Lokesh vs K.S.R.T.C. and Others

Ram Mohan Reddy, J.—1. MFA No. 8125/2014 is preferred by the claimant injured in MVC 5647/2012 aggrieved by the finding attributing 10% contributory negligence and determination of compensation said to be on the lower side, by the judgment and award dated 2nd July 2014, of the Motor Accident Claims Tribunal, SCCH No. 17, Bangalore, (for short ''MACT'') while MFA No. 6560/2014 is filed by the Karnataka State Road transport Corporation, calling in question the aforesaid judgment and award insofar as it relates to attributing 90% contributory negligence on the driver of the bus as well as the quantum of compensation.

In the accident that occurred on 14.5.2012, the claimant appellant while riding the motor cycle bearing registration No. KA-04-E-5350 at Kunur village Gate took a turn in to Kanakapura Main Road, it was alleged the driver of the bus bearing certificate of registration KA-40-F-163 belonging to respondent at a high speed and in a rash and negligent manner, dashed against the motor cycle, as a result of which, the appellant/claimant as well as the pillion rider fell down and suffered grievous injuries.

The claim petition invoking Section 166 of the Motor Vehicles Act, 1988 was resisted by filing statement of objections of the respondent-Karnataka State Road Transport Corporation (for short ''KSRTC'') denying the accident and other material particulars as well as the allegations and contended that it was the claimant who in a negligent manner while riding the motor cycle even after seeing the bus on the main road entered the main road from the cross road and dashed against the left side bumper of the bus and sustained injuries.

The MACT framed the following issues:

"1. "Whether the petitioner proves that on 14.05.2012 at about 9.30 a.m. he was proceeding on a hero Honda passion motor cycle bearing Reg No. KA-04-ES-5350 near Kunur village gate, Hulibele Village, Kanakapura Taluk. At that time the driver of the KSRTC Bus Reg. No. KA-40-F-163 came from the right side with high speed in a rash and negligent manner and dashed against the petitioner motor cycle. As a result of which he sustained injuries as alleged?.

Whether the petitioner is entitled for compensation? If so, at what rate and from whom?.

What order or decree?."

The claimant was examined as P.W. 1 and marked Exs. P1 to P17 and examined Dr. B.S. Venkatesh, as P.W. 2 and marked Exs. P18 to 22 while for the respondent-KSRTC, the driver was examined as R.W. 1 and no documents were marked.

The MACT having regard to the material on record and the evidence, both oral and documentary, returned a finding in the affirmative over issue No. 1, partly in the affirmative over issue No. 2 and determined compensation of Rs. 1,68,368/- with interest at 6% p.a., by judgment and award while fastening 10% contributory negligence on the claimant.

Learned counsel for the claimant submits that the MACT was not justified in attributing 10% contributory negligence on the rider of the motor cycle. Per contra, learned counsel for the respondent-KSRTC submits that Kanakapura Road is a main road and any motor vehicle which intends to come from the side/cross road on to the main road, ought to first give way to vehicles moving on the main road on the right side of the vehicle on the cross road, and show circumspection/caution before entering the main road and having not done so, the claimant was entirely responsible for the accident.

As regards the quantum of compensation, learned counsel for the claimant submits that the MACT was not justified in not awarding compensation towards conveyance, attendant, food and nourishment and loss of amenities of life. In addition, it is submitted that reckoning Rs. 5,000/- per month is on the lower side while the percentage of disability reckoned by the MACT as 14% to the particular limb and 10% to the whole body is on the lower side and contrary to the testimony of Doctor/P.W. 2.

Per contra, learned counsel for the KSRTC submits that the compensation awarded is excessive and since there was no evidence whatsoever to establish future loss of earning, the MACT fell in error in determining compensation under the said head. The claim for conveyance, food and nourishment, attendant charges, loss of amenities of life are unavailable to the claimant since the claimant was not an inpatient in the hospital for being treated for the injuries sustained.

According to the learned counsel, the medical record discloses that the claimant was treated as out patient on only one date, that is the date of the accident, in a Government Hospital. Learned counsel hastens to add when the testimony of P.W. 2 the doctor who had not treated the appellant for the injuries, is not credible evidence over disability allegedly suffered by the appellant/claimant, he is not entitled to compensation.

Having heard the learned counsel for the parties, perused pleadings, examined the judgment and award impugned and the material on record, the following two questions arise for decision making:

"i) Whether in the facts circumstances and evidence on record, the MACT was justified in attributing 90% contributory negligence on the driver of the bus belonging to KSRTC and 10% contributory negligence on the rider of the motor cycle?

ii) whether in the facts circumstances and evidence on record the award of compensation by the MACT, is just and proper?"

The MACT, in a very cryptic and cavalier manner answered issue No. 1 in the affirmative holding the driver of KSRTC bus responsible for the accident, while answering another issue over liability, recorded a finding that the claimant attributed 10% to the accident and therefore, he is disentitled to 10% of the compensation.

The two findings are contradictory to each other. In one breadth the MACT says that the responsibility is over the KSRTC driver who caused the accident and in another breadth, that the rider of motor cycle contributed 10% of negligence.

