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2021 DIGILAW 561 (KAR)

B. S. Manjunatha v. Bhaskar Shetty

2021-04-16

ASHOK S.KINAGI

body2021
JUDGMENT : 1. The claimant being aggrieved by the judgment and award dtd. 25/3/2013 passed in MVC No.373/2011 by the Fast Track Court & MACT, Kundapura filed the appeal in MFA No.6005/2013. The insurance company - respondent No.2 being aggrieved by the same judgment filed MFA No.5782/2013. 2. The parties are referred to as per their ranking before the Tribunal. 3. The brief facts leading to these appeals are that on 24/1/2011 at about 12.00 hours on Perduru - Heriyadka Road, Pakkalu, Udupi Taluk, the claimant was traveling in a lorry bearing registration No.KA-13-7615 from Beloor to Udupi side, when the said lorry reached at Pakkalu of Heriyadka Village there was a mechanical defect in the lorry and the driver of the said lorry was parked the lorry in the side of the road and the appellant-claimant was in lorry cabin. At that time, the driver of the goods lorry bearing registration No.MEG-7809 drove the same from Udupi side in a high speed and rash and negligent manner and due to over speed, the driver of the lorry lost control over the same and dashed against the parked lorry. Due to the said mistake, claimant sustained injury and he took treatment in KMC hospital, Manipal and Ashraya hospital, Chikkamagalur. Due to accidental injuries, the claimant is not attending his work and lost income. The claimant is not in a position to do any work thereby sustained permanent disability and the claimant has lost future income. The concerned claimant has raised case against the person who was driving the said lorry bearing registration No.MEG7890. 4. The respondents being the owner and insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. The claimant has filed a petition under Sec. 166 of MV Act claiming compensation. During pendency of the proceedings before the Tribunal, respondent Nos.3 and 4 are impleaded. Respondents have filed their written statements. 5. Respondent No.1 has filed written statement admitting about the accident as alleged by the claimant in the claim petition but denied the other averments in the claim petition and it is contended that the offending vehicle was insured with respondent No.2 and vehicle was driven by the driver who was holding valid and effective driving license to drive the said vehicle and prays to dismiss the claim petition. 6. 6. Respondent No.2 has filed a written statement denying averments made in the claim petition. It is stated that the driver of the lorry bearing registration No.KA-13-7615 drove the same in a rash and negligent manner and dashed against the said goods lorry bearing registration No.MEG-7890 and it is head on collision. The alleged accident took place due to rash and negligent driving of the lorry bearing registration No.KA-13-7615 and it is further contended that both the drivers are not holding valid and effective driving license to drive the vehicle as on the date of the accident. Hence, prays to dismiss the petition. 7. Respondent No.3 field a written statement admitting ownership of lorry bearing registration No.KA-7615. It is also admitted that accident stated by the claimant in claim petition are true and correct and it is also admitted that on the date of accident, claimant was travelling as owner of goods jaggary bags in the lorry bearing registration No.KA-13-7615 from Beloor of Hassan to Udupi. It is contended that accident occurred solely due to rash and negligent driving of the lorry bearing registration No.MEG-7890 by its driver and it is contended that driver of the lorry bearing registration No.KA-13-7615 has not committed any mistake. The said lorry insured with respondent No.4 and policy was valid as on the date of accident and driver of the said lorry was holding valid and effective driving license to drive the lorry at the time of the accident. Hence, prays to dismiss the petition. 8. Respondent No.4 filed written statement denying the petition averments and it is contended that there was no negligence on part of the lorry bearing registration No.KA-13-7615. The said lorry was parked for repairs. The police have filed charge sheet against the driver of the lorry bearing registration No.MEG-7890 and admitted that lorry bearing registration No.KA-13-7615 was insured with respondent No.4 and the liability is subject to terms and conditions of the policy and it is contended that claimant was unauthorized passenger in the goods vehicle and the passenger in the goods vehicle are not covered under the policy and also the driver was not holding valid and effective driving license to drive the vehicle on that date. Hence, prays to dismiss the petition. 