Muneeraiah M Vs Icici Lombard Gen.Ins. Co.Ltd.

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 04.05.2019, PASSED IN MVC NO.54/2017, ON THE FILE OF THE MEMBER, MACT, XVIADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant being aggrieved by the judgment and award dated 04.05.2019 passed by the Member, MACT, XVI Addl.Judge, Court of Small causes, Bengaluru(for short `Tribunal'), in MVC No.54/2017 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 05.08.2016 at about 8.40 a.m., the petitioner was riding a vehicle bearing registration No.KA-04-EF-5319 on

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HC-KAR

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Kempenahalli road, met with an accident due to rash and negligent riding of a motor cycle bearing registration No.KA52-J-9158 by its rider. As a result the petitioner sustained multiple injuries. He took treatment as in-patient in Sushrusha Nursing Home and underwent surgery and spent huge amount towards medical expenses. He has suffered permanent disability. With these reasons, he prayed to award compensation of Rs.10,00,000/-.

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The respondent No.1 was the insurer and respondent No.2 was the owner of the offending motor cycle. Respondent No.1 has filed its written statement denying the contentions of the claim petitioner and also denied its liability to pay the compensation. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case, examined two witnesses as PW-1 and PW-2 and marked 17 documents, as per Exs.P-1 to P-17. The respondent-Insurance Company has

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examined two witnesses as RW-1 and RW-2 and marked

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Exs.R1 and R2.

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The Tribunal after hearing both parties and appreciating the evidence on record, held that accident occured due to contributory negligence of rider of both the vehicles and assessed the negligence in the ratio of 35:65 and directed respondents to pay 65% of the compensation to the petitioner out of Rs.6,05,200/-.

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By the impugned judgment, the Tribunal

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awarded the following amount of compensation:

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Particulars	Amount in Rs.
Pain and suffering	40,000
Food and nourishment, conveyance and attendant charges	19,000
Medical expenses	3,82,000
Loss of income during the period of treatment	21,000
Loss of future earnings	88,200
Loss of amenities	35,000
Future medical expenses	20,000
Total	Rs.6,05,200/-

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The appellant being dissatisfied by the amount of compensation awarded, has preferred this appeal,

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contending that the Tribunal has erroneously held that he had contributed to the extent of 35% towards causing the accident and amount of compensation awarded was

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inadequate.

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9. Heard the arguments of the learned counsel

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appearing for the claimant as well as the insurer and perused records.

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10. Learned counsel for the appellant/claimant vehemently submitted that under Sections 165 and 166 of the Motor Vehicle Act, i t is not necessary for determining the negligence of riders of the vehicles involved in the accident. It is suffice if a vehicle is involved in the accident, then the Tribunal has to assess the compensation and direct the owner and insurer of the vehicle involved in the accident to pay the compensation. In this case, without any basis, the Tribunal determined the contributory negligence and apportioned the negligence in the ratio of 35% and 65% between claimant and rider of the offending motorcycle. He further submitted that there is no need to blindly follow

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judicial precedents when the law itself clearly states that determination of negligence is not required.

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In this case, Tribunal without jurisdiction to determine the said facts held that accident occurred due to contributory negligence of rider of both the motor cycle and apportioned the negligence. Hence, prayed to set aside the same and prayed to award the compensation. A Motor vehicle compensation petition arises out of tortious liability, and in order to fix responsibility for payment of compensation, it is just and necessary to prima facie determine as to who was negligent in causing the accident in question. For instance, in the present case, the accident occurred by involving of two vehicles. If the MACT has no jurisdiction to determine the negligence, then either of the owners or both vehicles would be equally liable to pay compensation, or the claimant may not be entitled to any compensation at all, since admittedly both vehicles were involved in the accident. The Motor Vehicles Act does not provide any guidelines about determination of compensation amount and liability of tortfeasors to pay it. The said

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procedure and guidelines are developed by the judicial precedents. Therefore, the entire procedure relating to motor vehicle compensation claims has been evolved through judicial precedents. Hence, judicial precedents play a vital role in determining the amount of compensation and in fastening of the liability on the tortfeasors to pay it. In view of these reasons, the contention of the learned counsel for appellant is not tenable.

