Shrishail Vs Shankar and Anr.

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT OF THE MOTOR VEHICLE ACCIDENTS CLAIMS TRIBUNAL NO.XIII VIJAYAPURA, AT VIJAYAPURA IN MVC NO.1689/2015 DATED 20.04.2021 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY THE APPELLANT.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C.M. JOSHI)

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Though this matter is listed for admission, with

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the consent of both the parties, it is taken up for final disposal.

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Heard learned counsel appearing for the

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appellant-petitioner and learned counsel appearing for respondent No.2 – Insurance Company.

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Being aggrieved by the judgment and award dated 20.04.2021 passed in MVC No.1689/2015 by the IV Additional District and Sessions Judge and Member, MACT-

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XIII, Vijayapura, (for short ‘the Tribunal’), the petitioner is before this Court seeking enhancement of compensation.

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The brief facts of the case of the petitioner are as

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below:

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a) On 17.08.2015 at 3.45 p.m., he was riding a motorcycle bearing No.UP-07/L-7542 towards Sarawad and near Punam Dhaba, a car bearing No.KA-28/N-1147 came from opposite side in rash and negligent manner and collided with the motorcycle of the petitioner, resulting in, the petitioner sustaining fracture of his right femur, left tibia and fibula and other minor injuries. Immediately he was shifted to BLDEA Hospital, Vijayapura, then shifted to Sanjeevini Hospital, Vijayapur, thereafter shifted to Dr. Shekhar Malve Hospital, Miraj. He was inpatient for 10 days. Hence, he filed a claim petition before the Tribunal claiming that he was aged about 40 years at the time of accident and being an agriculturist he was earning Rs.10,000/- per month, and sought just and reasonable compensation from the owner and insurer of the offending vehicle.

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b) On being served with the notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their written statement. Respondent No.1 contended that the accident was due to the negligence of the petitioner and that the compensation claimed is highly exorbitant, imaginary and untenable. He also denied the age, income and occupation of the petitioner. He submitted that the policy was in force and the driver was having valid driving license, therefore the liability, if any, be fastened upon respondent No.2.

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c) The respondent No.2 – Insurance Company also took up the similar contentions and further contended that the terms and conditions of the policy were violated and therefore, it is not liable to pay any compensation.

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d) Based on the above contentions, the Tribunal framed appropriate issues. Petitioner was examined as PW1 and the Doctor, who treated the petitioner, was examined as PW2 and Exs.P1 to P17 were marked in evidence. The

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respondent No.2 – Insurance Company examined its official as RW1 and got marked the documents as Ex.R1.

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e) After hearing both the sides, the Tribunal has awarded compensation of Rs.3,57,487/- under different heads as below, and held that the petitioner has contributed negligence to the accident to the extent of 40%.

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1	Towards pain and sufferings	Rs.40,000/-
2	Towardsloss ofamenities	Rs.30,000/-
3	Towardsmedicalexpenses	Rs.1,27,487/-
4	Towards removal of implant	Rs.25,000/-
5	Towards loss of future income	Rs.1,35,000/-
	Total	Rs.3,57,487/-

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Aggrieved by the same, the petitioner is in

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appeal.

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Learned counsel appearing for the appellantpetitioner submits that the accident having occurred on the extreme left side for the petitioner, the principle of res-ipsaloquitor is applicable and therefore, the negligence attributed to the petitioner to the extent of 40% is erroneous. He submits that the negligence could not have been attributed

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to the petitioner for he not possessing the driving license and riding the motorcycle without any insurance. He submits that the petitioner has sustained disability to both the limbs, the Tribunal erred in assessing the disability to the extent of 10%.

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Per contra, learned counsel appearing for respondent No.2 would submit that the disability assessed by the Tribunal at 10% is proper and correct and there is no need for any enhancement. He further submits that the PW1 in his cross-examination has admitted that it was a head on collision and therefore, the negligence attributed to the petitioner to the extent of 40% is proper and correct. Therefore, he defends the impugned judgment in all respects. He also submits that the charge-sheet has also been filed against the petitioner for negligent driving as well as for not possessing a driving license.

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The first aspect to be determined by this Court is

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regarding the contributory negligence. A careful perusal of the records would reveal that the accident has occurred in

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curving. The spot mahazar at Ex.P3 would disclose that the spot of the accident is in a curving of the road, which is about 24 feet Wide. The spot is about 5 feet from the edge of the road. Thus, it is evident that the petitioner was on his left side. The sketch at Ex.P4 depicts the spot of the accident. It is obvious that the driver of the car had not remained on his lane while manoeuvring the curve. Therefore, evidently the negligence on the part of the car driver is on the higher side. When the investigation papers show the same, the oral admission of PW1 is not of much relevance. Hence, considering the spot of the accident and that it was a curve, the contributory negligence on the part of the petitioner is held at 15% and the negligence of the car driver is held at 85%.

