Sri.Jagadeesh Ram Prajapath Vs Nayaz Ahmed

(BY SRI.H.C.VRUSHABHENDRAIAH, ADVOCATE FOR R-2, R1(A), R1(C), R1(D) - SERVICE OF NOTICE IS HELD SUFFICIENT, VIDE ORDER DATED 31.10.2019, R1(B) MINOR, REPRESENTED BY R1(A) )

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.07.2014 PASSED IN MVC NO.772/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT, TUMKUR, 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 challenging the judgment and award dated 14^th July 2014, passed by the II Addl.District and Sessions Judge and MACT, Tumakuru, (for short `Tribunal'), in MVC No.772/2012, 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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Brief facts of the case are that, on 01.10.2011, around 11.30 p.m., the claimant was going on the motorcycle bearing registration No.KA-06-V-2207 alongwith pillion rider Jayaprakash. When he reached Bhavikatte petrol bunk on National Highway No.4, the said vehicle met with an accident due to rash and negligent riding of the motorcycle bearing registration No.KA-06-EC4236. As a result of the impact, claimant sustained injuries. Immediately, he was shifted to NIMHANS Hospital, Bengaluru and thereafter, to M.S.Ramaiah

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Hospital, wherein he took treatment as inpatient. For the said reasons, claimant prayed for awarding of compensation.

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Before the Tribunal, respondent No.1 filed written statement denying the averments made in the claim petition. It is contended that the claimant himself was responsible for causing the accident in question and prayed to dismiss the claim petition.

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The respondent No.2/insurer of the offending motorcycle denied the contents of the claim petition. It is stated that riders of both the motorcycles were not holding effective and valid driving licence. Therefore, respondent No.2 is not liable to pay the compensation. With these reasons, 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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Claimant to prove his case himself examined as PW-1 and examined the doctor as PW-2 and marked 15

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documents from Exs.P-1 to P-15. On behalf of the respondents, one witness was examined as RW-1 and no documents were marked.

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After hearing both parties, the Tribunal awarded

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following amounts of compensation:

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Pain and agony	Rs.40,000/-
Conveyance	Rs.5,000/-
Attendant charges and nourishing food	Rs.5,000/-
Medical expenses	Rs.1,10,860/-
Loss of income	Rs.13,500/-
Discomfort and loss of amenities of life	Rs.20,000/-
Future medical expenses	Rs.60,000/-
Total	Rs.2,54,360/-

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9. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

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10. Learned counsel for the appellant submits that the Tribunal has erroneously held that riders of both motorbikes caused accident and apportioned the

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negligence between riders of the motorcycles. The respondents have not examined eye witnesses to show that major negligence was of the claimant. The claimant came to the other side of the road, since the other part of the highway was under repair. That was noted in the impugned judgment. The Investigating Officer in the charge sheet has clearly stated that accident has taken place due to negligence of riders of both the motorcycles. Under such circumstances, the Tribunal ought to have apportioned the negligence equally instead of putting more negligence on the claimant. It needs to be reconsidered by this Court.

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11. Learned counsel for the claimant further stated that claimant had examined the treating doctor as PW-2. He has clearly stated that claimant had suffered permanent disability of 25% to the whole body, that was not considered by the Tribunal without any justifiable reasons. He further contended that claimant was selling the plastic articles. The Tribunal did not believe the same.

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At least, it could have taken into consideration of the same while awarding the compensation. He further stated that the Tribunal has awarded meagre amount of compensation on all the heads, except the medical expenses. Thus, he prayed for enhancement of the compensation.

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12. Learned counsel for respondent No.2-insurer vehemently contended that the entire negligence was on the part of the claimant. He went to a wrong side of the road and he was not holding effective and valid driving licence. Therefore, the question of negligence of the rider of the other vehicle did not arise. However, the Tribunal has taken the negligence contributed by the claimant as 70%. Since the insurance company has not filed any appeal, it does not mean that it cannot challenge the same, at the most, it can be kept as it is. He further contended that amount of compensation awarded under other heads is just and proper and they do not call for any interference by this Court.

