AI Structured Summary
Not yet generated for this judgment
Judgment
K.N. Keshavanarayana, J.—As these two appeals, one by the claimant and the other by the owner of the offending vehicle are directed against the judgment and award dated 30.09.2004 passed by the Judge, Court of Small Causes and Additional Motor Accidents Claims Tribunal, Mysore, in MVC No. 46/2004, they were heard together and are being disposed of by this common judgment.
The appellant in MFA No. 653/2005 is the claimant while the appellant in MFA No. 11149/2005 is the owner of the lorry bearing registration No.TAQ 8259.
The claimant filed claim petition u/s 166 of the Motor Vehicles Act (for short ''M.V. Act'') seeking compensation of Rs. 3,00,000/- for the personal injuries sustained by him in the Road Traffic Accident that occurred on 02.08.1995 at about 7.00 a.m., near Valmiki Road Junction, V.V. Mohalla-Vontikoppal, Mysore, as a result of the lorry bearing registration No. TAQ 8259 dashing the moped ridden by the claimant. According to the claimant, immediately after the accident he was shifted to K.R. Hospital, Mysore, where he was treated as inpatient for 50 days and in spite of the best treatment, he has suffered permanent disability, which has come in the way of his future enjoyment of life and earning capacity.
The claim petition was contested by the owner as well as the Insurance Company which had been impleaded as respondent No. 2. The owner of the lorry inter alia contended that the accident was not due to the negligence of the driver of the lorry, but on the other hand, the claimant himself, as rider of the moped, rode the same in a rash and negligent manner and collided with the lorry and therefore, he is not entitled for any compensation. He also contended that the compensation claimed is excessive and exorbitant.
The Insurance Company contended that it has not issued any policy of insurance in respect of the lorry in question in favour of the owner of the lorry, therefore, the Insurance Company is not liable to indemnify the owner.
The Tribunal on assessment of the oral and documentary evidence by the judgment under appeal answered the issue regarding actionable negligence in favour of the claimant holding that the accident was solely due to the negligence of the lorry driver. Having regard to the nature of the injuries sustained by the claimant, the Tribunal quantified the compensation payable at Rs. 51,075/- under different heads as under:
1) Pain and Suffering - Rs. 25,000/- 2) Medical Expenses - Rs. 20,000/- 3) Loss of earning During treatment period - Rs. 6,075/- ______________
Total - Rs. 51,075/-
The Tribunal further held that no policy had been issued by the 2nd respondent-Insurance Company as on the date of the accident and that the policy issued by the 2nd respondent, as evidenced by Ex.P3, was issued for the period from 14.08.1995 to 13.08.1996, whereas, the accident in question occurred on 02.08.1998 and therefore, as on the date of the accident the policy issued by the 2nd respondent-Insurance Company was not in force. In that view of the matter, the Tribunal allowed the petition in part and directed the owner of the offending lorry to deposit the entire compensation amount with interest at 6% pa. from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation, the claimant has filed the appeal, while the owner being aggrieved of the judgment and award passed by the Tribunal, has also preferred an appeal.
In MFA No. 11149/2005, the Insurance Company has been impleaded as Respondent No. 1 while in MFA No. 653/2005, the Insurance Company has been impleaded as Respondent No. 2. The Respondent -Insurance Company is represented by Sri. A.M. Venkatesh, learned advocate. I have heard the learned counsel appearing on both sides and perused the record.
Sri. M.S. Rajendra Prasad, learned Senior Counsel appearing for the appellant in MFA No. 11149/2005 contended that the Tribunal has committed error in holding that the accident was due to the negligence of the lorry driver and the said finding is perverse in view of the fact that the claimant drove the moped without possessing valid license and he was not knowing the art of driving the vehicle on public road, as such, the accident was solely due to the negligence of the claimant himself and therefore, he is not entitled for any compensation and that the Tribunal ought to have dismissed the claim petition, on that ground itself.
On the other hand, Sri. Renukaradhya, R.D., learned counsel appearing for the claimant contended that the finding of the Tribunal that the accident was solely due to the negligence of the lorry driver is in accordance with the evidence on record in view of the fact that the driver of the lorry himself has pleaded guilty before the Criminal Court which clearly proved that he was negligent in driving the lorry and his negligence was responsible for the accident and therefore, there is no substance in the appeal filed by the owner. He further contended that having regard to the nature of the injuries sustained by the claimant, the duration and nature of the treatment, the compensation awarded by the Tribunal is on the lower side and is grossly inadequate. It is his submission that the Tribunal has not awarded the compensation under legally permissible heads while assessing the compensation payable in a claim petition u/s 166 of the M.V. Act for personal injuries.
Sri. A.M. Venkatesh, learned counsel for the Insurance Company submitted that in view of the clear finding of the Tribunal that there was no insurance policy in force as on the date of the accident, the Tribunal is right in dismissing the claim petition against the Insurance Company and in spite of such a clear finding, the appellants have filed these appeals by unnecessarily impleading the Insurance Company as party, therefore, these appeals are liable to be dismissed as against the Insurance Company with exemplary costs.
I have bestowed my serious consideration to the submissions made on both sides. As could be seen from the suggestions put to claimant examined as PW. 1 during the cross-examination on behalf of the owner of the lorry, there appears to be no dispute with regard to the accident as a result of the collision between the lorry and the moped. It has been suggested to PW.1 during the cross-examination that he (PW.1) himself rode the moped in a rash and negligent manner and dashed against the lorry. The owner examined as RW.1, has admitted the accident as a result of collision between the lorry and the moped. Therefore, only question to be considered is, as to whether the Tribunal is justified in holding that the accident was due to the negligence of the lorry driver.
