Basangouda vs N.W.K.R.T.C.

Aravind Kumar, J.—These appeals are by the claimant as well as NWKRTC (for short hereinafter referred to as "corporation") directed against Judgment and award dated 08.09.2009 passed in MVC 1097/2006 and MVC 1098/2006 respectively.

I have heard the arguments of Sri. Hanamant R. Latur, learned counsel appearing for claimants, Sri. Shivakumar Badawadagi, learned counsel appearing for corporation, Sri. G.N. Raichur, learned counsel appearing for insurer. Notice to owner of the vehicle has been dispensed with.

M.F.A. 25133/2010 & M.F.A. 25134/2010 have been filed by the corporation challenging the above said awards on the ground that accident in question occurred on account of negligence of the driver of lorry which had been parked on National Highway without any signal or switching parking lights and as such it is contended that entire negligence is to be attributed to the said lorry which had been parked on the highway and insurer of the lorry has to indemnify the claim. In reply Sri. G.N. Raichur, learned counsel appearing for insurer of lorry would submit that corporation had not placed any material before the Tribunal to establish as how the lorry had been parked on the road and as such no negligence can be attributed to the driver of lorry and even otherwise he contends that investigating authorities have not filed charge sheet against driver of lorry. He would also submit that negligence for the accident in question is attributed to the driver of NWKRTC bus and not driver of the lorry by investigating authorities and as such insured and insurer of the lorry are not liable for the compensation awarded by the tribunal. Hence, he prays for dismissal of the appeals filed by the corporation.

Sri. Hanamanth R. Latur, learned counsel appearing for claimants would contend that the compensation awarded by tribunal in both petitions is abysmally on the lower side and evidence on record has not been considered in proper perspective and as such he seeks for enhancement of compensation.

Per contra, Sri. Shivakumar Badawadagi and Sri. G.N. Raichur, learned counsel appearing for corporation and insurer would submit that compensation awarded by the tribunal itself is on the higher side and it does not call for any enhancement. Hence, they pray for dismissal of the appeals filed by the claimants for enhancement.

Having heard the learned advocates appearing for the parties and on perusal of the Judgment and awards in question following points would arise for my consideration:

Whether Tribunal was correct in arriving at a conclusion that there was no negligence on the part of driver of lorry bearing No. KA-06-9522 for the cause of road traffic accident that occurred on 05.01.2006?

OR

"Whether the driver of the lorry bearing No. KA-06-9522 had contributed his negligence for the accident in question? And, if so, to what extent the contributory negligence is to be apportioned between two vehicles involved in the accident?"

Whether the compensation awarded by the Tribunal is just and reasonable or it requires to be enhanced and if so, to what extent?

On 05.01.2006 bus belonging to Corporation was proceeding on National Highway-4 and when it came near Hiriyur Chitradurga at Yardakatte Cross it dashed against the lorry bearing No. KA-06-9522 which had been parked on Highway at about 4.30 A.M. Driver of the corporation has entered the witness box. He has categorically stated that on the said date lorry had been parked on the highway without switching the parking lights or any sign. He has also stated driver of the lorry had parked the lorry on the middle of the road. Despite such evidence owner of the lorry who had been served with the summons did not examine the driver of the lorry to establish as to the way in which lorry had been parked on the road. It is not in dispute that said lorry was parked on the highway. Evidence of the driver of the bus belonging to corporation has not been rebutted either by the insured or by the insurer. Merely because the charge sheet has been filed against driver of the corporation it cannot be held there was negligence on the part of the driver of the lorry. Evidence of driver of bus cannot be ignored by this court and as such I am of the considered view that tribunal committed a serious error in not considering the fact that the lorry in question had been parked on a national highway that too without switching parking lights or indicators. It is not expected of a driver of a vehicle to park the vehicle on a national highway that too without indicating any signs of such parking. In the facts and circumstances of the case it would indicate that accident in question occurred on the early hours of 05.01.2006 i.e., at about 4.30 A.M. On a National Highway it cannot be expected by any driver that a heavy vehicle would be parked on the middle of road that too without indicating any signals. Driver of the corporation has categorically stated on account of there being no parking lights he could not see lorry which had been parked on the highway. Though he has stated lorry was parked in the middle of the road, there was no positive evidence available in this regard. However, the fact remains that lorry had been parked on a national highway without any signals. After having observed vehicle had been parked driver of the bus has failed to avoid the accident but failed to do so and he has dashed against the parked lorry resulting in inmates of the bus getting injured. In that view of the matter I am of the considered view that there was negligence on the part of the driver of the lorry for having parked the same on a highway without indicating any signal and as such 60% of negligence is to be attributed to driver of the bus and 40% to the driver of the lorry. Accordingly Point no. 1 is answered herein above.