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13. He further contended that the claimant has not led any reliable evidence to prove that he sustained loss of future earning capacity due to permanent disability. PW-2 doctor, in his evidence has not clearly mentioned regarding functional disability. Hence, the Tribunal has rightly rejected the claim of the claimant with respect to loss of future income due to permanent disability. Hence, prayed to dismiss the appeal with costs.

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14. Following questions arises for consideration :

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(i) Whether the Tribunal is justified in holding that the contributory negligence on rider of both the vehicles is in the ratio of 70:30 without any justifiable reasons:

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(ii) Whether the claimant is entitled for enhancement of compensation?

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(ii) What order?

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Point No.1 :

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15. PW-1 is the claimant. In his evidence, he has reiterated the facts of the case. In his cross-examination, it was not brought out that he was solely responsible for

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causing the accident in question. The Investigating Officer after investigating the matter, filed the charge sheet. The Investigating Officer has specifically stated in the charge sheet that accident had taken place due to negligence on the part of rider of both the motor vehicles. Looking at the charge sheet and its enclosures, the finding of the Investigating Officer that both riders are responsible for the accident in question, is probable. The Tribunal has not assigned any reasons as to why it has assessed the negligence of the claimant at 70% when the Investigating Officer himself says that both riders are equally responsible for the accident. Therefore, there are no justifiable reasons for the Tribunal to hold that claimant had contributed to an extent of 70% in causing the accident. Hence, the said findings needs interference by this Court.

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16. Claimant has produced the wound certificate at Ex.P-6 and medical records. They show that the claimant has sustained following injuries :

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1. Lacerated wound over right side of forehead (8x6x2) cm.

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2. Pain and tenderness and deformity of left wrist joint,

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3. Swelling and tenderness over right ankles joint and knee joint.

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17. Claimant underwent surgery in M.S.Ramaiah hospital, Bengaluru. PW-2 who has treated the claimant in his evidence has mentioned the disability to each part of the body wherein claimant had sustained fractures and assessed the total disability as 25% to the whole body.

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18. The Tribunal has considered the income of the claimant as Rs.4,500/- per month, however, the Tribunal has not assessed the loss of future income due to disability. When the claimant is said to be a businessman or even if it is believed that he has not proved that he was

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a businessman, at least, the Tribunal could have considered that he was a coolie and earning his livelihood. In that event, fracture of scapula would definitely affect his earning capacity. Therefore, the Tribunal has erred in not considering this fact.

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19. There are no acceptable materials on record to prove the income of the claimant, therefore, notional income of the claimant has to be assessed. As per the chart prepared by the Karnataka State Legal Services Authority, the notional income of the victim of an accident of the year 2011, could be taken as Rs.6,500/- per month. Same could be applied to the facts of the present case.

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20. The medical records shows that claimant was aged about 35 years at the time of the accident and as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma -vs- Delhi Transport Corporation and others, reported in (2009) 6 SCC 121, the suitable multiplier applicable in the present case is `16'.

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21. Considering the age of the claimant, nature of the injuries sustained by the claimant and his occupation, permanent disability affecting the earning capacity of the claimant is to be taken as 15%. On the basis of the same, loss of future earning capacity of the claimant has to be calculated. Even the amount of compensation awarded by

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the Tribunal under other heads are on the lower side, and

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the same needs to be enhanced.

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22. Accordingly, following compensation is awarded:

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Particulars	Amount in Rs.
Pain and agony	75,000/-
Conveyance, attendant charges and nourishing food	25,000/-
Medical expenses	1,10,860/-
Loss of income during laid up period (Rs.6,500/- x 3)	19,500/-
Loss of future earning capacity due to disability (Rs.6,500/- x 12 x 16 x 15%)	1,87,200/-
Loss of amenities of life and future unhappiness	30,000/-
Future medical expenses	60,000/-
Total	5,07,560/- Rounded off to 5,08,000/-
Claimant entitled for 50% of same	2,53,780/-
Less : amount awarded by the Tribunal (30% of Rs.2,54,360/-)	76,308/-
Enhancement -	1,77,472/-
Rounded off -	1,78,000/-

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Thus, the claimant is entitled for enhancement of compensation of Rs.1,78,000/- with interest at 6% p.a. on the enhanced amount from the date of petition till its realization.

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