The driver of the lorry has not been examined before the Tribunal. The owner of the lorry contended that he was also present in the lorry at the time of the accident. However, there is absolutely no supporting evidence to indicate that he was present in the lorry at the time of accident. Assuming for the purpose of argument that the owner was also present in the lorry at the time of accident, he is an interested witness, as such, unless there is corroborating evidence, his testimony cannot be accepted. It is on record that the police registered a case in respect of this accident and ultimately filed charge sheet against the driver of the lorry. The driver of the lorry appeared before the Criminal Court and pleaded guilty for the accusation made against him and based on the plea of guilt made by the driver, he was convicted by the Criminal Court. Thus, the driver has admitted that his negligence was responsible for the accident. There is absolutely no cogent and acceptable evidence to establish that the driver of the lorry was not negligent. No explanation is forthcoming from the driver of the lorry as to under what circumstances, he pleaded guilty before the Criminal Court. The oral evidence of the claimant that the accident due to the negligence of the lorry driver gets corroboration from the admission made by the driver of the lorry before the Criminal Court wherein he has pleaded guilty for the accusation made against him. In this view of the matter, the Tribunal is justified in holding that the accident is solely due to the negligence of the driver of the lorry. There is no ground to interfere with the said finding recorded by Tribunal.
From the evidence on record, it is clear that in the accident, the claimant sustained fracture of left fibula, amputation of third toe on the right foot apart from other injuries. He was treated as inpatient for 50 days in K.R. Hospital, during which period he underwent surgery. The evidence of the Doctor further establishes that the claimant has suffered permanent disability to an extent of 25% of the right lower limb and 12% of whole body. However, the claimant himself has admitted that even after the accident, he continued to work in the same company and he is getting his salary, and there is no reduction in salary even after the accident. Therefore, the disability, if any, suffered by the claimant, has not come in the way of his future earning capacity. Under these circumstances, the Tribunal is justified in not awarding any compensation towards future loss of earning. However, the Tribunal appears to have not awarded compensation payable under other permissible heads. Having regard to the fact that the claimant was treated as inpatient for 50 days and had suffered auto-amputation of the third toe of the right leg and had undergone surgery for correction of fracture of left fibula, which has resulted in disability to an extent of 25% as spoken to by the Doctor, the Tribunal ought to have held that the claimant has suffered loss of amenities and under the said head, the Tribunal ought to have awarded commensurate compensation. Loss of one toe and the restrictions in the movement in the other toes of the right leg would certainly come in the way of enjoyment of life by the claimant.
Taking into consideration these facts, this Court is of the opinion that the claimant is entitled for compensation of Rs. 25,000/- towards loss of amenities. Having regard to the fact that the claimant was treated as inpatient for 50 days, it is reasonable to infer that he has spent substantial amount towards conveyance, attendant charges and nourishing food, in spite of the same, the Tribunal has rot awarded any compensation under this head. In the circumstances of the case, I am of the opinion that it is just and reasonable to award Rs. 12,000/- towards conveyance, attendant charges and nourishing food.
The Tribunal has awarded compensation towards loss of earning only for a period of 50 days during which period the claimant was inpatient in the hospital. Having regard to the nature of the fracture sustained by the claimant, it is reasonable to infer that even after the discharge from the hospital, he must have been immobilized for some period and he must have been advised to take rest. Therefore, atleast for a total period of three months, the claimant was not in a position to attend to his regular work. Under these circumstances, the claimant is entitled for loss of earning for a period of four months. The Tribunal having regard to the evidence on record, has assessed the monthly income of the claimant at Rs. 3,645/-. On that basis, the claimant is entitled for Rs. 14,580/- being the loss of earning for a period of four months. Thus, the claimant is entitled for enhanced compensation of Rs. 45,505/- which is rounded of to Rs. 46,000/- over and above the compensation awarded by the Tribunal.
The Tribunal having regard to the evidence on record has rightly come to the conclusion that as on the date of accident, there was no policy issued by the Insurance Company in respect of the lorry in question as, the policy issued was for the period from 14.08.1995 to 13.08.1996. The owner of the lorry has not disputed this fact. Therefore, the Insurance Company has been rightly exonerated from the liability. In spite of the same, both the owner and the claimant have impleaded the Insurance Company as party to their respective appeals. Having regard to the facts and circumstances of the case, there are no grounds to modify the judgment of the Tribunal dismissing the claim petition against the Insurance Company and directing the owner of the lorry-alone to satisfy the entire award.
Accordingly, the appeal filed by the owner in MFA No. 11149/2005 is dismissed with costs. The appeal in MFA No. 653/2005 is allowed in part awarding additional compensation of Rs. 46,000/- over and above the compensation awarded by the Tribunal, to the claimant. The enhanced compensation shall carry interest at 6% pa., from the date of petition till the date of deposit. The owner of the lorry is directed to deposit the enhanced compensation with interest within four weeks.
The statutory deposit of Rs. 25,000/- made by the appellant in MFA No. 11149/2005 is ordered to be transmitted to the Tribunal concerned for disbursement.
Sri A.M. Venkatesh, learned Advocate, is permitted to file vakalath in both these appeals on behalf of the Insurance Company, within four weeks.