Allowed

Raju S/O Azad Chougule v. Popat S/O Dattatray Patil

Karnataka HC10 Feb 2017MFA/22222/2012

Case brief

AI extract

What is this about?

In a motor accident compensation appeal, the High Court set aside the tribunal's 30% contributory negligence finding lacking evidence. The court acknowledged a 10% disability, recalculated future income, added future medical expenses, and enhanced total compensation from Rs. 68,460 to Rs. 1,50,300 with interest, directing the insurer to pay.

What did the court decide?

Compensation enhanced to Rs. 1,50,300 with 6% annual interest; judgment and award of lower court modified; insurer directed to pay balance amount.

Raju S/O Azad Chougule Vs Popat S/O Dattatray Patil — Motor Accident Claims | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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M.F.A. NO.22222/2012 (MV)

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BETWEEN

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SHRI RAJU S/O. AZAD CHOUGULE, AGE: 30 YEARS, OCC: LABOUR AT C.C.B., (PRESENT NIL), R/O: RAM NAGAR, SHIVABASAV NAGAR, TQ & DIST: BELGAUM.

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... APPELLANT

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(BY SRI. SANTOSH B RAWOOT, ADV.)

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AND

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SRI. POPAT S/O. DATTATRAY PATIL, AGE: MAJOR, OCC: NIL, R/O. AT/POST: SULTANAGADE, TQ: KHANAPUR, DIST: SANGALI, MAHARASHTRA STATE, PIN-116416

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THE DIVISIONAL MANAGER, THE NEW INDIA INSURANCE CO. LTD, 3933/B2 MUDALAGI BUILDING CLUB ROAD, BELGAUM. .. RESPONDENTS

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(BY SRI. ASHWIN C HUBLI, ADV. FOR R1 BY SRI. M.K.SOUDAGAR, ADV. FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:29-092011 PASSED IN MVC NO.2822/2010 ON THE FILE OF THE III ADDL. SENIOR CIVL JUDGE & MEMBER, AMACT, BELGAUM, PARTLY ALLOWING THE CLAIM

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.11.2016, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING : -

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JUDGMENT

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The claimant in MVC.2822/2010 on the file of Addl. MACT, Belgaum is before this court in appeal challenging the judgment and award dated 29.09.2011. Briefly stated the facts of the case are as below:

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The parties are referred to with respect to their respective positions in the tribunal. On 11.12.2008 at about 5.30 p.m. the claimant was going towards Narashimawadi by riding a motor cycle bearing Reg. No.KA22/V4831. As he came near Shirol, another vehicle bearing Reg. No.MH10/K-0215 was coming in the opposite direction and as it was being driven in a very rash and negligent manner by its driver, it dashed against the motor cycle. As a result of this impact the claimant suffered severe head injuries and also fracture to his right leg. Immediately he was shifted to Civil Hospital at Miraz where he was treated by conducting surgery to his left foot and implanting screw and a plate.

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The claimant was earning totally Rs. 8,500/-

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p.m. by doing some private work and also being a auto rickshaw driver. He was quite hale and healthy before the accident. After the accident he has become disabled and his life has become miserable. He spent around Rs. 95,000/- towards treatment and other expenses. Therefore, he made a claim for compensation for Rs. 6,00,000/-.

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The first respondent entered appearance before the tribunal, but did not file statement of objections. The 2^nd respondent insurance company contested the claim petition by taking up a plea very specifically that the accident did not occur due to negligence of the vehicle ie., Bajaj Matador bearing No. MH-10/K-0215. It was the claimant who was negligent in riding his motor cycle. The compensation claimed by the claimant is exorbitant. Therefore the Insurance Company prayed for dismissal of the claim petition.

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When the tribunal held an enquiry the claimant himself adduced evidence as PW-1 and also examined a Doctor, S.R. Angadi as PW-2 and got marked 12

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documents Ex.P.1 to Ex.P.12. The insurance company did not lead evidence, but the insurance policy was marked by consent Ex.R-1.

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Assessing the evidence, the tribunal came to the conclusion that the accident took place not only for the reason that the driver of the Bajaj matador was negligent but the petitioner also contributed to the occurrence of the accident and it is 30%. The tribunal has held that totally three riders were there on the motorcycle. There was clear violation of the provisions of the Motor Vehicles Act and also terms of the insurance policy, and therefore, the tribunal assessed the extent of negligence of the claimant as 30%.

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The tribunal has quantified the compensation at Rs. 97,880/- under the various heads viz., loss of future income, pain and suffering, loss of amenities, medical expenses and loss of income during treatment period. Though PW-2 has opined that the claimant’s disability due to injuries is to the extent of 55% of the whole body, but the tribunal has just considered the whole body disability as 8% for calculating the compensation payable

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under the head loss of future income. The tribunal has absolved the liability of the Insurance Company and directed the owner of the matador i.e., respondent No.1 to pay compensation to the claimant.

