Partly allowed

Veeranna S/O Maharudrappa Biradar v. the Deputy Manager and Controller

Karnataka HC27 Oct 2014MFA/30319/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the motor accident claims tribunal, setting aside the 50% contribution of negligence imposed on the appellant as unsupported by evidence and enhancing the compensation awarded to the motorcyclist from 2.18 lakhs to 3.49 lakhs based on revised calculations for disability, income loss, medical expenses, and pain and suffering.

What did the court decide?

Allowed in part; appellant awarded Rs. 2,35,700/- additional compensation plus 6% p.a. interest.

Veeranna S/O Maharudrappa Biradar Vs the Deputy… — Motor Accident Claims | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA

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GULBARGA BENCH

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DATED THIS THE 27^TH DAY OF OCTOBER, 2014

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BEFORE

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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MISCELLANEOUS FIRST APPEAL No.30319/2009 (MV)

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BETWEEN

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VEERANNA S/O MAHARUDRAPPA BIRADAR, AGED ABOUT 46 YEARS, OCC: AGRICULTURE & EDITOR, R/O H.NO.9-9-40, AKKAMAHADEVI COLONY, HARURGERI CROSS ROAD, B.V.B. COLLEGE ROAD, BIDAR. … APPELLANT (BY SRI. SANTOSH BIRADAR, ADV.)

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AND

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THE DEPOT MANAGER & CONTROLLER, ANDHRA PRADESH ROAD TRANSPORT CORPORATION, DEPOT NO.2, HYDERABAD. … RESPONDENT

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(BY SRI. LINGARAJ S. MAHAGAON ADV. - ABSENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.11.2008 PASSED IN MVC NO.83/2005 ON THE FILE OF THE PRESIDING OFFICER, FTC-IV & MACT, BIDAR, PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant dissatisfied with the amount of

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compensation awarded by the Tribunal for the injuries sustained by him in a motor vehicle accident and challenging the finding on negligence, has filed this appeal, seeking enhancement.

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The facts reveal that on 25.07.2004, the

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appellant was proceeding on his motorcycle bearing No.KA-39/E-8266 and at about 11.45 a.m. on BhalkiBidar road, the bus owned by the respondent driven by its driver in a rash and negligent manner, came from the opposite direction and hit the motorcycle. Thereby, the appellant suffered severe fractures. He was treated in the hospital. He suffered disability and therefore, made a claim for compensation before the Tribunal for pain,

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suffering, mental agony, medical expenses, loss of income etc.

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During the enquiry, the appellant was examined as PW.1 and the witness PW.2. In their evidence, Exs.P1 to P16 were marked. No evidence was led in by the respondent.

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The Tribunal after hearing the learned counsel and on appreciation of the evidence on record, held that the appellant contributed negligence to an extent of 50% and having arrived at the compensation at Rs.2,18,960/-, directed the respondent to pay a sum of Rs.1,13,960/- with interest @ 6% p.a. from the date of the judgment. Dissatisfied with the finding on negligence and the quantum of compensation awarded, the present appeal is filed by the claimant.

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I have heard the learned counsel for the

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appellant. Learned counsel for the respondent is absent.

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The points that arise for my consideration in this appeal are,

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1. Whether the appellant contributed negligence on his part in the occurrence of the accident?

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1. Whether the appellant is entitled to the enhanced compensation? If so, to what extent?

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Learned counsel for the appellant submits that

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there was no negligence on the part of the appellant and he was not responsible for the accident at all. He submits that the accident was solely due to the negligence of the bus driver and the Tribunal in the absence of any evidence has wrongly held that there is contribution of negligence by the appellant to an

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extent of 50%. He also submits that the

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compensation granted on each of the heads is on the lower side and it needs enhancement.

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Perusal of the material placed on record reveals that Ex.P1 is the copy of the first information report, whereas Ex.P2 is the copy of the complaint. The complaint in respect of this accident was filed by one Veeranna and it reveals that there are only allegations of negligence as against the driver of the bus. Nowhere it is attributed in the complaint about the negligence of the rider of the motorcycle. Ex.P3 is the copy of the charge-sheet and it reveals that the police after investigation, filed a charge-sheet against the driver of the bus and there is no charge against the appellant.

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Ex.P4 is the copy of the scene of

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occurrence mahazer and perusal of it would reveal that the road on the spot of the accident is about

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20 feet wide. The road runs North and South. On

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the Eastern and Western side, there are lands. The bus was coming from the Southern direction towards the North, whereas the appellant was proceeding from

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North towards the South. The contents of the mahazer does not reveal the exact spot of the accident on the road. Ex.P5 is the motor vehicle inspection report.

