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Judgment
These appeals are filed challenging the legality and correctness of the common judgment and award dated 13/8/2010 made in MVC No.3630/2008 and MVC No.3629/2008 by the XIII Addl. Small Cause Judge, Member, MACT, Court of Small Causes, Bangalore. Hence, above appeals are clubbed together and disposed of by this common judgment.
In MVC No.3630/2008, the Legal representatives of the deceased Akkallappa and the claimant namely Anjanappa in MVC No. 3629/2008 filed claim petitions seeking compensation on account of the accident that occurred on 30.3.2008. It is their further case that claimant in MVC No.3629/2008 was proceeding on a Motor Cycle bearing No. KA 03 EK 3372 along with his uncle deceased Akkallappa as pillion rider towards Kolar. When they reached near Kajikallanahalli on N.H.-4, an APSRTC bus bearing registration No. AP-11-Z-4098 which was proceeding from Kolar to Bangalore driven by its driver came in a rash and negligent manner, dashed against the Motor cycle, as a result of which, rider as well as the pillion rider fell down and sustained grievous injuries all over the body. Immediately after the accident pillion rider was shifted to the hospital. However, during the course of treatment Akkallappa - pillion rider succumbed to the injuries; whereas the claimant in MVC No.3629/2008 sustained grievous injuries. Initially he was shifted to SNR hospital and thereafter he was referred to R.L. Jalappa hospital. He was taken treatment from 30.3.2008 to 7.4.2008 as inpatient. He has also taken treatment in NIMHANS, hospital, Bangalore. He spent a huge money for the treatment.
In MVC No.3630/2008, the legal representatives of the deceased contended that at the time of death the deceased was aged about 55 years and working as a mason, earning Rs.6000/- p.m. In view of his death, the family has lost the bread earner of the family. Hence, sought for compensation of Rs.10,00,000/-.
Whereas, the claimant in MVC No.3629/2008 contended that prior to the accident he was working as a mason and earning Rs.6000/- p.m. On account of the accident, he has sustained permanent disability and he cannot do the work which he was doing earlier, hence sought for compensation of Rs.5,00,000/-.
In response to the notice issued by the Tribunal, the APSRTC as well as the owner of the Motor cycle filed their written statements. The APSRTC in the written statement denied the entire claim and also contended that due to the rash and negligent riding of the motor cycle, the accident occurred. It has contended that the rider was not holding a valid and effective driving licence as on the date of the accident, hence, sought for dismissal of the claim petition.
The owner as well as the Insurer of the Motor cycle in the written statement denied the averments made in the claim petition and also contended that due to the rash and negligent driving of the driver of the APSRTC bus, the accident has occurred, hence, sought for dismissal of the claim petition as against Respondents No.2 and 3.
On the basis of the pleadings of the parties, the Tribunal has framed necessary issues. The claimants in order to prove their respective cases have adduced both oral and documentary evidence. In MVC No.3629/2008, the claimant-
Anjannppa was examined as PW1 and in MVC
No.3630/2008, the son of the deceased Akkallapa was
examined as PW2. The doctor who has treated Anjanappa is examined as PW3 and got marked documents as Exs.P1 to P.11. On behalf of the respondents the driver of the offending bus has examined as RW1 and insurer of the motor cycle as RW2. The insurance policy was got marked as Ex.R.2 and the photographs of the spot is marked as Ex.R.1.
The Tribunal after appreciating the oral and documentary evidence adduced by the parties and also taking into consideration the IMV report, sketch of the spot, Panchanama, copy of the complaint and the charge sheet, has held that the driver of the bus drove the bus to the extreme right side of the road and dashed against the Motor cycle and the police have charge sheeted the driver of the offending bus, therefore, held that due to the actionable negligence on the part of the driver of the bus, the accident occurred.
The Tribunal after appreciating the evidence and taking into consideration the income of the deceased at Rs.4000/- p.m. deducting 1/3 towards his personal expenses, in MVC No.3630/2008,awarded compensation of Rs. 3,92,400/- with 6% interest p.a. from the date of the petition till realization.
Whereas in MVC No.3629/2008, the Tribunal has held that the claimant has sustained injury to the scalp and fracture of medial mellolli and he has taken treatment as inpatient for a period of 19 days from two different intermediate period and spent Rs.1,00,000/- towards treatment. Though, the doctor assessed the disability to an extent of 15% to the whole body, the Tribunal taking the disability at 10% and income of the claimant at Rs.4000/- p.m., awarded a sum of Rs.2,02,400/- with interest at 6% p.a. Since, due to the actionable negligence on the part of the driver of the bus, liability was fastened on the APSRTC bus to compensate the claimants. The APSRTC being aggrieved by the quantum of compensation and also fastening of the liability, field these two appeals.
