Y.S. Prakash and Others vs Balagangadhar and Others

B. Sreenivas Gowda, J.—MFA 7223/2011 is filed by the third respondent in MVC No. 2193/2006 challenging the judgment and award passed by the Tribunal in MVC No. 2193/2006 on the file of the Presiding Officer, Fast Track Court, Additional MACT, Hassan, on the ground of negligence, liability and quantum, whereas MFA No. 3107/2011 is filed by the claimant in the said claim petition seeking enhancement of compensation awarded by the Tribunal.

As these two appeals are arising out of a common judgment and award of the Tribunal, with the consent of the learned counsel for the parties, they are heard together and disposed of finally by this common judgment.

For the sake of convenience, parties are referred as they are referred to in the claim petition before the Tribunal.

After hearing the learned counsel for the parties and perusing the judgment and award of the Tribunal including its records, the points that arise for my consideration in these appeals are:--

"1. Whether the finding of the Tribunal on negligence in holding the petitioner/claimant has proved that he sustained injuries at the first instance on account of road traffic accident occurred on 04-12-1999 while he was proceeding on his motor bike along with his friend near Bharathavalli, Hassan - Alur road due to rash and negligent riding of the rider of Hero Honda motor bike bearing registration No. KA-13-H-5963 is sustainable in law?

Whether the finding of the Tribunal on liability in fastening 60% of it on the third respondent/appellant in MFA. No. 7223/2011 and 40% on the insurer of offending Hero Honda motorbike bearing Registration No. 13 H 5963 is sustainable in law?

Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"

Smt. Srividya, learned counsel appearing for the third respondent in the claim petition who is appellant in MFA No. 7223/2011 submits that admittedly the third respondent is neither the rider nor the owner of the offending Hero Honda Motorbike, in spite of that, he is arrayed as party to the claim petition and the Tribunal has committed an error in fastening 60% of the liability against him solely on the ground that after claimant sustaining injuries in the accident, the third respondent alleged to have come to the spot of the accident in his Bullet motor bike and assaulted the petitioner - claimant and caused injury to his left thumb due to which his left thumb was amputed. She submits if the left thumb of the claimant is amputed on account of an alleged assault said to have been caused by the third respondent it does not amount to an injury sustained by the claimant in the road traffic accident and the Tribunal gets no jurisdiction to award compensation under the provisions of the Motor Vehicles Act., consequently, 60% of the liability fastened by the Tribunal on the third respondent is not sustainable in law. Therefore, she prays for allowing the appeal filed by the third respondent and setting aside the judgment and award passed by the Tribunal in so far as fastening 60% of the liability on the third respondent.

Alternatively, she submits that since the third respondent has already deposited a sum of Rs. 36,848/- before the executing Court in view of coercive steps taken by the claimant against third respondent and the said amount has already been withdrawn by the claimant, and even though third respondent is not liable to pay any amount, if the liability fastened on him is restricted to Rs. 36,848/-, the third respondent would not press the appeal on merit and the appeal may be disposed of with that observation.

Learned counsel for the insurer of offending Hero Honda motor bike fairly submits that the insurer of offending Hero Honda Motor bike having not preferred any appeal challenging the judgment and award passed by the Tribunal either on negligence or on liability, the compensation awarded by the Tribunal and enhanced compensation if any to be awarded by this court may be restricted to 40% of the liability as has been held by the Tribunal against the insurer of offending Hero Honda motor bike.

Regarding quantum he submits, whatever compensation which has already been awarded by the Tribunal is just and reasonable and there is no scope for enhancement and he prays for dismissal of the appeal filed by the claimant.

Learned counsel Sri. Byrareddy for Smt. Kavitha the learned counsel appearing for the claimant the appellant in MFA No. 3107/2011, with regard to alternative submission made by the learned counsel for the third respondent/appellant in MFA No. 2193/2006, submits that the claimant has agreed for restricting the claim against the third respondent to Rs. 36,848/- towards full and final settlement of the claim of the claimant made against the third respondent.

Regarding quantum he submits, considering the nature of injuries sustained by the claimant quantum of compensation awarded by the Tribunal is not just and reasonable, it is on lower side and therefore, he prays for allowing the appeal filed by the claimant by enhancing the compensation awarded by the Tribunal.

Regarding liability, learned Counsel submits that in the first instance the claimant has sustained grievous injury to his left thumb and other parts of the body in the road traffic accident occurred on 04.12.1999 due to rash and negligent riding of the offending Hero Honda Motor bike by its rider and later on third respondent assaulted the claimant on his left thumb and caused injuries to his left thumb and as a result, his left thumb was amputed. Therefore, the Tribunal was justified in fastening 40% of the liability against the insurer of the offending Hero Honda motorbike and 60% on the third respondent and that the finding of the Tribunal on liability does not call for interference of this court and he prays for allowing the appeal filed by the claimant by enhancing the compensation awarded by the Tribunal and disposing of the appeal filed by the third respondent by restricting the liability against the third respondent to the extent of Rs. 36,848/-.

Re. points No. 1 and 2:--

"a) The claimant in the claim petition as well as in his evidence examined as P.W. 1 has specifically stated that on 04.12.1999, when he was returning to his village on his motorbike along with his friend near Bharatavalli on Hassan-Alur Road, the rider of Hero Honda Motorbike came and dashed against him, as a result, he sustained injuries and later the third respondent came to the spot in his Bullet motor bike and assaulted the claimant on his left thumb with a chopper and due to which his left thumb was badly injured and later it was amputed.

b) It is also to be noted that in the Wound Certificate Ex. P3, the history of accident is shown as assault by Prakash who is the third respondent before the Tribunal and the appellant in MFA No. 7223/2011.

c) The Tribunal also in its judgment has held that the claimant has sustained injuries in the first instance on account of road traffic accident occurred on 04-12-1999 due to rash and negligent riding of a Hero Honda motor bike by its rider and later on account of assault caused by the third respondent by using chopper. Thus, it is clear that amputation of left thumb of the claimant is not exclusively on account of injury sustained by the claimant in the road traffic accident and it is initially on account of injury sustained by the claimant in the road traffic accident and later on account of assault caused by the third respondent."

As per Sec. 165 of the Motor Vehicles Act, 1988, Motor Accidents Claims Tribunals constituted by a State Government by issuing notification in the Official Gazette, for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both and as per Explanation to Sec. 165, the expression claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles includes claims for compensation under Sec. 140 and Sec. 163-A of the Act. Thus it is clear that Motor Accidents Claims Tribunals are constituted under Sec. 165 of the Motor Vehicles Act, 1988 for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both and that they are not empowered to adjudicate the claims arising out of an act other than the use of motor vehicles. So the claim made by the claimant against the third respondent who alleged to have caused injury to the claimant on his left thumb by assault could not have been adjudicated by the Tribunal constituted under Sec. 165 of the Motor Vehicles Act. The Tribunal without considering this material aspect of the matter has committed an error in fastening 60% of the liability on the third respondent.

However in view of the submissions made by the learned counsel for the third respondent/appellant in MFA 7223/2011 and the learned counsel for the claimant/appellant in MFA 3107/2011 to the effect that the claim made by the claimant against third respondent may be restricted to Rs. 36,848/-, the appeal filed by the third respondent could be disposed of restricting the claim made by the claimant against the third respondent to the extent of Rs. 36,848/-, notwithstanding the fact that claim made by the claimant against the third respondent and 60% of liability fastened by the Tribunal against him is not maintainable.

It is also to be held that the insurer of offending Hero Honda motor bike having not preferred any appeal challenging the judgment and award passed by the Tribunal fastening 40% of liability against them, the finding of the Tribunal on liability in fastening 40% of the liability against the insurer of the offending Hero Honda motor bike is to be confirmed.

Thus, liability to pay compensation is to be apportioned between the third respondent/appellant in MFA No. 7223/2011 and the insurer of offending Hero Honda motor bike at the rate of 60% and 40% respectively. Further it is to be held, that 60% of the amount apportioned against the assailant/appellant in MFA No. 7223/2011 is to be restricted to Rs. 36,848/- which has already been deposited by the third respondent/appellant in MFA No. 7223/2011 and has been withdrawn by the claimant and further the insurer of offending vehicle is directed to pay 40% of the compensation awarded by the Tribunal and additional compensation if any to be awarded by this Court.

Re. Point No. 3:

"a) As per the wound certificate - Ex. P3, the claimant has sustained the following injuries:--

"Tenderness present over the Right Knee and Right Wrist present and his left thumb was amputed."

b) Considering the nature of injuries, Rs. 15,000/- awarded by the Tribunal towards ''Pain and Suffering'' is on the lower side and therefore, it deserves to be enhanced by another Rs. 35,000/- and a sum of Rs. 50,000/- is awarded under this head.

c) Claimant has not produced any medical bills regarding amount spent towards medical and incidental expenses. He was treated as inpatient for 11 days in J.C. Hospital at Hassan. Considering the same, a sum of Rs. 10,000/- is awarded towards "Medical and Incidental expenses".

d) He claims to have been earning Rs. 3,000/- per month. In the absence of proof of income, considering his age as 20 years, the year of accident as 1999 and his avocation as a daily wager his income is assessed at Rs. 2,400/- per month. Nature of injuries suggests that he must have been under rest for a period of four months. Therefore, Rs. 9,600/- is awarded towards "Loss of income during the laid up period".

e) Claimant has sustained injury in the road traffic accident and in the incident both occurred on 04-12-1999, whereas P.W. 2 - doctor in his evidence deposed on 15-03-2008 has stated that claimant has sustained 25% disability to the particular limb. As already held, amputation of left thumb is not exclusively on account of injury sustained by the claimant in the road traffic accident. On the other hand, it is on account of combined act of injury sustained by the claimant in the road traffic accident and the assault caused by the third respondent. Hence, it is not a fit case to award compensation towards loss of future income. However, considering the peculiar circumstances of the case and nature of injuries sustained by the claimant and disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to suffer throughout his life, justice would be met if a sum of Rs. 1,25,000/- is awarded towards loss of amenities and permanent disability and it is awarded."

The break up is as under:

Thus, claimant is entitled to a total compensation of Rs. 1,94,600/- as against Rs. 59,000/- awarded by the Tribunal with interest at 6% p.a. from the date of claim petition till the date of realization.

The liability to pay the compensation awarded by the Tribunal and this Court is apportioned between the third respondent/appellant in MFA No. 7223/2011 and the insurer of offending vehicle at the rate of 60% and 40% respectively, as has been held by the Tribunal and confirmed by this Court.

In view of my finding on point No. 1 and 2, 60% of liability fastened on the third respondent/appellant in MFA No. 7223/2011 is restricted to Rs. 36,848/-. The insurer of offending vehicle is liable to pay 40% of the total compensation of Rs. 1,94,600/- amounting to Rs. 77,840/-, with interest at 6% per annum, from the date of claim petition till the date of realization.

Accordingly, appeals are allowed in part. The judgment and award of the Tribunal is modified to the extent stated herein above. The liability of the third respondent/appellant in MFA No. 7223/2011, namely Y.S. Prakash is restricted to and confined to Rs. 36,848/-, which has already been deposited by him before the Executing Court and therefore, he is not liable to pay any amount. The insurer of offending vehicle is liable to pay 40% of the total compensation of Rs. 1,94,600/- amounting to Rs. 77,840/- with interest at 6% per annum from the date of claim petition till the date of realization, after deducting amount, if any, already paid or deposited within two months from the date of receipt of a copy of the judgment and it is ordered to be released in favour of the claimant.

Statutory amount deposited by the third respondent/appellant in MFA 7223/2011 is ordered to be reimbursed to the appellant.

No order as to costs.