H. Srinivas vs Bharathi Shetty and Others

B. Sreenivas Gowda, J.—This appeal is by the claimant challenging the judgment and award passed by the Tribunal on the ground of negligence and quantum.

Heard. The appeal is admitted and with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 24.2.2010 by involvement of a Motor bike bearing registration No. KA 11 K 2323 and a car bearing registration No. KA 03 MF 761 and negligence of the driver of the car to the extent of 50%, points that arise for my consideration in the appeal are:

"1) Whether the finding of the Tribunal on negligence holding that the accident has occurred due to contributory negligence of 50% on the part of the claimant in riding his motor cycle and 50% on the part of the driver of the car in driving his car is sustainable in law?

2) Whether quantum of compensation awarded is just and reasonable, or does it call for interference?"

Point No. 1:

Sri. Nataraju P, learned counsel appearing for the claimant submits that although the claimant was riding his motor bike slowly and carefully by observing traffic rules and regulations, the accident has taken place due to rash and negligent driving of the car by its driver. The Tribunal without considering the oral evidence of PW1 and the mahazar and sketch produced and marked at Ex. P8 and P.9 has committed an error in holding that the accident has occurred due to contributory negligence of 50% on the part of the claimant in riding the motor bike and 50% on the part of the driver of the car. He further submits that the quantum of compensation awarded is on the lower side and therefore he prays for allowing the appeal both on the ground of negligence and quantum.

Whereas Sri. O Mahesh, learned counsel appearing for the insurer of the car submits that there is no illegality or infirmity in the finding of the Tribunal on negligence warranting interference of this court. Therefore, he prays for confirming the said finding on negligence.

Regarding quantum, he submits that Dr. Suresh, who has treated the claimant and issued disability certificate to the effect that the claimant has suffered 35% disability to particular limb, is not correct. The discharge summary issued by him at Ex. P. 2 does not bear his signature. Therefore, the Tribunal is justified in not awarding compensation towards loss of future income. Therefore, he prays for dismissal of the appeal.

The claimant in support of his contention that the accident has occurred due to rash and negligent driving of Maruthi Swift car, examined himself as PW1 and produced the police records viz., IMV report, charge sheet, spot mahazar, spot sketch and FIR at Ex. P.5,P.6,P.8,P.9 and Ex. P.13 respectively.

It is to be noted that he has not examined any independent witnesses to the accident. There is no dispute that he was 17 years old at the time of the accident and could not have obtained licence to drive a motor bike with gear. A perusal of the sketch produced at Ex. P.9 would show that he started his journey on his two wheeler from South to North. Well before the accident he has changed his direction and proceeded from East to West. Similarly the driver of Maruthi Swift car has started his journey from North to South. After traveling for some distance, he has changed his direction and proceeded from East to West. At the time of the accident, both the claimant and driver of the car were proceeding almost in the same direction i.e., from East to West and dashed against each other and accident has taken place at the center of service road before entering the main road ahead. The trial court considering this material aspect of the matter and other oral and documentary evidence on record has come to the right conclusion that the accident has taken place due to contributory negligence of 50% on the part of the driver of the car and 50% on the part of the claimant in riding his motor bike. I have carefully gone through the said finding of the Tribunal and do not see any illegality warranting my interference. Hence, finding of the Tribunal on negligence is confirmed and Point No. 1 is answered accordingly.

Point No. 2:

Although, the claimant in his claim petition as well as in the course of argument contends that immediately after the accident he was taken to B.M. hospital, situated at Mysore-Hunsur Road and after getting first aid he went home and from there he went to City Bone and joint Centre situated on Mysore -Hunsur road and from there he was shifted to Kamakshi Hospital, but no document with regard to first aid taken in B.M. Hospital is produced. The learned counsel appearing for the insurer by referring to the discharge summary produced at Ex. P.2 and the evidence of PW3-Dr. Suresh, Orthopedic surgeon, City Bone and Joint Centre, denies the fracture of L3 stated to have been sustained by the claimant.