RE: MVC 1098/2006:

Claimant after being injured in the accident in question was shifted to Government Hospital, Hiriyur in a critical condition and later shifted to Vijaya Hospital, Belgaum for higher treatment. He was operated and also treated conservatively for the injured limbs. Exhibit P-6 wound certificate of Government Hospital which indicates claimant had sustained three injuries. He was inpatient from 06.01.2006 to 23.01.2006. PW-3 Doctor who treated the claimant at Vijaya Hospital has been examined and he has stated that on clinical and radiological evaluation of the claimant he found that claimant had sustained fracture of left tibia and ulna and implants were fixed. It is also observed by the Doctor that claimant had sustained head injury namely left parietal contusion and there was swelling in the brain. CT scan report and EEG report indicated that there is evidence of general epileptiform activity with left temporal epileptiform focus. He has also opined that claimant has suffered vertigo impaired memory, suffering from convolutions and frequent epilepsy. He has opined injury is permanent in nature and requires permanent treatment for 15 to 20 years and on that basis he has opined there is disability of 35% to the whole body.

Tribunal has considered the income of the claimant at Rs. 3,000/- per month and awarded compensation towards loss of future income by considering whole body disability at 30% and basis for construing disability at 30% is not forth coming. When the doctor who is an expert has entered the witness box and stated whole body disability is 35% there is no scope for the tribunal to substantiate its view to that of the expert particularly when there is no contrary evidence available on record. In that view of the matter evidence of doctor is to be accepted and compensation payable requires to be recomputed.

Taking into consideration the number of days of hospitalisation i.e., from 06.01.2006 to 23.01.2006, injury sustained, surgery undergone and the nature of treatment that the claimant has undergone and future medical treatment he will have to undergo as opined by doctor additional compensation towards loss of future earning, amenities, loss of income during laid up period, food-nourishment, conveyance as well as future medical expenses deserves to be awarded. Hence, following additional compensation is hereby awarded:

Thus in all claimant is entitled to additional compensation of Rs. 1,22,000/- and same is hereby awarded.

RE: MVC 1097/2006:

Tribunal has taken into consideration the wound certificate Exhibit P-5 which indicates that claimant had sustained six injuries amongst it three were grievous in nature and summary sheet issued by Vijaya Hospital and marked as Exhibit P-23 indicates that claimant had sustained fracture of left Condyle, Coronoid Fracture. Doctor Ravi Patil, PW-3 has been examined by claimant and he has categorically stated that claimant would have difficulty in speech, swallowing, unable to chew solid food and as such he has assessed whole body disability at 14% as per disability certificate Exhibit P-24. Since PW-3 is not a dentist tribunal has not taken into consideration his evidence. However, the fact remains that claimant had sustained injuries to his tongue, mouth, chin jaws as a result of mandible fracture. In that view of the matter the compensation awarded towards loss of amenities requires to be enhanced and claimant would not be entitled for loss of future income inasmuch as claimant is a retired Government servant and receiving pension every month or there is no reduction in his pension. However, compensation awarded towards pain and suffering being marginally on the lower side as also compensation towards food, nourishment same requires to be enhanced marginally. Thus, claimant would be entitled to additional compensation as under:

For reasons aforesaid following order is passed:

ORDER

MFA 20192/2010, MFA 20191/2010, MFA 25133/2010 and MFA 25134/2010 are hereby allowed in part.

Judgment and awards passed by tribunal in MVC 1098/2006 and 1097/2006 dated 08.09.2009 are hereby modified and in substitution what has been awarded by Tribunal an additional sum of Rs. 1,22,000/- and Rs. 30,000/- respectively is hereby awarded and it shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.

Insofar as liability is concerned it is apportioned in the ratio of 60:40 between NWKRTC and jointly on insured and insurer of the lorry. It is further ordered that insofar as 40% liability apportioned as contributory negligence on the part of insured is liable to be indemnified by the insurer (Oriental Insurance Co.,). Compensation awarded shall be deposited by NWKRTC and Oriental Insurance in the ratio of 60:40 with proportionate interest calculated up to date before tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.

No order as to costs.