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Judgment
S.N. Satyanarayana
These two appeals are filed impugning the judgment dated 23.7.2008 passed, in MVC.No.585/2006. The first of the appeals in MFA.No. 10301/2008 is filed by the 2nd respondent insurer of motor vehicle bearing No.KA-20/Q.4013 challenging the judgment impugned on the ground that the order portion of judgment is contrary to the finding in the judgment and fastening of liability on 2nd respondent /insurance company is contrary to the reasoning given in the judgment. So far as the 2nd appeal in MFA.No.593/2009 is concerned, the same is tiled by claimant seeking enhancement of compensation awarded to him by the tribunal.
Brief facts leading to these two appeals are as under:
It is the case of claimant. Srinivas Acharya who is appellant in the second appeal that on 25.3.2006 he was travelling as pillion rider of motor cycle bearing No. No.KA-20/Q-4013 belonging to 1st respondent before the tribunal and insured with 2nd respondent/insurance company. It is his case that when the motor cycle on which he was travelling was proceedings near Udyavar Bridge a car bearing No.KA-20/M-3941 came from the opposite direction and hit the motor cycle on which he was travelling which resulted in the claimant suffering fracture of both bones of right leg, Avuision of Posterio Cruciate Ligament. Multiple deep abrasion right leg and other injuries over parts of his body. t s also his case that Immediately after the accident he got himself admitted in Mi-Tech Medicare Hospital, Ambalpady, Udupi, wherein he was inpatient for 21 days during which period the fracture suffered by him was set right by surgical intervention by putting steel plate and screws. It is the further case of claimant, that subsequently he filed claim petition seeking compensation for the injuries suffered in the aforesaid accident.
In the said proceedings he arrayed the owner and insured of both motor cycle in which he was traveling as also the car which came from opposite direction and caused accident. In the said proceedings, the claimant adduced evidence as PW. 1 and in support of his injuries and the treatment that he has taken, he examined a Doctor by name Umesh Prabhu as PW.2 and produced and marked in all 7 documents as Exs.P1 to P7 and also marked Exs.C1 to C3. In the said proceedings on behalf of respondents no evidence was adduced. However, four documents were produced and marked as Exs.R1 to R4. The tribunal on appreciation of the pleadings, oral and documentary evidence available on record proceeded to partially allow the claim petition and awarded compensation to claimant in a sum of Rs.79.480/-payable with interest at 8% pa., from the date of petition till date of deposit of entire amount.
Heard the counsel for appellant in both the appeals. On going through the judgment impugned it is seen that claimant who was working as Carpenter has adduced evidence stating that he was earning a aura of Rs.6,000/-pm. which according to him is not taken into consideration for the purpose of awarding compensation to him under the head loss of future earning capacity. It is also the case of claimant that as per the evidence of PW.2 claimant, has suffered limb disability to The tune of 24.6% as per the disability certificate, which is at Ex.C3, which is not properly appreciated by the tribunal. It is also his case that tribunal while assessing the compensation has not taken into consideration the actual expenses incurred towards the attendant charges conveyance, food and nourishment, for which only a paltry sum of Rs.3,000/- is awarded when the hospitalization itself is for more than 21 days, It is also his case that if the opinion of Doctor as per Ex.C3 is taken into consideration the tribunal ought to have calculated the loss of future earning capacity by taking 32% as whole body disability and also taking his income at Rs.6,000/- which is not considered by the tribunal.
Per contra, the appellant/United India Insurance Co.. Ltd.. contends that in the judgment impugned at paragraph 9 while discussing involvement of both vehicles and liability concerned, the tribunal has rightly assessed the available evidence on record to come to the conclusion that the accident is caused due to rash and negligent driving of the driver of car It is also substantiated by the fact that the driver of car involved in the accident has pleaded guilty before the Magistrate Court in CC.No.4172/2006, which was filed against him for rash and negligent driving u/s 279 of IPC. Therefore, the entire liability to pay compensation should have been. fastened on him. It is also contended that since the owner of car bearing No.KA-20/M-3941 was not having valid insurance coverage at the time of accident the liability is shifted on the owner and insurer of scooter bearing No.KA-20/Q.4013. Therefore, there is error on the part of tribunal in assessing the evidence available on record, which is required to be set right by shifting the liability to pay compensation on the owner of car/3rd respondent before the tribunal.
On going through the finding of the tribunal at paragraph 9 and 10 it is seen that there is error on the part of tribunal in holding that it is only car which is at wrong in causing the accident. Merely because the owner of car pleaded guilty in a criminal proceedings, it does not mean that the entire mistake is on the part of driver of car in causing the accident. What could be seen from the spot mahazar and the statement recorded at the time of accident that the accident has taken place near a narrow bridge, whenever two vehicles have to pass through the bridge care and caution is required to be exercised by drivers of both vehicles Merely because the driver of car pleads guilty in a criminal case it does not mean that the rider of motor cycle was not at fault. Infact if rider of motor cycle bad taken sufficient precaution while negotiating the bridge he could have avoided the accident. Therefore, the finding of tribunal that it is only car which is at wrong and fastening liability on the insurer of scooter to pay compensation is totally erroneous.
On reappreeiation of the material evidence available on record, it is clearly seen that there is mistake on the part of both rider of scooter and as well as rider of car in causing the accident. Therefore, in the lightness of situation the tribunal ought to have fastened liability on both vehicles in equal proportion, Therefore, the reasoning of tribunal that the car is responsible for accident, and the finding that owner of scooter and insurer has to pay entire compensation is totally incorrect and contrary to each other. On the other hand, tribunal should have held that drivers of both vehicles are at fault and therefore, the owners of both vehicles are equally responsible to compensate the claimant for the injuries suffered by him. In the instant case, it is only the scooter which has insurance coverage i.e.. appellant in MFA.No. 10301 /2008. Therefore, the liability of said insurance company is only to an extent of" 50% and not 100% as held by tribunal. So far as remaining liability of 50% is on the owner of ear,
Now coming to the quantum of compensation, it is seen that the compensation awarded by tribunal under the head pain and suffering, medical expenses, conveyance, food and extra nourishment appears to be just and proper. However, when it comes to awarding compensation towards discomfort and loss of amenities, there is an error committed by the tribunal in clubbing the compensation payable for loss of amenities and lose of income during treatment, which has resulted in awarding compensation only on amenities and not on loss of income during treatment period for which the claimant is entitled to compensation in a sum of Rs.20.000/- at the rate of Rs.4000/- pm. for a period of 5 months. With this marginal enhancement of compensation the appeal filed by claimant is allowed in part and the compensation awarded by tribunal at Rs. 79.460/- is enhanced to Rs.99,460/- and the claimant is entitled to receive enhanced compensation with interest at 6% pa., from the date of" petition till date of deposit at the rate of 50% from the owner of car and at 50% from the insurer of the scooter. Since the 4th respondent before tribunal, namely the Oriental Insurance Company Ltd. had not issued the insurance policy to the car for the period when the accident took place exonerating them from payment of compensation appears to be just and proper and the finding of tribunal on that aspect does not require to be disturbed.
Accordingly, both the appeals are allowed in part.