Mr. Keshava M. Poojary Vs Mr. Yogendra Poojary

MR. YOGENDRA POOJARY S/O RAMA POOJARY, AGED ABOUT 45 YEARS, R/AT D NO 5-69, KOMALI HOUSE, SAJIPA MUDA VILLAGE, NAGRI POST, BANTWAL TALUK, D.K. DISTRICT – 575 231.

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ROYAL SUNDARAM GENERAL INSURANCE CO. LTD., BRANCH OFFICE: III FLOOR, EMKAY’S SHALIMAR COMPLEX, KANKANADY, MANGALORE, D.K.DISTRICT- 575 002 REPERESENTE BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI. H.S.LINGARAJ., ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY / SET ASIDE THE JUDGMENT AND AWARD DATED 31.01.2020 PASSED IN MVC NO.1776/2017 PASSED BY THE I ADDITIONAL DISTRICT JUDGE & II ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, MANGALURU (DK) AND CLAIM PETITION BE ALLOWED AS PRAYED FOR BY ALLOWING THIS APPEAL IN THE ENDS OF JUSTICE.

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

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CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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On a very short point on two grounds, the appellant/claimant is calling in question the judgment and award dated 31.01.2020, passed in M.V.C.No.1776/2017, on the file of the I^st Additional District Judge & II Addl. Motor Accident Claims Tribunal, Mangaluru (DK) (hereinafter referred to as ‘the Tribunal’ for brevity).

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The date of accident, involvement of the vehicle and the injuries suffered in the accident are not in dispute. The only dispute involved in this

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appeal is the contributory negligence and also inadequate compensation.

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Heard Sri.G.Ravishankar Shastry,

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learned counsel appearing for the appellant and Sri.H.S.Lingaraju learned counsel appearing for respondent No.2. Respondent No.1 though served has remained unrepresented.

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Sri.Ravishankar Shastry.G, argued on two grounds:

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i) The Tribunal in the absence of any

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evidence by the respondent / insurance company and in the presence of Police reports, especially Sketch, Exhibit-P8 erred in fastening negligence of 50% on the injured claimant;

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ii) So far as the quantum of the compensation is concerned, the Tribunal has not awarded appropriate compensation under the head ‘loss of amenities’ and also towards ‘loss of income

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during laid up period’. Having regard to the injuries suffered by the claimant i.e., five fractures and other injuries resulting in disability.

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So far as the first ground is concerned, Sri.Ravishankar Shastry.G, taking this Court through Exhibit-P8 submitted that the documents visibly shown that the driver of the offending autorickshaw has driven it on the extreme right side of the road and caused the accident. In view of the same, the appellant sought intervention of this Court in setting-aside the contributory negligence fastened on the injured/claimant

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Refuting the submissions of Sri.Shastry, Sri.H.S.Lingaraju, learned counsel for respondent No.2, submits that the appellant during the crossexamination has admitted that he does not possess the driving license. The Tribunal having taken the same into consideration that the appellant/

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claimant has not produced the license has fastened the contributory negligence at 50%, which is just and proper and does not call for interference of this Court.

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So far as the quantum is concerned, the Tribunal has considered the income at Rs.12,000/p.m., instead of Rs.11,000/- fixed in the chart prepared by the Karnataka State Legal Services Authority (for short ‘KSLSA’) and hence, the award does not call for enhancement at the hands of this Court and accordingly sought for dismissal of appeal.

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In reply to the contention of

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Sri.H.S.Lingaraju, Shri.Shastry with all vehemence contends that the admission in the crossexamination regarding the Driving License and nonproduction of the same cannot give a right to the

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insurance company to seek contributory negligence against the injured/claimant.

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To buttress his arguments he relied on the judgment of Hon’ble Apex Court in the case of SUDHIR KUMAR RANA V. SURINDER SINGH¹

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wherein Hon’ble Apex Court at paragraph No.9 has

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clearly held that mere absence of license will not give a right to the insurance company to seek contributory negligence on the rider or the driver of the vehicle, in the absence of any evidence to that effect.

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Having heard the learned counsel for the parties, perused the appeal papers and so also the trial Court record, the points that would arise for consideration of this Court are as under:

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“i) Whether the Tribunal is justified in fastening 50% contributory negligence on the

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1 (2008) 12 SCC 436

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injured/appellant in the absence of evidence lead by the insurance company to that effect?

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ii) Whether the appellant has made out a case for enhancement of compensation?”

