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2020 DIGILAW 162 (KAR)

E. Raghunatha v. T. H. Shivakumar And Others

2020-01-20

H.T.NARENDRA PRASAD

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JUDGMENT H.T. Narendra Prasad, J. - This appeal is filed by the claimant challenging the judgment and award dated 18.12.2014 passed by the Court of Fast Track Court, Tumkur in MVC 1257/2011. 2. Brief facts of the case: On 30.08.2011 at about 7.30 p.m. the claimant was proceeding on his motor bike Yamaha bearing No. CTR-2875 from Hanumanthapura to his village Vaddarahalli on NH4 service road near RR Restaurant on the side of the road and at that point of time, one JCB bearing No. KA-06-M-8389 came from Satyamangala side towards Hanumanthapura in a rash and negligent manner and dashed against the petitioner, causing the accident. As a result of the accident, the claimants right leg was crushed and broken and the hip was dislocated and he fell down on the road with heavy bleeding, sustaining multiple fractures and was immediately shifted to Aditya Orthopedic and Trauma Centre, Tumkur and was admitted as inpatient and the crushed right leg was amputed and dislocated hip was operated and he was in patient for about 30 days. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW-1, and Dr. T.V. Tyagaraj, as PW-2, and submitted 71 documents. On the other hand, the Insurance Company examined one witness as RW-1 and produced 1 document. After appreciation of the evidence, the Tribunal granted compensation of Rs. 2,16,811/- with interest at 6% p.a. after deducting 50% negligence on the part of the claimant and fastened liability on the owner of the offending vehicle. Being aggrieved by the same, the present appeal is filed. 3. The learned counsel for the claimant has raised the following contentions: Firstly, at the time of accident, the claimant was traveling on the left side of the road cautiously, but the driver of the JCB came in a rash and negligent and caused accident. Therefore, the Tribunal is not justified in holding contributory negligence on the part of the claimant and driver of the JCB at the rate of 50% each. Secondly, the Division Bench of this Court in the case of Hanamareddi v. Govindaraddi S Shindal reported in 2019 Supreme (Kar) 613 in a similar circumstances has held that the Insurance Company is liable to pay compensation with liberty to recover the same from the owner of the offending vehicle. Secondly, the Division Bench of this Court in the case of Hanamareddi v. Govindaraddi S Shindal reported in 2019 Supreme (Kar) 613 in a similar circumstances has held that the Insurance Company is liable to pay compensation with liberty to recover the same from the owner of the offending vehicle. Thirdly, the claimant claims that he was doing agricultural work and earning Rs. 8,000/- per month, but the Tribunal has assessed the income of the claimant as merely as Rs. 3,500/- p.m. Fourthly, PW-2 has deposed that the claimant has suffered 100% disability to the right leg and 50% disability whole body. But the Tribunal has taken the whole body disability at 34% while calculating the loss of future income. Fifthly, the compensation awarded by the Tribunal under the head of loss of amenities is also on the lower side. Hence, the learned counsel for the claimant prays for allowing the appeal. 4. Per contra, the learned counsel for the Insurance Company has raised the following counter-contentions: Firstly, the Tribunal after verifying the records has rightly held that the accident has occurred due to contributory negligence on the part of both the claimant as well as the driver of the JCB. Secondly, the driver of the JCB was not having valid driving licence to drive the HGV and he was possessing licence only to drive LMV. Therefore, the Tribunal has rightly fastened the liability on the owner of the offending vehicle. Thirdly, even though the claimant claims that he was an agriculturist and earning Rs. 8,000/- per month, he has not produced any document to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Fourthly, the compensation awarded by the Tribunal is just and proper. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal. 5. Heard the learned counsel for the parties. Perused the records. 6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 30.8.2011. Re: Negligence 7. In respect of negligence is concerned, the Tribunal in paragraphs-12 and 13 of its judgment has come to the conclusion that the accident has occurred due to contributory negligence on the part of both the claimant as well as the driver of the JCB equally. The said paragraphs are extracted hereunder: '12. Re: Negligence 7. In respect of negligence is concerned, the Tribunal in paragraphs-12 and 13 of its judgment has come to the conclusion that the accident has occurred due to contributory negligence on the part of both the claimant as well as the driver of the JCB equally. The said paragraphs are extracted hereunder: '12. A perusal of the complaint shows that it is lodged by one Rajanna and it shows the JCB driver drove his vehicle in a rash and negligent manner and dashed against the two wheeler of the petitioner in front of RR Restaurant causing the accident. Geographically it is admitted that RR Restaurant comes on the right side of the road (while coming from Satyamangala-Vaddarahalli) where the petitioner was going i.e. on the service road from Satyamangala-Vaddarahalli. Since the petitioner was supposed to go on service road on the left side of the road while going towards Satyamangala, i.e., the service road abutting Hanumanthapura and not service road from Satyamangala side, the driver of JCB was obviously on the correct side of the road and petitioner appears to have come on the wrong side of the road. This is because as per the petitioners case and also spot mahazar. Ex. P2, it is clear