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Judgment
K.L. Manjunath, J.—These two appeals are arising out of judgment and decree passed by the MACT, Small Causes, Bangalore in MVC No. 3208/1998.
Heard the learned counsel for the parties.
MFA No. 14273/2007 is filed by the claimant being not satisfied with the compensation awarded to him and also questioning the findings of the Tribunal on the question of negligence.
MFA No. 7995/2008 is filed by the insurer questioning the quantum of compensation awarded by the Tribunal in favour of the claimant.
The facts leading to these appeals are as here under:
According to the petition averment, on 04.07.1997 at about 11.45 p.m., in a night, the petitioner was proceeding from the factory of his brother to his residence by riding Motor Cycle bearing registration No. KA.01/H-4314. While he was crossing 18th Cross, Malleshwaram, Bangalore from East to West, a bus bearing registration No. KA-05/A-2795 drove by his driver in a rash and negligence manner from Sampige Road i.e., from South to North direction dashed against the petitioner''s Motor Cycle. As a result, the petitioner sustained multiple injuries. He was shifted to K.C. General Hospital and thereafter to Mallya hospital and finally to Santhosh Hospital, Bangalore. He was inpatient between 05.07.1997 to 15.09.1997. Immediately after the accident, he was unconscious. He regained conscious after 1� months from the date of accident.
The petitioner was working in a firm at USA as Management Graduate and drawing salary of 2,700 USD. He had also received offer of higher post from some other company on higher pay scale. Since, he sustained permanent disability of 100%, he filed claim petition contending that as on the date of filing the petition, he had spent more than Rs. 10,00,000/- for his treatment.
The owner of the vehicle did not contest the matter. The insurance company has filed the statement of objections. According to the insurance company, the accident did not occur due to rash and negligent driving of the bus. On the contrary, it was due to rash and negligent riding of the Motor Cycle by the petitioner. Therefore, the insurance company requested the Court to dismiss the claim petition.
In order to prove their respective contentions, on behalf of claimant, three witnesses were examined as P.W. 1 to P.W. 3 and relied upon Exs. P1 to 51. No evidence was led on behalf of the insurance company or the owner of the vehicle. The Tribunal considering the evidence led by the parties held that the accident occurred due to contributory negligence of the petitioner as well as the driver of the bus at the ratio of 25% and 75% respectively. The Tribunal also awarded total compensation of Rs. 78,69,758/- on various heads and being not satisfied with the same, these two appeals filed by the claimant as well as by the insurance company.
Learned counsel for the claimant submits that the Tribunal has committed an error in holding that the accident occurred due to contributory negligence of the petitioner as well as the driver of the bus and he has contributed to the accident at 25%. According to him, the Tribunal did not consider the sketch prepared by the police during the course of investigation and if the sketch had been considered coupled with the evidence of P.W. 1 and the eye witness, the Tribunal would have required to hold that the accident occurred due to rash and negligent driving of the bus only. Therefore, he requests to set aside the findings of the Tribunal on the question of contributory negligence. So far as quantum of compensation is concerned, the petitioner who was appointed in USA as Management Graduate had bright future, due to neurological problem, has suffered 100% disability and the quantum of compensation awarded by the Tribunal has to be enhanced.
Per contra, Sri O. Mahesh, learned counsel for the insurance company contends that the Tribunal is justified in holding that the accident occurred due to contributory negligence of the driver of the bus as well as the claimant. According to him, 25% contribution to the accident by the claimant is required to be enhanced. He further contends that quantum of compensation awarded by the Tribunal is on higher side and requests to reduce the same.
Having heard the learned counsel for the parties, we have to consider the following two points in these appeals:
Whether the finding of the Tribunal on the question of negligence requires to be interfered with?
Whether the quantum of compensation awarded by the Tribunal requires to be'' confirmed, enhanced or reduced?
So far as point No. 1 is concerned, admittedly the accident occurred at the intersection of Sampige road and 18th Cross. Ex. P4 is the spot sketch. According to P.W. 1, he was proceeding from East to West. He had almost crossed the intersection towards the West. According to Ex. P4, the bus was proceeding from South to North. When the claimant had almost crossed the intersection of Sampige road and 18th Cross and he was about to enter 18th Cross after crossing the Sampige road when there was no traffic at night, it was for the bus driver to explain how the accident occurred and the driver has not been examined to consider the case of the Insurance Company. According to sketch, the bus was just entering 18th Cross road after crossing Sampige road. Therefore, the bus driver should have been very careful before entering 18th Cross, Malleshwaram from South towards North. In the absence of evidence of driver of bus, the Tribunal is not justified in holding that the accident occurred due to contributory negligence.