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Aggrieved by these findings, the claimant has preferred this appeal. I have heard the arguments of the learned counsel or the claimant/appellant and the respondent.

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The learned counsel for claimant argues firstly that the tribunal has held that there was negligence on the part of the claimant to the extent of 30% in the occurrence of the accident. This finding is contrary to the investigation made by the police who have filed chargesheet only against the driver of the matador i.e,. the offending vehicle. The reasons given by the tribunal in this regard are not at all justifiable. Entire negligence was on the part of the driver of the offending vehicle and therefore this part of the finding of the tribunal has to be now modified by holding that matador driver was entirely responsible for the occurrence of the accident. Actually the claimant was a pillion rider but the finding is that he

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was riding. As he was a pillion rider, negligence cannot be attributed to him at all.

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Secondly, he argued that the accident took place on 11.12.2008. The claimant suffered fracture of tibia and fibula in the accident. His age was 25 years then. Though PW-2 has clearly opined that the whole body disability is to the extent of 55%, but the tribunal, without any justification, has held the whole body disability to be 8% only. This is without any reason.

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Thirdly the tribunal has taken Rs. 3,000/- as the income of the claimant for calculating the compensation towards loss of future income. The claimant had his own avocation besides being auto-rickshaw driver. His actual income was Rs. 8,500/- p.m. Therefore the whole calculation should have been made having this income as the basis.

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Lastly he argued that the tribunal has failed to award any amount towards future medical expenses.

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The learned counsel for respondent No.2 has supported the findings of the tribunal and further submitted that the liability of the Insurance Company has

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been absolved because of the violation of the policy conditions.

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As regards the first argument of the learned counsel for the claimant, it appears that the tribunal has come to the conclusion that there was 30% negligence on the part of the claimant because the claimant did not have valid driving licence as he failed to produce the same, that 3 persons were riding the motorcycle in contravention of the provisions of Motor Vehicles Act and therefore, the accident occurred due to negligence of the claimant. This finding of the Tribunal does not appear to be correct. The police filed the charge sheet only against the driver of the matador. Although it is mentioned in the panchanama that the rider of the motorcycle, while overtaking a bus, dashed against the matador but what is written thus in the panchanama is based on the statement given by the driver of the matador; obviously he has tried to exculpate himself. But after holding investigation, the police filed charge sheet against the driver of the matador. Therefore, according to police, it was the matador driver who was negligently driving. It is true that the police records cannot be a basis for deciding

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whether driver was negligent or not. The Tribunal has to arrive at a conclusion in this regard independently with the help of evidence before it.

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In this case there is no evidence that the rider of the motorcycle was rash and negligent. If the cross examination of PW-1, the claimant, is perused, all that can be seen is a suggestion being given to him that he tried to overtake a bus and that the accident occurred owing to his negligence and recklessness. These suggestions are of course denied by him. Then there appears some inconsistent answers about his being a rider or a pillion rider. He says that he was riding the motorcycle, and also says that he was a pillion rider. He further admits the suggestion that totally there were three riders. About the driving licence, he says that he had the licence but it was lost. So from these answers it is not possible to draw an inference that he was negligently riding the motorcycle. The Tribunal has come to conclusion about his contributing to the occurrence of the accident only because of one answer of PW-1 that there were three riders. In this regard what is to be stated is that no inference can be drawn about contributory

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negligence if three persons were riding the motorcycle in contravention of traffic rules. The riders may be penalised for this reason. Even contributory negligence is not a matter of presumption merely for the reason that the rider does not possess driving licence. What is to be established is that the rider was riding the motorcycle without due care and caution and recklessly and negligently. In this regard it may be useful to refer to two judgments; in the case of Mohindar Shing Sohal and another vs Ramesh Kumar and others, (1985 ACJ 282) it is held as below.

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“ Contributory negligence is not to be presumed merely from the facts that Sukhwinder Singh did not hold a driving licence and that he was carrying more passengers on the vehicle than permitted under law. If Sukhwinder Singh was driving his motorcycle with due care and caution, in that case it could not be held that he was liable for the contributory negligence. At times, even a most competent driver may be without a licence. For example, he may by sheer inadvertence, have failed to have his license renewed. Such a driver cannot be held to be negligent merely from the fact that he was driving without a licence. The matter is not res integra . We have on this point the authoritative enunciation by Supreme Court in Gobald Motor Services Ltd. v. R.M.K. Veluswami and others , and there are also

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decision of our own High Court in Dharam Chand v. Shiv Pat and others .”

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Also in the case of Oriental Fire and General

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Insurance Company Ltd., vs Sudha Devi and others ,

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the High Court of Judicature of Patna (1991 ACJ 4) has observed as below.