Be that as it may. These appeals, by both the claimant and respondent-KSRTC, call in question the findings on issue over negligence. It is useful to notice that neither of the parties placed before the court, a very relevant piece of evidence that is the spot sketch/mahazar fixing the exact place of impact of the vehicles on the road known as Kanakapura Road. What can be gathered from the testimony of P.W. 1 the rider of the motor cycle and RW. 1 the driver of KSRTC bus is, that the bus was proceeding on Kanakapura Main Road while the claimant was riding the motor cycle on an arterial road and at the junction, the rider of the motor cycle having entered the Kanakapura Main Road the accident occurred. In other words, the rider of the motor cycle proceeded on to the main road on his right side, despite noticing the fact that the bus belonging to KSRTC was also coming on the main road. It is needless to state that if a vehicle is coming on the right side of the rider of the motor cycle, then, it was the rider of the motor cycle who ought to have shown caution and circumspection before entering the main road by giving way to the bus, hence was negligent.

It is futile effort to advance a contention that the KSRTC bus had to stop at every junction of the main road and arterial road and there afterwards proceed so as to provide free passage for vehicles coming from arterial road on to the main road. Regulation 9 of the Rules of Road Regulations, 1989, promulgated in exercise of power conferred under Section 18 of the Motor Vehicles Act, 1988, reads thus:

"9.- Giving way to traffic at road junction: The driver of a motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand."

The aforesaid regulation provides that it is the rider of the motor cycle to give way to the KSRTC Bus traveling on the right side on the main road and having not done, took the motor cycle on to the main road at the junction contrary to the regulation, which cannot but be held to be negligence on the rider of the motor cycle.

In that view of the matter, the finding of the MACT on issue No. 1 attributing actionable negligence to the driver of the bus belonging to KSRTC, deserves to be set-aside. The issue is answered in the negative by observing that both the rider of the motor cycle as well as the driver of the bus are equally responsible for the accident.

The contribution for the accident, due to rash and negligent riding of the motor cycle and that of the bus, is 50-50, the question formulated supra is answered accordingly.

The appellant/claimant suffered following three injuries:

"i) Cut lacerated wound to the right leg 1/3rd region of right foot;

ii) Injury to left shoulder clavicle region; and iii) Injury to teeth i.e. right side teeth were loosened."

The aforesaid three injuries, are said to be grievous in nature as disclosed in the wound certificate Ex. P6. Claimant is said to be 20 years of age, as on 14.5.2012, the date of accident and injury and an agriculturist earning Rs. 20,000/- per month. Although, in the testimony of P.W. 1, it is asserted that the claimant was carrying on business of supplying milk to Koonuru Milk Co-operative Society, there is no evidence worthwhile to establish the fact that appellant/claimant was a business man vending milk or that even if he was an agriculturist, in the least, earned Rs. 20,000/- per month. In the absence of relevant material constituting substantial legal evidence of the said facts, the MACT did some guess work and reckoned Rs. 5,000/- as monthly income of the injured. In Lok Adalath it is recognized that an able bodied young man, during the year 2012, would earn atleast Rs. 7,000/- per month and therefore, reckoning Rs. 5,000/- per month by the MACT is not just and proper.

The award of Rs. 40,000/- towards pain and suffering, having regard to the nature of injuries, cannot be said to be excessive or exorbitant calling for interference.

The claimant/appellant furnished medical bills of Rs. 10,368/-, Ex. P8 and Ex. P16. Therefore, the MACT awarded the said sum which does not call for interference. The medical record i.e. wound certificate, OPD of Sanjay Gandhi Hospital, Exs. P6 and P7, do not disclose that the appellant/claimant was an inpatient, but was treated as out patient on the date of accident and injury, hence is disentitled to attendant charges and conveyance charges, in the absence of material evidence.

There is no evidence worthwhile to establish that the appellant suffered 10% whole body disability due to injuries. The testimony of P.W. 2 Doctor admittedly who had not treated the appellant for the injuries deserves to be considered with circumspection. His testimony opining assessment of disability at 8% to the right foot and the whole body at 3% and dental injuries at 2% to the whole body while 14% to upper limb, is not in compliance with the guidelines of the Central Government in its notification for determining the quantum of compensation. Except the self-serving statement of P.W. 1, in the absence of relevant material constituting substantial legal evidence of the said fact of disability, the MACT reckoned 10% as whole body disability.

There is not a title of evidence to establish the fact that the appellant/claimant''s monthly income was diminished due to disability suffered. In that view of the matter, the MACT reckoning 10% as disability to the whole body awarded Rs. 1,08,000/- towards loss of future income.

There was no material worthwhile before the MACT over the loss of income during laid up period. Even according to learned counsel for the appellant/claimant, he had engaged services of some person to whom certain amounts were paid for carrying on business of vending milk. In the absence of evidence to substantiate as to how much money was paid to the person to carry on business, question of loss of earning during laid up period did not arise.

In my considered opinion, the award of Rs. 1,08,000/- towards loss of future income, if considered as loss of amenities of life, in the facts and circumstances, is just and reasonable.

In the result, the appeal filed by claimant-injured, is dismissed, while the appeal filed by KSRTC is allowed in part. The judgment and award impugned is modified by setting aside the finding on actionable negligence and attributing 50% negligence on the rider of the motor cycle as well as the driver of the bus and in all other respects remains unaltered.

The amount in deposit is directed to be forthwith forwarded to the MACT concerned.