Sri. D Vijayakumar, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal fastening the liability on the APSRTC on account of the rash and negligent driving of the driver of the bus, is contrary to law and also the quantum of compensation awarded is on the higher side. He further contended that while the bus was proceeding towards Bangalore side and the accident occurred on the left side of the bus. Whereas the rider of the motor cycle coming from the left side of the cross road and dashed against the right side of the bus. Though, the driver of the bus observing the rash and negligent driving of the two wheeler, stopped the bus on the extreme left side, but the two wheeler hit the bus. Though, the tribunal having appreciated the oral and documentary evidence, fastened the liability on the APSRTC is contrary to law. The photographs produced by the appellant has not taken into consideration by the Tribunal while appreciating the evidence on record, is also contrary to law, which clearly shows that the bus is on the extreme left side of the mud road. Whereas the two wheeler came from left side of the road and dashed against the right side of the bus. Due to the negligence on the part of the rider of the two wheeler the accident occurred, hence sought for setting aside the judgment and award.
On the other hand, Sri. N Gopalakrishna, learned counsel appearing for the claimants argued supporting the judgment and award passed by the Tribunal and the quantum of compensation awarded is just and fair compensation. He further contended that in order to avoid future litigation the claimants have not challenged the judgment and award passed by the Tribunal. Further he contended that the rider of the Motor Cycle was proceeding from Bangalore towards Kolar; whereas the APSRTC bus coming from Kolar to Bangalore from extreme right side of the road and dashed against the motor cycle, which was proceeding on the extreme left side of the road. The sketch prepared by the competent authority clearly discloses that instead of going left side of the road, the bus was proceeding on the extreme right side of the road and dashed against the Motor Cycle. After enquiry, the police have charge sheeted against the driver of the bus. A criminal case is pending against the driver of the bus. The documents produced by the parties clearly disclose that due to the negligence on the part of the driver of the bus, the accident occurred. The tribunal after taking into consideration all these aspects of the matter, fastened the liability on the APSRTC, hence sought for dismissal of the appeal.
I have carefully considered the arguments addressed by the learned counsel appearing for both parties and the judgment and award passed by the tribunal as well as the oral and documentary evidence. The dispute in this appeal is with regard to the negligence and also with regard to the quantum of compensation awarded.
With regard to the quantum of compensation is concerned, though the injured as well as the deceased were working as masons and earning Rs.4000/- p.m. and deducting 1/3 towards personal expenses of the deceased and by applying relevant multiplier awarded a just and fair compensation. The accident was occurred in the year 2008 and the income taken by the Tribunal at Rs.4000/- p.m. is just and proper. Whereas the injured claimant has sustained fracture of medial melloli and he has taken treatment for a period of 19 days as inpatient and undergone surgery also. In that view of the matter, the compensation awarded in both cases is in accordance with law. Hence, the appeals are to be dismissed in so for as quantum of compensation is concerned.
With regard to rash and negligence is concerned, the sketch prepared by the competent authority clearly discloses that the bus was proceeding towards Kolar from Bangalore; whereas the motor cycle was proceeding towards Kolar. The record clearly discloses that the accident occurred on the right side of the Kolar-Bangalore Road. The sketch prepared by the police officer clearly discloses that the bus moved to the extreme right side of the road instead proceeding on the left side of the road. Further the police have charge sheeted the driver of the APSRTC bus. The driver of the bus in his evidence clearly admitted that the police have charge sheeted against him on account of his rash and negligent driving. The appellant trying to defend its case by producing the photographs to show that the bus was on the extreme left side of the road and rider of the motor cycle came from left side of the bus and dashed against the right side of the bus, which was not accepted by the Tribunal. Whereas the police records and the sketch produced by the competent authority i.e., the MV Inspector clearly shows that the accident occurred on the Kolar-Bangalore road and right side bumper of the APSRTC bus was damaged. Hence, it is clear that the bus came from extreme right side of the road and dashed against the Motor cycle. The Tribunal after appreciating the oral and documentary evidence adduced by the parties and by carefully considering the voluminous documents produced by the parties, found that due to the actionable negligence on the part of the APSRTC bus, the accident occurred hence fastened the liability on the APSRTC. I found there is no irregularity or illegality in the judgment and award passed by the Tribunal. Hence, both appeals require to be dismissed. Accordingly, I pass the following:
:ORDER:
Accordingly, the Judgment and Award passed by the Tribunal is upheld. The appeals filed by the APSRTC are dismissed.
The amount in deposit in both appeals be transferred to the MACT for disbursement.