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The claimant has produced copy of the FIR, mahazar, wound certificate and charge sheet at Exs-P1 to P6. Ex-P3 reveals that both the riders of the vehicle were charge sheeted for the offence punishable under Section 279 of the IPC. The Investigating Officer after completion of the investigation came to a conclusion that the rider and both the motorcycles were equally responsible for causing the accident in question and in addition to that, claimant accused No.2 has been charge sheeted. Claimant had no driving licence to ride the said vehicle at the time of accident; and the said vehicle was not insured before plying on the road. Accordingly, he was charge sheeted for the offence

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punishable under Sections 279, 338, and under Section 181, 3(1), 146, 196 of the Motor Vehicles Act.

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Assessing the oral and documentary evidence of the claimant, the Tribunal held that accident occurred due to contributory negligence of rider of both the vehicles involved in the accident. The Tribunal also apportioned contribution of claimant for causing accident as 35%. 14. The learned counsel for the appellant contends that merely because the claimant’s name has been mentioned in the charge sheet or in the spot sketch, it cannot be a ground to believe that he had contributed for the accident. However, these documents were produced by the claimant. He cannot approbate and reprobate on the same evidence. Hence, the finding of the Tribunal that accident are caused due to contributory negligence of rider of both the vehicle in the ratio mentioned does not call for interference.

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According to the claim petition, age of the claimant at the time of incident was 65 years. The Tribunal accepted the same. As per the case of Sarla Verma Vs.

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Delhi Transport Corporation and another¹ and National Insurance Co. Ltd Vs. Pranay Sethi and Ors² , the Tribunal has rightly accepted the multiplier as '7'.

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The Tribunal has taken income of the claimant as Rs.7,000/- per month which is on the lower side. Following the chart prepared by the KALSA, notional income of the claimant is taken as Rs.9,500/- p.m. Claimant examined PW2 to assess the disability. PW-2 in his evidence has stated regarding the difficulties faced by the claimant and the restrictions in the movement of the injured organ, and assessed the total disability at 33% of the whole body. The Tribunal, however, assessed the disability at 15%.

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Due to age-related factors, he may also have difficulty in the movement of the knee and ankle joints, which may not be attributable to the injury sustained in the accident. Considering all these factors, the Tribunal assessed the disability at 15%, which does not call for any interference.

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1 AIR 2009 SC 3104

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2 (2017) 16 SCC 680

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Looking at the amount of compensation awarded

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on the other heads, some heads are entitled to

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enhancement.

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For the aforesaid discussions, the claimant is

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entitled to following amount of compensation :

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Particulars	Amount in Rs.
Pain and suffering	50,000
Medical expenses	3,82,000
Attendant expenses, special diet and conveyance charges	30,000
Loss of income during laid up period (Rs.9,500 x3 months)	28,500
Loss of income due to permanent disability (Rs.9,500/-x 12 x 7 x15%)	1,19,700
Loss of amenities	50,000
Loss of future medical expenses	20,000
Total	Rs.6,80,200
Amount awarded by the Tribunal Enhancement	Rs.6,05,200 75,000/-

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The claimant is entitled to 65% of the said amount i.e. Rs.48,750/- with interest at the rate of 6% p.a. from the date of petition till the date of realisation.

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Respondent Nos.1 and 2 are jointly and severally

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liable to pay the said amount of compensation.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 04.05.2019 passed by the XVI Addl.Judge, Court of Small Causes and MACT, in MVC No.54/2017 stands modified;

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iii) The claimant is entitled to enhanced compensation of Rs.48,750/- with interest at the rate of 6% p.a., from the date of petition till its realization, excluding the delayed period of 198 days in filing of appeal.

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iv) The respondent No.2-Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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v) The remaining portion of the award of the Tribunal shall remain unaltered.

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vi) Amount enhanced is marginal, therefore, entire enhanced amount is

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