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“As noticed hereinbefore, even that is the view of the Bombay High Court, as has been held in Maharashtra State Road Transport Corporation V. Babalal Daud Mulani , 1985 ACJ 282 (Bombay). In Mohinder Singh Sohal V. Ramesh Kumar , 1981 ACJ 326 (P & H), D.S. Tewatia, J. (as his Lordship then was) held that when accident was caused by rash and negligent driving of a jeep, contributory negligence is not to be presumed merely from the facts that the deceased did not hold a driving licence and that he was carrying more passengers on the vehicle than permitted under law. ”

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When evidence in this regard is conspicuously absent and that the insurance company has failed to adduce evidence from its side, the Tribunal was not right in holding that there was contributory negligence to the extent of 30% on the part of the claimant.

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With regard to disability of the claimant, assessment of the Tribunal is 8% whereas according to the claimant, it is 55% in the light of the evidence given by PW-2, a doctor. The nature of the injuries suffered by the claimant due to accident are – 1) Compound fracture of the lower 1/3^rd of the right tibia and febula bones of the right leg, 2) degloing over medial aspect of right foot 8 cm over plantar aspect. PW-2 is not a treating doctor. Based on the records of the hospital where the claimant took treatment and clinical examination, he has stated that there is 55% disability. But this 55% disability, as can be made out from his affidavit is the aggregate of 5% disability due to half inch shortening of the leg, 40% disability due to limitation of motion in the right ankle joint and 10% due to degloing wound over medial aspects of right foot. In fact PW-2 in the cross examination has stated very clearly that the disability certificate issued by him is in respect of right leg of the claimant and it is not possible for him to asses the whole body disability in the light of the injuries that the claimant has suffered, (CzÀ£ÀÄß

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¥ÀÆwð zÉÃºÀPÉÌ ºÉÆÃ°¹ ºÉÃ¼À°PÉÌ DUÀÄªÀÅ¢®è.), this is what he has stated.

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So when PW-2 has given an answer like this, his evidence becomes useless and probably for this reason the Tribunal might have assessed the disability at 8%. The disability, to be taken into consideration for granting compensation, is the functional disability. In this case the age of the claimant on the date of the accident was 25 years as held by the Tribunal and he was a labour with a private contractor and an auto-rickshaw driver. He has not stated the nature of work that he was doing as a labour. With half an inch shortening of his right leg, he can still drive an auto-rickshaw and attend to other works. Considering the age of the claimant, notwithstanding insertion of implants at the time of surgery, still he may be able to work with some difficulty and therefore in these circumstances, the disability cannot be more than 10% to the whole body.

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As regards the income of the claimant, according to him, he was earning Rs.8,500/- per month. But there is no evidence in this regard. The Tribunal has rightly observed this. Even it is difficult to expect documentary evidence in proof of the income of a labour and auto-rickshaw driver. So, the Tribunal should go by

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notional income, which has been considered as Rs.100/per day. This amount appears to be on the lower side. To have consistency, this court has prepared a chart with regard to notional income for calculating the compensation. Going by this chart, the notional income applicable for the year 2008 is Rs. 4,250/-. So, this is the income to be taken into consideration as the accident took place on 11-12-2008.

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As rightly argued by the learned counsel for the claimant, the Tribunal has not granted any amount towards future medical expenses. Certainly in the light of severity of the injuries, he would have taken treatment even after discharge from the hospital and expended some amount. This needs to be granted. In my opinion an amount of Rs.10,000/- can be granted.

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Therefore, the compensation that the claimant is entitled to towards loss of future income is calculated as below by applying multiplier 18 and taking 10% as the whole body disability.

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4250 X 12 X 18 X 10% = 91,800/-.

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Retaining the compensation awarded by the

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Tribunal under other heads and by adding another 10,000/- towards future medical expenses and modifying the loss of income during treatment period, the total compensation payable to the claimant is as below :

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Towards loss of future income.	Rs. 91,800/-
Pain and suffering	Rs. 20,000/-
Loss of amenities	Rs. 15,000/-
Medical expenses	Rs. 5,000/-
Loss of income during treatment	Rs. 8,500/-
Towards future medical expenses	Rs. 10,000/-
Total	Rs. 1,50,300/-

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So from the above discussion I proceed to pass

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the following:-

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ORDER

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Appeal stands allowed with costs.

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The judgment and award dated 29.09.2011 in MVC No. 2822/2010 on the file of III Additional Senior Civil Judge and Additional MACT, Belagavi is modified.

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The award amount is enhanced from Rs.

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68,460/- to 1,50,300/-.

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Interest at the rate of 6% per annum is payable on an amount of Rs. 1,50,300/from the date of petition till date of payment.

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The insurance company is hereby directed to deposit enhanced compensation with interest after deducting the payment or deposit made, if any, by it already.

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Sd/JUDGE

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sd/yan

Raju S/O Azad Chougule v. Popat S/O Dattatray Patil

Case brief

What is this about?

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Raju S/O Azad Chougule v. Popat S/O Dattatray Patil

Case brief

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