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Judgment
Ram Mohan Reddy, J.—1. The claimant/injured dissatisfied with the quantum of compensation and the finding attributing 25% contributory negligence by judgment and award dated 14.11.2014 in MVC No. 397/2013 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Mangalore (for short, MACT) has presented this appeal.
In the accident that occurred on 10.11.2010 at about 8.30 p.m., on Puttur-Mangalore road when the appellant was driving the motor car belonging to him, the bus belonging to the Respondent/KSRTC. Proceeding in the same direction, allegedly while overtaking the motor car dashed against the right side driver seat of the car. The accident occasioned damages not only to the car but also injuries to the appellant. Grounded on the said allegation, petitioner invoking Section 166 of the Motor Vehicles Act, 1988 presented the petition for compensation of Rs. 10 Lakhs.
Before the MACT, appellant was examined as PW-1 and the Medical Record In-charge as PW-2 while the doctors who treated the appellant as PWs - 3 and 4 and marked 18 documents were marked as Exs.P1 to P18 while for the respondents, the Conductor of the Bus was examined as RW-1 and the authorization letter marked as Ex. R1.
The MACT, having regard to the material on record and the evidence both oral and documentary, returned a finding that the appellant contributed 25% negligence to the accident and 75% to the driver of the bus to award Rs. 1,15,000/- with interest at 6% p.a. as compensation by the judgment and award impugned.
There is force in the submission of the learned counsel for the appellant that the MACT was not justified in attributing 25% contributory negligence to the Appellant the driver of the motor car. It is not in dispute that both the vehicles, i.e., car and the bus were proceeding in the same direction while the damage to the car is on the right hand side of the driver while the damage to the bus is on the rear left side. Therefore, while the car is moving on its correct side, i.e., the left side of the road, the bus while overtaking the car from the right side, the impact took place, and if that is so, then, the cause of the accident cannot but be at the instance of the driver of the bus.
The driver of the Car was required to pass on the road on his left side while allowing traffic to pass on his right side. If the driver of the bus did want to overtake the motor car passing on the left side of the road, then, showing a signal should have carefully overtaken the car. Moreso, when the road had a divider as a median. The very fact that the left side hind portion of the bus is damaged, means that the bus was overtaking the motor car, also proceeding in the same direction. The evidence of RW-1, the conductor of the Bus, is not credible evidence so as to believe his version since the testimony of the best witness i.e., the driver of the Bus is withheld. In the absence of evidence of the driver of the Bus, it is needless to state that credible evidence was with-held by the KSRTC, for reasons unknown.
In that view of the matter, the finding attributed 25% of contributory negligence to the appellant the driver of the motor car is illegal, calling for interference.
The MACT awarded the following compensation with interest at 6% p.a.:
The injuries suffered by the appellant in the accident is said to be (i) posterior bulging of L4-L5 and (ii) L5-S1 discs, as set out in the Wound Certificate, Ex. P3. The appellant is an Orthopedic Doctor was extended treatment as an inpatient for five days and had to apply leave for 26 days and lost his income during the said period, although, he was in the services of the State at that point of time, as a Doctor.
PW-2 testified to the medical records relating to injuries and treatment, while PWs-3 and 4 are the doctors who treated the appellant for the injuries opining that the appellant suffered 15% disability to the whole body.
Appellant resigned from Government services and took up private employment as a Doctor having specialized in Orthopedics. According to the appellant, due to the disability, is unable to stand for a long time. A medical practitioner in Orthopedics not being a Surgeon need not have to stand for a long time in discharge of his professional duties. It is not the case of the appellant that he has lost his income due to disability. However, the appellant having established that the injury caused in the accident has lead to discomfort in life is entitled to compensation for loss of amenities and disability. The MACT awarded Rs. 10,000/- towards disability and Rs. 10,000/- towards loss of amenities, put together is Rs. 20,000/-.
In my considered opinion, addition of Rs. 30,000/- towards loss of amenities and disability, in the facts and circumstances is just compensation. The compensation under the other heads do not call for interference.
In the result, appeal is allowed in part.
The judgment and award impugned in so far as it attributing 25% contributory negligence on the appellant is set aside and negligence is attributed to the driver of the bus, Rs. 30,000/- is awarded towards loss of amenities/disability in addition to what is awarded by the MACT and in all other respects, remains un-altered.
The appellant is also entitled to interest on the additional amount of Rs. 30,000/-.
Ordered accordingly.