Madhusudana vs Basavaraj T. Chitharagi

Ravi V. Malimath, J.—The case of the claimant is that on 26.9.2010, when he was going on his two wheeler bearing registration No. KA-45-K-5167 at Bilikere, Hunsur at about 2.00 p.m., a KSRTC bus bearing registration No. KA-09-F-3464 came in a rash and negligent manner and dashed against him. He fell down and sustained severe head injuries, fracture of bone femur and other injuries to all over his body. He was immediately shifted to BGS Apollo Hospital, Mysore, where he was inpatient from 26.9.2010 and 19.11.2010. Huge amount has been spent towards medical expenses.

The claimant was aged 19 years as on the date of accident. He was working as Fitter in Perfect Engineering Works. On the claim petition being filed under Section- 166 of Motor Vehicles Act seeking compensation, the Tribunal awarded compensation in all in a sum of Rs. 6,70,700/- and held that the claimant was negligent to an extent of 50% in causing the accident and hence, awarded a sum of Rs. 3,35,350/- along with interest @ 6% p.a. from the date of the petition till the date of realization. Seeking enhancement and questioning the negligence, the claimant has filed the present appeal.

The case of the claimant is that when he reached Vaddarahalli Circle on Halebeedu-Komegowdanna Koppalu Road, the KSRTC bus came in a negligent manner and dashed against him. One Chandrakumar is the complainant, who lodged the complaint stating that the claimant was going ahead of him in his motorcycle and he was going behind his motorcycle, at that time, KSRTC bus came in a high speed with helter-skelter manner from the side of Kommegondana Koppalu towards Halebeedu Village and hit the motorcycle. Exs. P-3 and P-4 is the spot mahazar. The width of the road is 12 feet. The accident occurred on the centre of the road. Charge sheet was filed against the driver of the KSRTC bus. The Tribunal has further held that in view of absence of a driving licence of the claimant, 50% negligence is attributed on the claimant.

On considering the material evidence on record, we are of the view that there is no material to show that just because the claimant did not possess a driving licence, it cannot be said that he was negligent in causing the accident. So far as negligence is concerned, charge sheet is filed against the driver of the bus holding that he was negligent in causing the accident. Therefore, the finding of the Tribunal in attributing 50% negligence on the claimant is inappropriate. We are of the considered view that the claimant has only partially contributed to the accident and therefore, it is just and proper to hold that the claimant is negligent to an extent of 25% in causing the accident. Therefore, the order of the Tribunal in so far as negligence is concerned, is modified to that extent.

So far as the injuries are concerned, PW-2, doctor has stated that the claimant has slurring of speech with moderate memory of loss, weakness of upper and lower limbs and post traumatic behavior disorder requiring medication for the same. Therefore, the doctor assessed that there is permanent disability at 50% to the whole body. However, on considering the nature of injuries and the evidence of the witnesses before the Court, the permanent disability assessed by the doctor appears to be on the higher\\side. Therefore, based on the injuries sustained by the claimant, it is appropriate to hold that there is permanent disability of 25% to whole body.

The claimant was working as a Fitter in Perfect Engineering Works and drawing a monthly income of Rs. 9,000/- and salary certificate in terms of Ex. P-8 would justify the same. However, the author of the said document has not been examined. The accident occurred on 26.9.2010. We are of the considered view that it is appropriate to assess his notional income at Rs. 6,000/- per month. The multiplier of "18" has to be applied based on his age. Hence, the loss of earning due to disability works out to Rs. 6,000 x 12 x 18 x 25% = Rs. 3,24,000/-. The said amount shall substitute the amount awarded by the Tribunal under the head loss of earnings due to disability''.

The compensation of Rs. 60,000/- awarded by the Tribunal towards ''pain and agony'', Rs. 5,24,800/- awarded towards ''medical expenses'' and Rs. 17,500/- awarded towards ''motorcycle damages'' remains undisturbed.

The claimant after the accident would be disabled for a period of 6 months and hence, Rs. 9,000/- awarded by the Tribunal towards loss of earnings'' is enhanced to Rs. 36,000/- (Rs. 6,000 x 6 months).

Further, Rs. 9,400/- awarded by the Tribunal towards ''attendant charges and special diet'' is enhanced to Rs. 15,000/-.

Thus, the claimant is now entitled to the following compensation:-

Accordingly, the appeal is allowed in part. After deducting 25% negligence attributed on the claimant, claimant is entitled to total compensation of Rs. 7,32,975/- as against Rs. 3,35,350/- awarded by the Tribunal. The enhanced amount shall carry interest @ 9% per annum from the date of the petition till the date of the realisation and shall be paid within a period of 8 weeks from the date of receipt of a copy of this order.