he has lost his job at Dubai and now he is unemployed. Learned counsel submitted that the Tribunal has erred in calculating the monthly income of the claimant at Rs.2,400/-, by taking 1/3rd of 10% as percentage of the disability to the whole body. Lastly, he contended that the interest awarded by the Tribunal is on the lower side. The Tribunal has totally erred in awarding a very meager amount under the head 'loss of amenities and enjoyment of his life'. Therefore, he submitted that the award of the Tribunal calls for interference and accordingly, prayed for allowing of the appeal. 9. Per contra, Sri.Ashok.V learned counsel appeared in-person on behalf of Sri.M.Narayanappa, for respondent No.2. He contented that the rider of the Honda active is responsible for the accident and the accident occurred due to the rash and negligent driving of the rider of the motor cycle. It is also contended that the claimant has not proved that he was earning a sum of Rs.40,000/- per month. Next, he contended that the disability suffered by the claimant is due to the negligent act of the rider of the motor cycle. A further submission was made that the owner and the insurer of the motor cycle are necessary parties to the claim petition and they are liable to pay the compensation amount to the claimant. The driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident and hence, the Insurance Company of the offending vehicle is no way liable to pay the compensation amount. Lastly, he urged that the compensation awarded by the Tribunal is on the higher side. Therefore, learned counsel sought for dismissal of the appeal. 10. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration: i. Whether the judgment and award of the Tribunal would call for any interference? ii. What order? 11. Therefore, learned counsel sought for dismissal of the appeal. 10. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration: i. Whether the judgment and award of the Tribunal would call for any interference? ii. What order? 11. The fact that the claimant was proceeding as a pillion rider on the Honda Activa bearing No.KA-19V-107 near Thokkottu bus stand in Mangalore Taluk on 17.01.2011 at about 10.00 a.m., at that time, the driver of the tempo bearing No.KA-21-8645 came in rash and negligent manner and hit the motor cycle resulting in grievous injuries to the claimant. It has also been established that the claimant took treatment in the hospital Ex.P9 is the wound certificate, Ex.P10 is the discharge summary and Ex.P11 is the disability certificate. These documents would establish that the claimant took treatment at Tejasvini Hospital, Mangalore as an inpatient for about 22 days. The fact that the claimant took follow-up treatment has also been established. The claimant was aged 52 years at the time of the accident and he was working as a Driver at Dubai. Taking note of the aforesaid facts and also the oral and documentary evidence on record, the Tribunal assessed the whole-body disability at 10%. Dr.S.Adhyanthay, who treated the claimant was examined as PW-2. The Doctor has stated that the claimant suffered permanent disability to the extent of 10%. But the Tribunal has taken 1/3rd of 10% as percentage of the disability to the whole body. Learned counsel submitted that the Tribunal has erred in this context. 12. The grounds urged in the present appeal are mainly related to the consideration of monthly income, percentage of disability and quantum of compensation awarded by the Tribunal under various heads. The claimant has stated that he was working as a Driver at Dubai and was getting a salary of Rs.40,000/- per month. But the Tribunal has disbelieved the above contention with regard to the income mainly on the ground that the claimant has not produced the driving licence. On the basis of Ex.P12, the Tribunal came to the conclusion that the claimant was working as a Light Vehicle Driver in Al Fareed General Land Transport at Dubai. The Tribunal has also taken into consideration of the passport of the claimant. On the basis of Ex.P12, the Tribunal came to the conclusion that the claimant was working as a Light Vehicle Driver in Al Fareed General Land Transport at Dubai. The Tribunal has also taken into consideration of the passport of the claimant. On the basis of the documentary evidence on record, the Tribunal has assessed the income of the claimant at Rs.6,000/- per month. It is not in dispute that the claimant is a Driver. In the instant case, the accident took place in the year 2011. Taking into consideration of the normal scenario as exists in India, normally, a Driver would atleast earn a minimum salary of Rs.10,000/- to Rs.15,000/- per month. Having regard to the fact that the claimant was working as a Driver at Dubai and he would have earned atleast Rs.10,000/- per month. Hence, there is no impediment for this Court to take into consideration the monthly income of the claimant at Rs.10,000/- (Rupees Ten Thousand only). 