AI Structured Summary
Not yet generated for this judgment
Judgment
R.S. Chauhan, J.—1. Mr. Sunder, the appellant, has challenged the legality of the award dated 6.7.2009 passed by the MACT, Bangalore City, in MVC. No. 4230/07, whereby the learned Tribunal has granted a compensation of merely Rs. 1,78,330/- along with 6% interest per annum from the date of petition till the date of realization.
Briefly the facts of the case are that on 14.12.2006 around 12.00 P.M. the appellant was proceeding as a pillion rider on a motor cycle bearing Regn. No. KA-03-EW-6978 while his friend Prashanth Kumar was driving the motor cycle rashly and negligently. Therefore, it met with an accident at I Cross, Kacharkanahalli. Consequently, the appellant sustained grievous injuries on his arms and his head. Therefore, he filed a claim petition before the learned Tribunal. In order to establish his case, he examined himself as P.W.1 and Dr. Raja Reddy as P.W.2 and also submitted fifteen documents. On the other hand, the Insurance company examined two witnesses, and submitted three documents. After going through the oral and documentary evidence, the learned Tribunal held that the appellant contributed negligence to an extent of 15% and granted the compensation as mentioned hereinabove. Hence, this appeal for enhancement.
The learned counsel for the appellant has raised the following contentions before this Court:--
"Firstly, that according to the testimony of Dr. Raja Reddy-P.W.2 and according to the disability certificate, the appellant had suffered a disability of 40% for the whole body, yet the learned Tribunal has taken his disability as merely 15%. According to the learned counsel surprisingly the learned Tribunal has referred to the demur of the appellant, as the witness, and has clearly observed that "the appellant was slow in understanding the questions and in answering the same and that he also had slurring problem in his speech". It has also noticed the fact that "he was on the borderline of mental retardation" and yet, it has taken the appellant''s disability only as 15%. According to the learned counsel since the appellant has been reduced to the level of borderline mentally challenged person his disability should be taken as 100%. Thus, there is total loss of earning capacity."
Secondly, according to the learned Tribunal, the appellant was intoxicated at the time of the accident. However, as the appellant was merely a pillion rider, his intoxication did not contribute to the occurrence of the accident. In fact, the accident had occurred only because of the rash and negligent driving of appellant''s friend, Prashanth Kumar. Thus, the owner of the offending vehicle and the Insurance Company should have been held 100% liable for payment of the compensation. For the question of contributory negligence on the part of the appellant does not arise in the present case. Therefore, the learned Tribunal was not justified in concluding that the appellant had contributed 15% towards the negligence. Lastly, that on one hand the learned Tribunal has concluded that due to the injuries suffered by the appellant, he was laid off from his work for 6 to 8 months, yet on the other hand, while awarding him compensation for the loss of income during the period of treatment it has taken the loss of income only for four months. According to the learned counsel, the learned Tribunal should have taken it as atleast six months. Therefore, the impugned award deserves to be interfered with.
On the other hand, Mr. O. Mahesh, learned counsel for the Insurance Company as raised the following contentions:--
"Firstly the appellant had examined Dr. Raja Reddy as P.W.2. Dr. Raja Reddy, was merely a general surgeon. He was neither an Orthopedic surgeon, nor a neuro-surgeon. According to him, the appellant had suffered disability of merely 40% to the whole body. The doctor has not given any evidence with regard to the mental disability of the appellant. Hence, the learned Tribunal was justified in taking the disability at 15%. Secondly, since the appellant was inebriated, he nearly fell down from the moving vehicle. Due to his imbalance, he contributed to the alleged accident. Thus, the learned Tribunal was justified in attributing 15% of contributory negligence to the appellant. Hence, the learned counsel has supported the impugned award."
Heard the learned counsel for the parties and perused the impugned award.
A bare perusal of the impugned award clearly reveals that the learned Tribunal while appreciating the evidence of P.W.1, has clearly recorded that "the witness is very slow in understanding the question and answers questions after a gap of time". It has further noticed the fact that "the witness tends to slur in his speech". It has further recorded the fact that P.W.2-Raja Reddy in his cross-examination has admitted that "the appellant is on the borderline of mental retardation". Once the physical and mental disability of the witness were noticed, it is, indeed, surprising that the learned Tribunal has assessed and reduced the appellant''s disability from 40% to merely 15%.
Even if the learned Tribunal was of the opinion that a neurosurgeon or an orthopedic surgeon should have been examined by the appellant, even then, the learned Tribunal was free to call a neurosurgeon or an orthopedic surgeon from a reputed hospital as a Court witness. In catena of cases the Hon''ble Supreme Court has clearly opined that judicial Officers are not mute witness while conducting a trial. In fact, they are expected to be pro-active while conducting the trial. Since it is the duty of the judicial Officer to discover the truth, the judicial Officers are expected to exercise the powers bestowed on them by law. It is, indeed, a settled position that the Courts cannot commit any harm to a litigant. Thus, the learned Tribunal was legally bound to call a neurosurgeon, or an orthopedic surgeon in order to discover the actual extent of disability suffered by the appellant. For the omission of the learned Tribunal, the appellant cannot be made to suffer.
Considering the fact that the appellant has been reduced from a 27 years young man to a border line mentally challenged person and when deterioration of mental capacity is large, naturally a person who is suffering from mental challenge cannot hope to find a job easily in this Country. Therefore, loss of his earning capacity has to be taken as 100%, yet, surprisingly, the learned Tribunal has reduced his disability from 40% to merely 15%. Thus, the learned Tribunal has committed a grave error.
Admittedly, the appellant was proceeding on the motor cycle as a pillion rider. Thus, he has no role to play in the rash and negligent driving of Prashanth Kumar. The inspection report of the motor vehicle clearly reveals that it has suffered extensive damage. Therefore, the learned counsel for the respondent is not justified in claiming that appellant fell from a moving motor cycle as he was inebriated. The inspection report of the motor cycle clearly belies the plea placed by the learned counsel for the respondent. Therefore, the learned Tribunal was not justified in concluding that the appellant had attributed to the alleged accident and in treating it as a case of contributory negligence.
As far as loss of income during the period of treatment is concerned, curiously, the learned Tribunal has noticed that the appellant had submitted voluminous documents to show the extent of his treatment and hospitalization. It has further concluded that he must have been laid off from his work atleast for a period of 6 to 8 months, but, it has still while calculating the loss of income during the period of treatment, taken the loss of income only for four months. Therefore, the compensation in the category of loss of income should have been calculated as Rs. 18,000/- instead of just Rs. 12,000/-.
For the reasons stated above, this Court enhances the compensation as under:--
"Loss of earning capacity to be calculated as Rs. 3,000 x 12 x 17 = Rs. 6,12,000/- + loss of income during treatment period as Rs. 18,000/-. Therefore, without touching the other compensation already awarded by the Tribunal, the grand total comes out to be Rs. 7,35,000/-.
The Insurance Company is directed to pay enhanced compensation of Rs. 5,26,200/- along with interest of 6% per annum from the date of filing of the petition till the date of realization. However, interest shall not be paid for a period of 347 days which was the delay in filing of the present appeal before this Court.
The said amount shall be paid by the Insurance Company in the form of DD in the name of the appellant to be submitted before the Tribunal."