He further submits that wound certificate-Ex. P. 7 does not bear the date of its issuance. It is to be noted that Kamakshi Hospital, situated at Kuvempu nagar, Mysuru is one of the reputed hospitals in Mysore. Though, the date is not found at the top of Ex. P.7, but at the bottom immediately after the signature of the concerned doctor who has issued it, he puts the date as 22.4.2010. Therefore, the genuineness of the contents of Ex. P. 7 wound certificate issued by Kamakshi hospital cannot be doubted. As per Ex. P.7 wound certificate, the claimant has sustained following injuries:

''Pain and swelling at right pelvic region and compression fracture of L.3 vertebra.''

Even ignoring Ex. P.2 - discharge summary issued by City Bone and Joint Centre on the ground that P.W.3 - Dr. Suresh has stated in his evidence that he has no records regarding treatment given to claimant, there is no impediment to hold, claimant has sustained fracture of L.3, based on discharge summary issued by Kamakshi hospital, Mysuru.

Considering fracture of L.3 sustained by the claimant, a sum of Rs. 40,000/- is awarded towards ''pain and suffering'' as against Rs. 20,000/- awarded by the Tribunal.

Learned Counsel appearing for the claimant after going through the medical bills available in the records of the Tribunal submits, though claimant has stated, he has spent a sum of Rs. 99,000/- towards medical expenses but medical bills produced by the claimant comes to Rs. 71,000/- and the same is not disputed by the learned Counsel appearing for the insurer. Therefore, a sum of Rs. 71,000/- is awarded towards medical expenses.

He was treated as inpatient for 11 days at Kamakshi Hospital, Kuvempu nagar, Mysuru, during which period he was operated for fracture of L.3. Considering the same, a sum of Rs. 10,000/- is awarded towards incidental expenses such as nourishment, conveyance and attendant charges.

Claimant has stated he has studied in ITI and working in a finance company, but has not stated how much salary he was getting by working so in the said finance company. Therefore in the absence of proof of income, considering his age as 19 years, year of accident as 2010 and avocation as an employee in a finance company, his income could be easily assessed at Rs. 6,000/- per month. Nature of injuries suggest that he might have taken rest and treatment for a period of three months. Therefore a sum of Rs. 18,000/- is awarded towards loss of income during laid up period.

Claimant in support of his contention that he has done ITI in Fitter and on account of sustaining fracture of L.3, he could not join for a job suitable to his qualification cannot be accepted for the simple reason that, at the time of accident, he was still a student of ITI and secondly doctor has not stated that on account of fracture of L.3 sustained by him, he cannot join job suitable to his qualification and it is also not his case that after sustaining injury he discontinued his employment in Bairaveshwara Finance Co.

With regard to disability, learned Counsel for the insurer submits, disability certificate issued by Suresh, cannot be relied upon as he has not treated the claimant. Per-contra, Sri. Nataraju, learned Counsel appearing for the claimant submits, it is P.W.3 - Dr. Suresh who has operated the claimant at Kamakshi Hospital. Medical records of Kamakshi Hospital, pertaining to claimant would show, claimant was operated for fracture of L.3 by Dr. Suresh. Therefore, there is no impediment to accept the disability stated by P.W.3 - Dr. Suresh at 18% and claimant has to bear with the said disability and certain amount of discomfort and unhappiness for the rest of his life. Therefore, justice would be met if a sum of Rs. 60,000/-is awarded towards loss of amenities and disability as against Rs. 15,000/- awarded by the Tribunal under this head.

Thus, claimant is entitled for the following compensation:--

From Rs. 1,99,000/- which 50% has to be deducted towards negligence contributed by the claimant in riding his motor cycle. After deducting the said 50%, he is entitled to a compensation of Rs. 99,500/- as against Rs. 52,500/- awarded by the Tribunal with interest at 6% p.a. on the additional compensation of Rs. 47,000/- from the date of claim petition till the date of realisation.

Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated herein above.

The Insurance Company is directed to deposit the additional compensation with interest at 6% p.a. from the date of claim petition till the date of realization, within two months from the date of receipt of a copy of this order, from which, 50% with proportionate interest is ordered to be invested in the name of the claimant in any nationalized/scheduled/Grameena Bank for a period of 3 years, with a right of option to him to withdraw interest periodically and the remaining amount is ordered to be released in his favour. The Tribunal while releasing the remaining amount is also ordered to issue FD slip to the claimant to enable him to withdraw the amount on its maturity.

No order as to costs.