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My answer to the above points for

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consideration are as under:

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i) Point No.1 : Negative ii) Point No.2 : Partly affirmative

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REGARDING CONTRIBUTORY NEGLIGENCE:

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A perusal of Exhibit-P8 i.e., Spot Sketch clearly and manifestly shows that it is the driver of the auto-rickshaw who had gone on the wrong side of the road and caused the accident. In these circumstances, the reasons assigned by the Tribunal in holding that the rider of the motorcycle, who had got another 4 feet of road could have avoided the accident is not sustainable in law. The reason being the driver of the offending auto-

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rickshaw who was coming on the opposite suddenly swerved on a wrong side and caused the accident. The mere fact that 4 feet road is available, let alone, cannot be a ground to hold that the appellant has caused contributory negligence, when admittedly in the spot sketch, clearly shows that the driver of the offending auto-rickshaw was responsible for the accident. In these circumstances, the findings of the Tribunal regarding the contributory negligence is erroneous in law and requires to be set-aside and accordingly set-aside, holding that the driver of the offending auto-rickshaw is responsible for the accident, and answering issue No.1 in ‘affirmative’, than ‘partly in affirmative’ as held by the Tribunal.

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REGARDING ENHANCEMENT:

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So far as enhancement of compensation is concerned, this Court finds force in the

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arguments of the learned counsel for the appellant.

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The Tribunal considering the injuries suffered has appropriately awarded compensation under the head pain and suffering, however, not considered the case for awarding appropriate compensation

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under the head ‘loss of amenities’, so also ‘loss of income during laid up period’. Though an attempt is made by the learned counsel appearing for the insurance company by contending that the Tribunal has graciously taken the income on higher side at Rs.12,000/- than Rs.11,000/-, as fixed under the chart of the KSLSA and awarded the compensation. This Court is of the opinion that the appellant was working as a vendor and in view of the documents produced, the Tribunal has appropriately considered the income at Rs.12,000/- instead of Rs.11,000/-. In these circumstances, the appellant has made out a case for awarding appropriate compensation under the head ‘loss of amenities’ which would be

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Rs.50,000/- as against Rs.10,000/- awarded by the Tribunal.

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So far as ‘loss of income during laid-up

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period’ is concerned, considering the injuries suffered i.e., four fracture injuries including major bone i.e., femur bone and as the appellant was an in-patient for a period of 37 days, the appellant would have taken rest at least for a minimum period of 6 months which comes to Rs.12,000 x 6 = Rs.72,000/- instead of Rs.48,000/- awarded by the

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Tribunal. Under these two heads, the compensation awarded by the Tribunal is enhanced and the remaining heads stands unaltered. Accordingly, both the questions are answered in favour of the appellant/claimant and against the respondent/insurance company.

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In summary, the total compensation re-

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determined by this Court are as follows:

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Sl. No.	HEAD			COMPEN By the Tribunal	SATION By this Court
1.	Pain and Sufferings	:	Rs.	1,00,000/-	1,00,000/-
2.	Attendant Charges, Extra Nutritious food and conveyance expenses	:	Rs.	39,000/-	39,000/-
3.	Medical Expenses	:	Rs.	55,257/-	55,257/-
4.	Loss of Future Income	:	Rs.	1,41,120/-	1,41,120/-
5.	Loss of earning during laid up period	:	Rs.	48,000/-	72,000/-
6.	Loss of Amenities	:	Rs.	10,000/-	50,000/-
	TOTAL	:	Rs.	3,93,377/-	4,57,377/-

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Accordingly, the appeal is allowed. The

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total compensation re-determined by this Court works out to Rs.4,57,377/as against Rs.3,93,377/- awarded by the Tribunal. The redetermined compensation shall carry interest at 6% per annum from the date of filing of the petition till realization.

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For the foregoing reasons, this Court proceeds to pass the following:

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HC-KAR

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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 31.01.2020, passed in M.V.C.No.1776/2017, on the file of the I^st Additional District Judge & II Addl. Motor Accident Claims Tribunal, Mangaluru (DK) is modified;

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iii) Contributory negligence of 50% fastened on the appellant by the Tribunal is setaside

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iii) The appellant – claimant is entitled for redetermined compensation of Rs.4,57,377/- along with along with interest at 6% per annum from the date of filing of the petition till realization.

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iv) The re-determined compensation amount shall be deposited by the respondent No.2 - Insurance Company, within Six weeks from the date of receipt of a copy of this order after deducting the compensation

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