Joy @ Joseph Moben Vs Vasantha Suvarna

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.11.2013 PASSED IN MVC NO.235/2007 ON THE FILE OF THE MEMBER MACT & III ADDL.DISTRICT & SESSIONS JUDGE, MACT, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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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 against the judgment and award dated 08.11.2013 passed by the Motor Accidents Claims Tribunal, D.K., Mangalore (for short 'the Tribunal') in MVC No.235/2007 seeking enhancement of the compensation.

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The parties are referred to as per their rankings before the Tribunal.

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The brief facts of the case are that, on 28.07.2006 at around 2.00 p.m. near Mahadwara of Shree

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HC-KAR

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Durgaparameshwari Temple at Bappanadu village of

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Mangalore taluk, the petitioner, while boarding the bus bearing Reg.No.KA-21-8050, its driver suddenly drove the

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bus negligently, as a result, the claimant fell down from the bus and sustained fractures of right leg and other injuries. He took treatment at Tejaswini hospital at Mangalore and spent more than Rs.3,00,000/- towards medical expenses. He was aged about 42 years at the time of the accident and earning Rs.6,000/- per month by working as a mason. The claimant has suffered permanent disability due to above injuries. With these reasons, prayed to award compensation of Rs.20,00,000/-.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the said bus. Respondent No.2 denied the contentions of the claimant and denied its liability to pay the compensation on the ground of false implication of the bus, hence there was delay of 5 months in filing the complaint, before the Court about accident. Hence, prayed to dismiss the claim petition.

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HC-KAR

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The Tribunal on the basis of pleadings framed necessary issues. The claimant to prove his case, examined three witnesses as PWs-1 to 3 and marked documents as Exs.P1 to Ex.P-163. The respondent No.2 examined one witness as RW1 and marked Ex.R1. The Tribunal after hearing both the parties and appreciating the material placed on record held that the accident occurred due to contributory negligence of the claimant as well as the driver of the bus. The Tribunal apportioned the negligence in the ratio of 50:50 between them. The Tribunal assessed the income of the claimant as Rs.3,000/- per month, applied multiplier as '14' and assessed disability at 20% to the whole body and awarded following amount of compensation under different heads:

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Sl.No	Particulars	Amount in (Rs.)
1.	Pain and agony	20,000
2.	Medical expenses	53,946
3.	Attendant charges	3,300
4.	Food and nourishment	5,000
5.	Traveling expenses	1,000
6.	Loss of amenities and discomfort	10,000
7.	Loss of income during laid off period.	9,000
8.	Future medical expenses	10,000
9.	Loss of future earning capacity	1,00,800

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HC-KAR

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due to disability
Total	Rs.2,13,046
50% self negligence	1,06,523

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The claimant being aggrieved by the

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compensation awarded by the Tribunal and also by its finding, that the claimant was negligent to an extent of 50% in causing the accident, challenged the award in the present appeal.

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I have heard the arguments.

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determination:

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i. Whether the Tribunal is justified in holding that accident occurred due to contributory negligence of claimant and driver of the bus in the ratio of 50:50?

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ii. Whether the claimant is entitled to enhancement?

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Point No.1: On perusal of the materials available

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on record, it is evident that the case of the claimant is not consistent. He filed complaint before JMFC Court under

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HC-KAR

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Section 200 of Cr.P.C, stating that he was inside the bus, when the accident occurred and that the driver of the bus suddenly drove the vehicle, due to which he fell down from the bus. During the evidence, PW-1 - claimant has stated that when he tried to board the bus, the driver of the bus suddenly drove the vehicle, due to which he fell down from the bus. During his cross-examination, he stated that the said bus was stopped at Bappanadu bus stop. He was talking to his friends, at that time, driver suddenly drove the bus and he was thrown out of the bus. He examined PW-3; he has stated before the Court that when PW-1 was standing on the foot board of the bus, driver of the bus suddenly drove the vehicle negligently because of which he fell down and sustained injuries. Ex.P8 - discharge summary, reveals that:

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"History of fall from height and sustained injury to right ankle and back."

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Respondent No.2 examined RW1 i.e., driver of

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the bus. According to him, the claimant, without knowledge

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of the driver of the bus, went to the top of the bus, to keep luggage. He had no idea that injured was on the top of the

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HC-KAR

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bus. He drove the bus. Claimant fell down from the roof of the bus. In his cross-examination, the driver of the bus stated that the petitioner fell from top of the bus due to his own negligence. He was not responsible for the incident. However, he also states that a criminal case was registered against him before the JMFC, Mangaluru and that it was disposed of two days prior to his testimony.

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It is pertinent to note that either of the parties have produced copy of the charge sheet or the judgment passed by the criminal court. Relying on the evidence of RW-1, it appears that the Tribunal held that the driver as well as the claimant were equally responsible for causing the accident.

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As stated in the above paragraphs, the case of the claimant is not consistent. Claimant is trying to hide some material facts. He might be standing on the foot board and chatting with his friend, in that process, when driver of the bus suddenly drove the bus he fell down and sustained injury. If the claimant fell down from the top of

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HC-KAR

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the bus then he would have suffered from much more grievous injuries. He was an accused in the criminal case registered for the accident in question. He also suppressed some facts. Considering the contentions of the parties, the Tribunal held that both are equally negligent. It appears that even the complainant has not registered the complaint and considering all these materials, the finding of the Tribunal that accident was caused due to negligence of the claimant and the driver of bus and both equally are responsible for the accident, it does not call for interference by this Court. Accordingly, I answer point No.1 in the 'affirmative'.

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Point No.2: The accident occurred during the year 2006. The Tribunal assessed the income of the claimant as Rs.3,000/- per month, his age as 40 years applied multiplier as '14' and disability as 20% to whole body. It does not call for any interference. Considering the receipts produced by the claimant, the Tribunal assessed the medical expenses as Rs.53,946/-. On re-appreciating the evidence available on record, the amount of compensation

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HC-KAR

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awarded under the head i.e. 'pain and suffering, attendant charges, food and nourishment, traveling expenses, loss of amenities are on the lower side that requires enhancement. Accordingly, the following amount of compensation is awarded:

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Sl.No	Particulars	Amount in (Rs.)
1.	Pain and suffering	40,000
2.	Medical expenses	53,946
3.	Attendant charges, special diet, conveyance expenses	25,000
6.	Loss of amenities and discomfort	25,000
7.	Loss of income during laid off period.(Rs.3,000x3)	9,000
8.	Future medical expenses	10,000
9.	Loss of future earning capacity due to disability(3,000x12x14x20%)	1,00,800
	Total	Rs.2,63,746/-
	Rounded off	Rs.2,64,000/-
	50% contributory negligence (rounded off)	Rs.1,32,000/-
	Awarded by the Tribunal	Rs.1,06,523/-
	Total enhancement	Rs.25,477/-

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Claimant is entitled to interest on the enhanced

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amount @ 6% per annum from the date of petition till its realization. Respondents are jointly and severally liable to pay the same.

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HC-KAR

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Accordingly, I answer point No.2 'partly in the affirmative' and 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 impugned judgment and award dated 08.11.2013 passed by the Member, MACT and III Additional District and Sessions Judge, D.K., Mangaluru in MVC.No.235/2007 is modified.

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iii. The claimant is entitled to enhancement of Rs.25,477/- with interest @ 6% per annum from the date of the petition till its realization.

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iv. Respondent No.2 shall deposit the said amount within a period of 6 weeks from the date of this award.

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

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vi. Since the amount of enhancement is marginal the entire amount is ordered to be released to claimant on due identification.

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