The Tribunal did not consider that the contention of the insurance company is altogether different from Ex. P4. According to the insurance company, both the vehicles were proceeding in the same direction, but the charge sheet filed against the driver discloses that both the vehicles were not proceeding in the same direction. On the contrary, the Motor Cycle was proceeding from East to West and the bus was proceeding from South to North. Therefore, the Tribunal was required to reject the contention of the insurance company, since the same is contrary to the documents prepared by the police during the course of investigation. We cannot consider the contention of the insurance company because the person who had given instructions to the insurance company has not been examined and charge sheet filed against the driver is not questioned by the insurance company. The Tribunal has not considered Ex. P4 and the reason for not examining the driver of the bus is also considered. In the circumstance, this Court is of the opinion that the contention of the Tribunal on the question of negligence is to be set aside holding that the accident occurred due to rash and negligent driving of the bus only. Accordingly, we have answered point No. 1.
So far as point No. 2 is concerned, according to the claimant, he was suffering 100% disability. According to P.W. 3-Dr. Sathish Babu, the petitioner is suffering from following injuries:
a) higher mental functions
b) speech slurred mod degree 50%
c) Memory Immediate severe loss 100%
Recent Mod loss 75%
Remote severe loss 100%
d) Counting severe loss 75%
e) Recognitions severe loss 75%
f) Cranial nerves Vision optic nerve 10%
g) Motor system Rthemiparcsis spastic 25%
h) Cerebellar system gait ataxed mod 50%.
Therefore, P.W. 3 has stated the disability caused to the claimant as 100%.
The Tribunal has considered only 50% disability. The Tribunal has not assigned any reason as to why it assessed disability at 50% contrary to the evidence of P.W. 3. Before this Court, the petitioner was sent for further medical examination. Doctors from NIMHANS have given a certificate also. If we consider the evidence of P.W. 3 and nature of neurological problem suffering by the petitioner, it cannot be considered that he is suffering from 100% disability because he has been examined as P.W. 1 before the Court seven years after the accident. P.W. 3 has stated that he has examined him on 05.10.2004, but P.W. 1 has examined before the Tribunal on 24.07.2003. When he depose before the Court on 24.07.2003 as a normal person, we are unable to understand the evidence of P.W. 3 wherein he has stated that the petitioner is suffering from loss of memory, loss of ability to count, repeat and recognize, unsteady gait, Mood changes with violent behavior, giddiness, headache and that he has speech-slurred-mood of 50% degree. If a person is having a disability of slurring that should have been noted by the Hon''ble Tribunal. Though the claimant is suffering from 100% disability, he was examined as P.W. 1. We do not see any material on record i.e., the order sheet of the trial Court or the deposition of P.W. 1 that he is suffering from slurred - mod speech and other disabilities. Therefore, we are of the view that the Tribunal has not assessed the evidence of P.W. 1 and P.W. 3 properly and in addition to that since the petitioner was directed by this Court to undergo the medical check by the Medical Board, the said evidence is required to be considered by the trial Court. In the absence of proper appreciation of evidence of medical and physical condition of the claimant, it would not be proper for us to assess the quantum of compensation by way of guess. In the circumstance, we are of the view that the matter requires re-consideration by the Tribunal afresh so far as assessment of compensation is concerned.
In the result, these two appeals are disposed of. The finding of the Tribunal on the question of negligence is set aside holding that the accident has been caused by the driver of the bus due to rash and negligent driving. The matter is remanded to the Tribunal for fresh consideration to assess the quantum of compensation on all heads payable to the claimant. The Tribunal is directed to give opportunity to both the parties to led their further evidence and thereafter dispose of the matter. Since the claim petition is of the year 1997, the Tribunal is directed to dispose of the claim petition within six months from the date of first appearance of the parties. The parties are directed to appear before the Tribunal on 08.12.2014.
Amount in deposit is ordered to be transferred to the trial Court.