13. Insofar as the disability aspect is concerned, the Tribunal after assessing the material evidence on record has rightly determined the percentage of disability to the extent of 10% to the whole body. But, the Tribunal has taken 1/3rd of 10% as the percentage of the disability to the whole body. Ordinarily, 1/3rd of the disability assessed would be taken as the disability to the whole body, but there is no inhibition to differ based on the material evidence available on record. In the instant case, the Doctor has clearly stated the percentage of disability is at 10% to the right lower limb. Having regard to the fracture of right tibial plateau, this Court is of the view that the percentage of disability to the extent of 10% as assessed by the Doctor is just and proper. Hence, the percentage of disability could be retained at 10% instead of taking 1/3rd of the disability assessed. In view of re-determination of the monthly income of the claimant at Rs.10,000/- (Rupees Ten Thousand only), applying the multiplier 11', considering the age of the claimant as 52 with the disability at 10%, the 'loss of future earning due to disability' would be Rs.10,000 X 12 X 11 X 10% = Rs.1,32,000/- (Rupees One Lakh Thirty Two Thousand only). On the head of 'pain and sufferings', the Tribunal has awarded Rs.20,000/-. On the head of 'pain and sufferings', the Tribunal has awarded Rs.20,000/-. Since the claimant was treated for the right lateral tibial plateau fracture and taking into consideration of the injuries sustained by the claimant, this Court deem it appropriate to award Rs.45,000/- (Rupees Forty Five Thousand only) towards 'pain and sufferingd' as against Rs.20,000/- (Rupees Twenty Thousand only) awarded by the Tribunal. The amount of Rs.35,000/- (Rupees Thirty Five Thousand only) is awarded towards 'medical expenses' as against Rs.25,000/- (Rupees Twenty Five Thousand only) awarded by the Tribunal. Similarly, this Court deem it appropriate to award Rs.5,000/- (Rupees Five Thousand only) towards 'attendant, nourishment & conveyance charges' as against Rs.3,000/- (Rupees Three Thousand Only) awarded by the Tribunal. The evidence of Doctor would indicate that there is a restriction of movement to the extent of 15 degree to the right knee. Because of this restriction, the claimant is unable to bend his right knee to the fullest extent. Therefore, this Court deem it appropriate to award a sum of Rs.10,000/- (Rupees Ten Thousand only) towards 'loss of amenities and future happiness' as against Rs.5,000/- (Rupees Five Thousand only) awarded by the Tribunal. It is not in dispute that the accident occurred on 17.01.2011 and claimant has suffered the above mentioned injuries. It is also not in dispute that the claimant was aged 52 years. Taking into consideration the age of the claimant, he would have taken rest for a minimum period of three months and consequently, would have suffered loss of income for a minimum period of three months. This Court has re-determined the monthly income of the claimant at Rs.10,000/- p.m. Therefore, this Court deem it appropriate to award a sum of Rs.30,000/- (Rs.10,000X3=30,000/-), towards 'loss of income during laid up period'. 14. This Court has re-determined the monthly income of the claimant at Rs.10,000/- p.m. Therefore, this Court deem it appropriate to award a sum of Rs.30,000/- (Rs.10,000X3=30,000/-), towards 'loss of income during laid up period'. 14. Accordingly, this Court re-determine the compensation as under: - S. No. Particulars Compensation awarded by this Court (in Rs.) 1 Pain and sufferings 45,000/- 2 Medical expenses 35,000/- 3 Attendant, nourishment & conveyance charges 5,000/- 4 Loss of income during laid up period [Rs.10,000/- x 3] 30,000/- 5 Loss of future earning due to disability [Rs.10,000/- x 12 x 11' x 10%] 1,32,000/- 6 Loss of amenities and comfort 10,000/- Total: 2,57,000/- Less: Compensation awarded by the Tribunal 86,600/- Enhanced compensation awarded by this Court 1,70,400/- Having regard to the facts and circumstances of the case and the prevailing rate of interest during the relevant time, this Court deems it appropriate to award interest at the rate of 6% per annum on the enhanced compensation amount from the date of claim petition till complete realization. 15. Hence, the following: ORDER 1. Appeal is allowed in part and the judgment and award of the Tribunal is modified to the extent stated hereinabove. 2. The claimant is entitled for enhanced compensation of Rs.1,70,400/- (Rupees One Lakh Seventy Thousand Four Hundred only) with interest at the rate of 6% per annum from the date of claim petition till the date of complete realization. 3. The second respondent shall deposit the enhanced compensation amount together with interest within a period of six weeks from the date of receipt of a copy of this judgment. 4. Registry is hereby directed to draw up the award accordingly. 5. Office is directed to transmit the original records to the concerned Tribunal forthwith. 6. The amount in deposit, if any, shall be transmitted to the concerned Tribunal. 7. No order as to costs.