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Perusal of the oral evidence reveals that PW.1 is the appellant and in his evidence, he states that he was proceeding on the motorcycle on the proper side in normal speed and the bus driver drove the bus in a rash and negligent manner and hit his motorcycle. The cross-examination of PW.1 does not reveal any circumstance to attribute negligence on the part of the appellant. The motorcycle is a light and small vehicle, whereas the bus is a large vehicle. There was more responsibility on the driver of the bus and when a charge-sheet is filed

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against him for rash and negligent driving, the respondent ought to have examined the driver of the

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bus. Non-examination of the driver also leads to an adverse inference, which supports the version of the appellant. So far as the manner of the accident is concerned, when he pleads and deposes before the Tribunal that he was on the proper side of the road and when there was charge-sheet solely against the driver of the bus, in the absence of any material on record to attribute negligence on the part of the appellant, it appears that the Tribunal committed an error in holding the appellant negligent to an extent of 50%.

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Perusal of the judgment reveals that the Tribunal held the appellant negligent to an extent of 50% solely because there was a head on collision. If the head on collision of two vehicles is on the wrong side of the bus, then no negligence could be attributed against the appellant. If the collision

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is at a time when both the vehicles were proceeding on the middle of the road, such a contention could be accepted. There is no material on record to prove that the head on collision was at a place where the bus was on the proper side. Therefore, the approach of the Tribunal in attributing the negligence on the part of the appellant is without any evidence and has to be set aside.

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So far as the quantum of compensation is concerned, the Tribunal has not considered each of the heads while awarding the compensation to the appellant.

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Perusal of the injury certificate produced at Ex.P6 reveals that the appellant had suffered the fracture of the shaft femur right 1/3^rd , compound segmental fracture of both bones of right leg 1/3^rd and fracture of 4^th and 5^th meta-tarsal of the right foot. He was examined by the doctor - PW.2. The

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doctor stated the disability in the particular limb at 45%. Generally, 1/3 is taken as the disability of the whole body. Taking into consideration the nature of the fractures suffered and the evidence of PW.2, it would be just and proper to consider the permanent disability of the appellant at 15%.

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The Tribunal has granted a sum of Rs.1,33,960/- towards the medical expenses on the basis of the documents produced by the appellant and it appears to be just and reasonable.

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That apart, the appellant was an agriculturist and also a paper editor. To support the fact that he was a paper editor, no material is placed on record. Taking into consideration the fact that the accident was in the year 2004 and the income of a labour, I think it would be just and proper to consider his income at Rs.3,500/- per month. The appellant was 42 years old at the time of the accident.

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Therefore, the multiplier to be adopted is ‘14’. Thereby, the net compensation payable towards loss of future earning would be Rs.3,500/- x 12 x 14 x 15/100 = Rs.88,200/-.

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As the appellant has suffered as many as 5 fractures, it would be just and proper to award a sum of Rs.55,000/- towards pain and suffering.

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Considering his income at Rs.3,500/- per month and the fact that he had undergone surgery on 2 to 3 occasions and therefore, he may not have in a position to attend the duty for 5 months, the appellant is entitled to a sum of Rs.17,500/towards loss of income during the period of treatment.

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With the disability of 15% and considering

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the grant of compensation towards the loss of future earning, the appellant is entitled to a sum of Rs.15,000/- towards loss of amenities.

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Rs.10,000/is payable towards food,

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nourishment, attendant and conveyance charges.

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The appellant has to undergo surgery further for the removal of the implants. Perusal of the evidence placed on record reveals that the implants have been put in two places. Hence, it would be just and proper to award a sum of Rs.30,000/towards future medical expenses.

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Thereby, the net compensation payable to the

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appellant would be as under:

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1.	Towards loss of future earning	Rs.88,200/-
2.	Towards pain and suffering	Rs.55,000/-
3.	Towards loss of amenities	Rs.15,000/-
4.	Towards loss of income during the period of treatment	Rs.17,500/-
5.	Towards medical expenses	Rs.1,33,960/-
6.	Towards food, nourishment, attendant and conveyance charges	Rs.10,000/-
7.	Towards future medical expenses	Rs.30,000/-
	Total	Rs.3,49,660/-

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Deducting a sum of Rs.1,13,960/- awarded by the Tribunal, the appellant is entitled to an additional sum of Rs.2,35,700/- with interest @ 6% p.a. The points raised are answered accordingly.

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Consequently, the appeal is allowed in part. The appellant is entitled to a sum of Rs.2,35,700/- with interest @ 6% p.a. from the date of the petition till its payment, in addition to the compensation awarded by the Tribunal. He is also entitled for interest @ 6% p.a. even on the amount award by the Tribunal from the date of the petition till its deposit/payment.

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Sd/JUDGE

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Veeranna S/O Maharudrappa Biradar v. the Deputy Manager and Controller

Case brief

What is this about?

What did the court decide?

Veeranna S/O Maharudrappa Biradar v. the Deputy Manager and Controller

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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