9. On the basis of the aforesaid pleadings, the Tribunal has framed the following issues: 1. Hence, prays to dismiss the petition. 9. On the basis of the aforesaid pleadings, the Tribunal has framed the following issues: 1. Whether the petitioner proves that on 24/1/2011 at about 12 hours on Perduru- Heriyadka road, Pakkalu, Udupi Taluk, the road traffic accident took place due to the actionable negligence of the driver of the lorry bearing Reg.No.MEG-7890 by which the petitioner who was traveling in the lorry No.KA-13-7615 sustained injuries? 2. Whether the respondent No.2 proves that due to negligence of the driver of the Lorry No.KA-13-7615, this accident took place? 3. Whether the respondent No.2 proves that as on the date of the accident noted above the drivers of above noted lorries, they are not holding valid and effective driving license to drive that type of vehicle? 4. Whether the respondent No.2 proves that as because there is violation of terms and conditions of the policy on the part of insured of lorry bearing Reg.No.MEG7890, it is not liable to pay the compensation to the petitioner? 5. Whether the petitioner is entitled for compensation? If so, how much? From whom? 6. What order or award? 10. In order to prove the case of the claimant, the claimant examined 3 witnesses as PWs.1 to 3 and got marked Exs.P.1 to P.22. Respondent got examined RW.1 and got marked Exs.R1 to R3. The Tribunal after recording the evidence has considered the material placed before it and held that claimant has proved that accident was occurred on 24/1/2011. Due to actionable negligence of the driver of the lorry bearing registration No.MEG-7890 by which the claimant was inmate travelling along with goods in lorry bearing registration No.KA-13-7615 and sustained injuries and also held that respondent No.2 failed to prove negligence of the driver of the lorry bearing registration No.KA-13-7615 accident was occurred and further held that respondent No.2 has failed to prove that on the date of accident, the driver of the said lorry was not possessed valid and effective driving license to drive this type of vehicle and also held that respondent No.2 has failed to prove that there is violation of terms and conditions of the policy on part of the insured lorry bearing registration No.MEG-7890. Further held that claimant is entitled for compensation and awarded a compensation of Rs.3,70,750.00 with interest 6% pa and held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation amount and claim petition as against respondent Nos.3 and 4 was dismissed. 11. The insurance company - respondent No.2 being aggrieved by the judgment and award passed by the Tribunal has filed this appeal. The claimant being aggrieved by the judgment and award passed by the Tribunal has filed this appeal seeking for enhancement. 12. Heard the learned counsel for the appellant and learned counsels for respondent - Insurance company. 13. Learned counsel for the insurance company submits that the appellant has failed to prove the manner of accident and further he submits that the claimant has not produced sketch prepared during the course of investigation by the police and he further submitted that the Tribunal ought to have seen spot sketch produced. He further submits sketch produced and marked in evidence of RW1-driver of lorry clearly establishes that the driver of the lorry bearing registration No.KA-13-7615 had parked at a curve and beyond centre line of road dangerously which is contrary to Rule 15 of the Road Regulations Act, 1989 as such there was a negligence on the part of the driver of the lorry bearing registration No.KA-13-7615. He further submitted that mere filing of charge sheet alone is not able to prove negligence on part of the driver of the offending vehicle. Hence, he prays to allow the appeal filed by the insurance company and dismiss the appeal filed by the claimant. 14. Per contra, learned counsel for respondent submits that insurance company has not adduced any evidence in order to prove contributory negligence on part of the driver of the lorry bearing registration No.KA-13-7615. He further submits that claimant has produced police records at Exs.P.11 to 14 to prove negligence on the part of the driver of offending vehicle. He further submitted that appellant has produced income tax records to prove the income of the appellant and the Tribunal did not consider the record produced by the appellant and awarded lesser compensation. He further submits that claimant has produced police records at Exs.P.11 to 14 to prove negligence on the part of the driver of offending vehicle. He further submitted that appellant has produced income tax records to prove the income of the appellant and the Tribunal did not consider the record produced by the appellant and awarded lesser compensation. He submits that the appellant-claimant was admitted in hospital as inpatient for one month and he was under rest for one year and tribunal has awarded lesser compensation under the heads pain & sufferings and medical expenses and also loss of future earning. Hence, he prays to dismiss the appeal filed by the insurance company and prays to allow the appeal filed by the claimant. 15. Considered the submissions made by the learned counsel for the parties and perused the records. 16. The point that arises for consideration is with regard to the quantum and liability. 17. The Hon'ble Supreme Court in the case of 'MANGALA RAM VS. ORIENTAL INSURANCE CO.', (2018) 5 SCC 656 has held that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt. It is well settled in law that when an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care, and who then knew or ought to have known of the danger caused by the other's negligence. 18. Keeping in mind the law laid down by the Hon'ble Apex Court in the aforesaid judgment, now I consider/examine the pleadings and evidence adduced by the parties. 19. In order to prove the claim, the claimant got himself examined as PW1 wherein he has deposed about the manner in which the accident took place and has sustained injuries. To substantiate his case, the claimant has produced a copy of the FIR along with the complaint, spot mahazar, wound certificate, accident information report, charge sheet, M.C. report etc. From the perusal of the aforesaid reports, it is clear that the accident has occurred due to the rash and negligent driving of the driver of the offending vehicle. To substantiate his case, the claimant has produced a copy of the FIR along with the complaint, spot mahazar, wound certificate, accident information report, charge sheet, M.C. report etc. From the perusal of the aforesaid reports, it is clear that the accident has occurred due to the rash and negligent driving of the driver of the offending vehicle. Respondent No.2-Insurance Company of the offending vehicle has contended that the negligence of the driver of the lorry bearing No.KA-13-7615 is the cause for the accident. To substantiate the said contention, Insurance Company of the offending vehicle has not examined any eye witnesses except RW-1, who is driver of the offending vehicle. The burden is on respondent No.2 to prove that the accident was caused due to the contributory negligence on the part of the driver of the lorry bearing Registration No.KA-13-7615. In the present case, respondent No.2 has not led any evidence to substantiate its claim. The Tribunal was justified in holding that the accident was caused due to the negligence on the part of the driver of the offending vehicle only. 20. Now with regard to the quantum is concerned, the appellant/claimant examined himself as PW1 and produced exhibits P11 to P14 i.e. statement and balance sheet which disclose that the appellant had a profit of Rs.1,48,734.00 for the financial year 2008, Rs.1,59,698.00 for the financial year 2009 and Rs.2,00,709.00 for the financial year 2010 and Rs.1,46,128.00 till January 2011. In order to substantiate the contents of exhibits P11 to P14, the claimant has not examined any officer. The Tribunal considering the documents produced by the claimant, has taken the annual income of the claimant at Rs.1,50,000.00 p.a. The Tribunal without considering the records produced by the claimant has committed an error in assessing the annual income of the claimant at Rs.1,50,000.00 which is on the lower side. This Court considering the records produced by the claimant, reassess the notional income at Rs.2,00,000.00 p.a. 21. In order to prove the disability, the claimant examined the doctor as PW3 who has opined that there is a functional disability which will affect the appellant in future and the claimant was under the treatment till January 2011 and he has opined that the claimant has suffered functional disability of 50%. The doctor has opined that the petitioner has suffered physical disability of 23% to the right lower limb. The doctor has opined that the petitioner has suffered physical disability of 23% to the right lower limb. The Tribunal after considering the evidence of PW3 has opined that the claimant has not at all suffered loss of income to the extent of 50% in the total income of Rs.1,50,000.00 p.a. at the relevant age. Further, the appellant has also not produced income tax records after the accident in order to prove that because of the injuries suffered by him, there is loss of income. The Tribunal has held that the claimant has suffered disability to the extent of 11% as per the wound certificate. The Tribunal was justified in assessing the disability to the extent of 11%. The age of the claimant as on the date of accident was 53 years but the claimant has produced ration card to show that he was aged 51 years as on the date of accident. The tribunal has assessed the income of the claimant at Rs.75,000.00 p.a. Though the Tribunal has taken the income of the claimant at Rs.1,50,000.00 p.a. and also considered the physical disability suffered by the claimant, it held that the claimant would not be able to discharge service to the full extent to earn Rs.75,000.00 per annum and the deficit service is counted to the extent of 11% of Rs.75,000.00 which comes to Rs.8,250.00 per annum, which is on the lower side. 22. This Court re-assessed the notional income of the claimant at Rs.2,00,000.00 per annum and as 50% of the income is not affected due to the physical disability suffered by the claimant, as held by the Tribunal, in terms of money it comes to Rs.1,00,000.00 and due to the physical disability suffered by the claimant, he is not able to discharge his services to the full extent to earn Rs.1,00,000.00 p.a. and if his services is counted to the extent of 11% of Rs.1,00,000.00, it comes to Rs.11,000.00. The ration card discloses that the age of the claimant as 51 years. Considering the guidelines laid down by the Hon'ble Apex Court in SMT. SARALA VERMA & ORS. VS. DELHI TRANSPORT CORPORATION & ANR. (CIVIL APPEAL No. 3483 OF 2008 arising out of SLP [C] No.8648 of 2007 dtd. The ration card discloses that the age of the claimant as 51 years. Considering the guidelines laid down by the Hon'ble Apex Court in SMT. SARALA VERMA & ORS. VS. DELHI TRANSPORT CORPORATION & ANR. (CIVIL APPEAL No. 3483 OF 2008 arising out of SLP [C] No.8648 of 2007 dtd. 15/9/2009) wherein the Hon'ble Apex Court was pleased to lay down the guidelines and the various principles in relation to awarding compensation in the respective cases, considering the age of the claimant as 51 years, the appropriate multiplier applicable to his age group is 11'. Therefore, the claimant is entitled to Rs.1,21,000.00 (Rs.11,000.00 x 11) under the head 'loss of future earning'. 23. Further, considering the injuries sustained by the claimant and also the evidence of the doctor who has treated the claimant, wherein the said doctor has deposed that the claimant has suffered disability and there is difficulty in prolonged walking, standing, climbing stair, inability to perform heavy manual labour and sitting on the ground, I am of the view that the claimant is entitled for Rs.50,000.00 under the head 'loss of amenities in life' as against Rs.20,000.00 awarded by the Tribunal. Further, considering the nature of injuries suffered by the claimant, it is just and proper to award a compensation of Rs.50,000.00 under the head 'pain and suffering' as against Rs.30,000.00 awarded by the Tribunal. Though PW3, the doctor, has deposed that the claimant has to undergo one more surgery for removal of implants from right femur and right tibia, as the claimant has not produced any material to show the expenses towards surgeries, the Tribunal has awarded Rs.25,000.00 under the heads of 'future medical expenses', which is just and proper and same is undisturbed. Thus, in all the claimant is entitled to a total compensation of Rs.4,51,000.00 as against Rs.3,70,750.00 awarded by the Tribunal. The enhancement in compensation is Rs.80,250.00 which carries interest at 6% p.a. from the date of petition till realisation. 24. Accordingly, the following order is passed : ORDER i) The appeal filed by the claimant in MFA No.6005/2015 is allowed in part; The appeal filed by the Insurance Company in MFA No.5782/2013 is dismissed; ii) The judgment and award dtd. 25/3/2013 passed by the Tribunal in MVC No.373 of 2011 is modified; iii) The claimant is entitled to a total compensation of Rs.4,51,000.00 as against Rs.3,70,750.00 awarded by the Tribunal. 25/3/2013 passed by the Tribunal in MVC No.373 of 2011 is modified; iii) The claimant is entitled to a total compensation of Rs.4,51,000.00 as against Rs.3,70,750.00 awarded by the Tribunal. The enhancement in compensation is Rs.80,250.00 which carries interest at 6% p.a. from the date of petition till realisation. iv) The Insurer is directed to deposit the enhanced compensation amount along with interest at the rate of 6% p.a. from the date of petition till the date of realisation within a period of eight weeks from the date of receipt of a copy of this order. v) The Tribunal is directed to release the enhanced compensation amount in favour of the appellant/claimant.