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The next aspect is in respect of the nature of the injuries and the disability of the petitioner. The testimony of the PW2 would show that he is the treated Doctor and he has issued the Disability Certificate as per Ex.P14. It is pertinent to note that he speaks of right segmental fracture of the femur, right shaft tibia and right medial malleolus.

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However, he says that there is disability to the left lower limb. Therefore, the Discharge Summery, the Wound Certificate are probed by this Court and it is found that the petitioner had suffered comminuted fracture of tibia and fibula at lower 1/3^rd , fracture of the right femur at the proximal 1/3^rd . Apart from this, few other minor injuries were also suffered by the petitioner. The Discharge Summary produced at Ex.P16 would disclose that the fracture of right femur was treated by CRIF wiring and debridement. The fracture of the left tibia with right medial malleolus was treated with CRIF and ILN. It is pertinent to note that the Discharge Summary gains much importance since, it is recorded with detail elucidations. On careful perusal of these records, it appears that the PW2 has attributed physical disability of 40% to the right lower limb and 10% to the left lower limb.

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The petitioner being aged about 40 years and an agriculturist has suffered the above mentioned fractures and disabilities. Considering the physical disability stated by PW2 and the nature of the injuries suffered, this Court is of the

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view that the petitioner has suffered functional disability of 15%.

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The guidelines issued by the Karnataka State Legal Services Authority (KSLSA) for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.8,000/- for the year 2015. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the appellant-petitioner is accepted as Rs.8,000/- per month. Accordingly, the loss of future income on account of permanent disability is calculated at Rs.8,000/- x 12 x 15% x 15 = Rs.2,16,000/-, by adopting multiplier of ‘15’ for the age of 40 years.

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Consequently, the loss of income during the laid up period is calculated for 4 months at Rs.8,000/- that equals to Rs.32,000/-.

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The Tribunal has awarded a sum of Rs.40,000/towards pain and suffering and considering the nature of injuries and treatment, the same is enhanced to Rs.50,000/under this head.

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The appellant being aged 40 years, would suffer for rest of the life and therefore, it would be just and proper to award Rs.40,000/- under the head loss of amenities in life as against Rs.30,000/- awarded by the Tribunal.

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The Tribunal has not awarded any compensation under the heads conveyance, attendant’s charges and nourishment etc. Hence, a sum of Rs.15,000/- is awarded under the said heads.

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The Tribunal has awarded a sum of Rs.25,000/for removal of the implants. It is noted that the implants from both the lower limbs are to be removed. Therefore, instead of Rs.25,000/-, a sum of Rs.50,000/- is awarded to the petitioner under the head future medical expenses, which would not carry any interest.

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The compensation awarded by the Tribunal at

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Rs.1,27,487/- towards medical expenses do not require any enhancement. Accordingly, the appellant-petitioner is entitled for total compensation as below:

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Sl.	Heads	Award amount
No.
1	Pain and sufferings	Rs.50,000/-
2	Medicalexpenses	Rs.1,27,487/-
3	Loss of income due to permanent physical disability	Rs.2,16,000/-
4	Conveyance, attendant’s and nourishmentfood charges	Rs.15,000/-
5	Loss ofamenities	Rs.40,000/-
6	Loss of income during laid up period	Rs.32,000/-
7	Future medical expenses	Rs.50,000/-
	Total	Rs.5,30,487/-
	Less: 15% towards contributory negligence	Rs.79,573/-
	Total	Rs.4,50,914/-

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18. For the aforesaid reasons, the appeal deserves to

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be allowed in part and hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the Tribunal is hereby modified.

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(iii) The appellant/petitioner is entitled for

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compensation of Rs.4,50,914/- with interest at the rate of 6% per annum (excluding interest on Rs.50,000/- awarded under the head ‘future medical expenses’), from the date of petition till realization, instead of Rs.2,14,487/- awarded by the Tribunal.

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(iv) The respondent No.2 – Insurance

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Company is directed to deposit the compensation amount along with interest within a period of 06 weeks from the date of receipt of a copy of this judgment.

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(v) Rest of the order passed by the

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Tribunal remained unaltered.

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Sd/(C.M. JOSHI) JUDGE

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SBS List No.: 1 Sl No.: 46 CT: AK

Shrishail v. Shankar and Anr.

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Shrishail v. Shankar and Anr.

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