that RR Restaurant come ahead of Satyamangala on the side of service road going from Satyamangala towards Hanumanthpura. Since the accident has occurred on the service road from Satyamangala and not from Hanumanthapura in front of RR Restaurant which is said to be 50 meters away from the spot of accident, there appears to be negligence on the part of petitioner also in causing the accident, though the JCB driver also ought to have observed the petitioner coming towards him. However it is clear that it is the petitioner who has gone and hit the JCB which admittedly does not go at high speed and was on correct part of the road. 13. Moreover Ex. P3-1MV report shows that there is no visible damages to the JCB, which also means that the JCB has not gone at high speed and impacted with the two wheeler of the petitioner. But it is the petitioner who has gone and hit the JCB. This also shows negligence on the part of petitioner. 13. Moreover Ex. P3-1MV report shows that there is no visible damages to the JCB, which also means that the JCB has not gone at high speed and impacted with the two wheeler of the petitioner. But it is the petitioner who has gone and hit the JCB. This also shows negligence on the part of petitioner. The above discussion also makes it clear that the petitioner who ought to have been on the service abutting Hanumanthpura and not service road coming from Satyamangala, was on the wrong road. Thus his negligence also has caused the accident. In other words there is contributory negligence on the part of petitioner also in causing the accident. Hence 1 answer this point partly in the affirmative.' I have gone through the original records, mahazar Ex. P-2, IMV report Ex. P-3 and it is clear that the claimant also contributed to the accident equally. Hence, the finding of the Tribunal holding that the accident has occurred due to contributory negligence on the part of the claimant as well as the driver of the JCB at the rate of 50% each is confirmed. Re: Liability 8. It is not in dispute that the driver of the JCB was having licence to drive LMV. But as on the date of accident, the driver of the offending vehicle was not having valid licence to drive heavy goods vehicle i.e., JCB. In view of the decision of this Court in the case of Hanamareddi (supra), the Insurance Company is liable to pay compensation to the claimant with liberty to recover the same from the owner of the offending vehicle. Paragraphs-14 and 15 are relevant and same are extracted hereunder: '14. As discussed by us above, we come to the conclusion that as on the date of the accident, the driver of the JCB was not holding any valid licence and the Insurance Company is not liable to pay any compensation., but however, in view of the decision of the Honble Apex Court it is made clear that the Insurance Company has to make payment and in the same proceedings recover the same from respondent No. 1-Owner.' In view of the said decision, the finding of the Tribunal with regard to fastening liability on the owner of the offending vehicle is modified. It is held that the Insurance Company is liable to pay compensation to the claimant with liberty to recover the same from the owner of the offending vehicle. Re: Quantum 9. The claimant claims that he was doing agricultural and earning Rs. 8,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to assess the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2011, the income should be taken notionally as Rs. 6,500/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimants income as merely Rs. 3,500/- per month. Therefore, this Court enhances the claimants income from Rs. 3,500/- to Rs. 6,500/- per month. As per the wound certificate, the claimant has sustained right leg crushed (right leg auto amputation at knee level). PW-2, the doctor has stated that the claimant has suffered 100% disability of right leg and 50% disability of whole body. The Tribunal considering the nature of injuries mentioned in the wound certificate, has rightly taken the whole body disability at 34%. The claimant is aged about 24 years at the time of accident, and the multiplier applicable to his age group is 18 instead of 17 applied by the Tribunal. His income is assessed at Rs. 6,500/- per month. Therefore, the loss of future income works out to Rs. 4,77,360/- (6500 x 12 x 18 x 34%) and it is awarded as against Rs. 2,42,760/- awarded by the Tribunal. 10. Considering the nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness, the claimant has to undergo in his life, this Court enhances the compensation from Rs. 5,000/- to Rs. 40,000/- under the head of loss of amenities. 11. Considering that the claimant is aged about 24 years and a bachelor, the nature of injuries would affect his marital life. Hence, compensation of Rs. 15,000/- awarded by the Tribunal towards loss of marriage prospects is enhanced to Rs. 25,000/-. 12. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. Considering that the claimant is aged about 24 years and a bachelor, the nature of injuries would affect his marital life. Hence, compensation of Rs. 15,000/- awarded by the Tribunal towards loss of marriage prospects is enhanced to Rs. 25,000/-. 12. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. The claimant is entitled to receive the following compensation: Compensation under different Heads Amount (Rs.) Pain and sufferings 50,000 Medical expenses 55,862 Food, nourishment, conveyance and attendant charges 15,000 Loss of marriage prospects 25,000 Loss of future income 4,77,360 Loss of amenities 40,000 Total 6,63,222 Less: 50% negligence on the part of claimant 3,31,611 BALANCE 3,31,611 13. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment with liberty to recover the same from the owner of the JCB bearing Registration No. KA-06- M-8389. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity.