In the matter of R Nagaraj vs G Ananda on 22 November, 2022 (M.F.A.No.6357/2014 (MV-I) presided by THE HON’BLE MR. JUSTICE H.P. SANDESH stated that This m.F.A is filed under section 173(1) of mv act against the judgment and award dated 21.06.2014 passed in mvc no.146/2010 on the file of the senior civil judge and mact, kadur, chikmagalur and etc
FACTS OF THE CASE
This appeal is filed by the plaintiff challenging the judgment and award dated 21.06.2014 passed in MVC No. 146/2010 in the file of the Senior Civil Judge and Mact, Kadur, Chikmagalur (for short “Tribunal”).
Lead learned counsel appearing for the appellant and learned counsel appearing for the third respondent.
Learned counsel appearing for the plaintiff submitted that as a result of the accident on 31.3.2010 the plaintiff sustained comminuted segmental fracture of right femur with intercondylar fracture, open comminuted fracture of left tibia (both bones), fracture 1 and 2 .metatarsal of the right foot and fracture of the proximal phalanx of the right middle finger with and in support of the claim, the medical examiner was examined as CW1 through the Judicial Commissioner who rated 31% for the right lower limb and 21% for the whole body and the Tribunal, though taking cognizance of the same, was not awarded fair and the reasonable compensation and compensation awarded is very modest. Counsel also submits that the Tribunal erred in taking contributory negligence at 50% only on the ground that the plaintiff has no DL and nothing was elicited from the mouth of PW1 as regards contributory negligence on his part. it’s about respecting the accident. The Tribunal’s approach itself is thus flawed.
On the other hand, the learned counsel appearing for the Insurance Company submits that during the cross-examination of PW1, it was found that he did not have a DL. The appellant, a physical education teacher, was driving a motorcycle without a DL and therefore the Tribunal has rightly taken 50% share of negligence and therefore requires no interference. He further submits that the Claimant claims to be working as a physical education teacher, but no document has been presented to the Court to show that whether or not he continued in his work, the Tribunal was correct in concluding that the Claimant was not entitled to future loss of income.
After hearing the learned counsel appearing for the respective parties and also perusing the material available on record, particularly in the cross-examination of PW1, nothing has been established with regard to negligence on his part and only because he does not have DL, the Tribunal cannot come to the conclusion , that he was also involved in the alleged accident and the police investigated the matter and filed a charge sheet against the offending vehicle and the same is not disputed. If so, and the respondents have not adduced any evidence before the Tribunal as to contributory negligence on the part of the plaintiff. If such material is not available on record, the Tribunal has erred in taking 50% share of negligence on the part of the plaintiff and the very approach of the Tribunal is flawed and only the Court will accept contributory negligence if any material is available on record to show, that he contributed to the accident, but no such material was found in the given case. So the same requires interference.
THE HON’BLE MR. JUSTICE H.P. SANDESH OBSERVED THAT
As regards inconvenience and loss of amenities of life, the Tribunal awarded an amount of Rs.10,000. When the complainant sustained fracture of both the lower limbs and these injuries are also comminuted fractures, he has to lead the rest of his life with this disability as judged by the doctor and he was about 50 years at the time of injury i.e. it is appropriate to award Rs.40,000/- as against 10 000 Rs. In total, the complainant is entitled to compensation of Rs.3,48,491 as against Rs.2,64,655.
The tribunal imposed liability on the insured on the basis that the driver of the at-fault vehicle did not have a carriage clause. It is true that the vehicle involved in the accident is a car and the same is a LNV (Non Transporter) and he had a DL to drive the same. Therefore, the liability must be shifted to the insurer instead of the insured in view of the judgment of the Supreme Court in MUKUND DEWAGAN VS ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663.
- In view of the above discussions, I submit the following:
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal dated 21.06.2014 passed in M.V.C.No.
Rs.2,64,455/- with interest at 6% per annum from the date of application till deposit.
(iii) The insurance company is ordered to pay the compensation amount within 6 weeks from today and the attachment of liability to the insured is hereby cancelled.
(iv) The Registry is directed to send the records to the appropriate tribunal forthwith.
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JUDGEMENT REVIEWED BY HARSHA L NALWAR