Judgment:
A.R. Venugopala Gowda, J.
1. The appellant was the petitioner in MVC 725/2003 on the file of the I Additional Motor Accident Claims Tribunal at Chitradurga. He had filed the said petition under Section 166 of the Indian Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him in a motor vehicle accident which took place on 1.6.2003 near Siddapura bus-stand of Chitradurga Taluk on account of alleged rash and negligent driving of the bus bearing Reg. No. KA-14/A-8595 by its driver. The respondents were the owner and insurer of the said vehicle. It was averred that he has suffered loss on account of the Injuries sustained in the said accident which should be compensated by the respondents. The 1st respondent -owner remained absent and was placed ex parte by the tribunal. The respondent - Insurance Company contested the claim petition denying the averments made in the claim petition. Based on the pleadings of the parties, the tribunal raised the following issues for Its consideration:
1. Whether the petitioner proves that he sustained injuries in a road accident that occurred on 1-6-2003 at about 2.50 p., near Siddapura bus stand (road) at Chitradurga taluk, within the limits of Chitradurga Rural Police Station, due to rash and negligent driving of bus bearing No. KS-14/A-8535 by its driver?
2. Whether respondent No. 2 proves that the accident took place due to rash and negligent act of the petitioner himself?
3. Whether petitioner is entitled for compensation? if so, what is the quantum and from whom?
4. What decree or order?
2. Appellant got himself examined as PW. l and examined the doctor who treated him as PW. 2. Exs. P1 to P14 were marked in his evidence. On behalf of the respondents, other than marking Ex. R1 by consent, no other evidence was placed on record. Considering the evidence on record, the tribunal answered the issue relating to rash and negligent driving of the bus by its driver, partly in the affirmative. It held that there was contributory negligence on the part of the claimant to an extent of 25%, he having travelled by standing near the back door of the bus. On assessment of the injuries sustained and the resultant loss, total compensation of Rs. 79,950/- with interest at 6% p.a. was awarded. This appeal is filed against the said award inter alia contending that, the finding with regard to contributory negligence is erroneous and that the assessment of compensation is not just and correct.
3. I have heard the learned Counsel for the appellant and 2nd respondent and perused the record.
4. Learned Counsel for the appellant contended that, the finding of the tribunal with regard to contributory negligence Is contrary to the stand of the appellant/petitioner to the effect that the accident took place due to the opening of the back door of the bus on account of which, though he was seated, fell down on the road side and sustained grievous Injuries. Learned Counsel contended that, the finding of the tribunal that, the appellant has travelled by standing near the back door of the bus, Is without any material support and hence, is wholly erroneous. Hence, it was contended that, the deduction in the award, 25% on the Compensation determined is, illegal. It was further contended that, the amount assessed and awarded under the heads 'pain and suffering', 'medical expenses', 'loss of income during the period of treatment and recovery' as well as 'loss of future earnings', is not Just and correct. He submitted that, this Court may re-assess the evidence and modify the impugned Judgment and award and to allow the claim in full.
5. Per contra, learned Counsel for the Insurance Company invited my attention to Ex.P1, copy of FIR, wherein the statement of the appellant/petitioner has been recorded, in which, he categorically admitted that, he was standing near the back door of the bus. Learned Counsel contended that, in view of the admission contained in Ex.P1 and the very case of the appellant at the earliest point of time before the police and the FIR having been marked as a document in support of his case, the appellant is bound by the same and the consequential finding recorded by the tribunal with regard to contributory negligence to the extent of 25%, is justified. Learned Counsel contended that, considering the evidence on record, the assessment of compensation has been made by the tribunal, which is just and hence, no enhancement is called for in the facts and circumstances of the case.
6. In view of the rival contentions and the record, the points for consideration are:
(i) Whether the tribunal is justified in holding that there was contributory negligence on the part of the appellant/petitioner to an extent of 25%?
(ii) Whether the tribunal has awarded just compensation?
Re Point 1:
7. After the accident, appellant admittedly filed complaint with the police. On the basis of the statement made by the injured/appellant, the police have registered the case against the driver of the offending bus. Ex.P1 is the FIR. From the perusal of Ex.P1, it is dear that, when the appellant was travelling in the bus on 1.6.2003 by standing at the back door of the bus, he fell down on account of bus having been driven with high speed and negligence and as a result, sustained injuries. In the cross-examination, while deposing as PW. 1, he has admitted that, the contents of Ex. P1 are correct. Thus the fact that, the appellant was standing near the back door of the bus when the accident took place, is an admitted fact. By standing near the back door of the bus which was overloaded, the appellant has not taken reasonable care and has acted negligently and has contributed for the accident. Had the appellant taken reasonable care, he would not have fallen out of the bus and sustained Injuries. If the bus was over-loaded, the appellant ought not to have travelled by standing near the back door of the bus. He has also contributed for the accident in question and hence the tribunal was justified in holding that there Is 25% negligence on the part of the appellant Point No. (1) is accordingly answered.
Re. Point (II):
8. PW.2 who has treated the injured/appellant has issued Ex.P12 - disability certificate. Ex.P3 is the wound certificate. A perusal of the same shows that, the appellant had sustained the fracture of right radius and left radius. POP was applied for a period of 6 weeks and the injured was treated. He has denied the suggestion that, the disability to the whole body is 15%. Considering the nature of Injuries sustained and the resultant effect, in my view, the tribunal has not awarded the just compensation under the heads 'pain and suffering' 'medical expenses' and 'loss of Income during the treatment'. Further It has failed to award any amount under the head 'loss of amenities' considering the nature of injuries sustained, percentage of disability and the discomfort which the injured has to face throughout his life. Keeping in view the nature' of injuries sustained, it would be just to award a further sum of Rs. 30,000/- under the head 'pain and suffering'. The tribunal has awarded meager sum of Rs. 5,000/- towards medical and incidental charges. Considering the period of treatment, the appellant must have spent considerable amount towards travelling, extra nourishment, attendant charges, apart from the cost of treatment. Hence, it would be reasonable to award a further sum of Rs. 5,000/- under the said head. It can be expected that, having suffered the Injuries of the type, which has been noticed by the tribunal in its Judgment, the appellant could not have attended to his work atleast for a period of 3 months and hence there Is consequential loss. The appellant is entitled to an additional sum of Rs. 3,000/-under the head 'loss of Income during the period of treatment and recovery'. Since no amount has been awarded under the head 'loss of amenities', keeping in view the percentage of disability, it would be just and reasonable to award a sum of Rs. 10,000/- thereunder. The computation under the head 'loss of future earnings' on account of physical disability is just end reasonable and no enhancement is called for. Point No. (ii) is answered accordingly.
In the result, the appeal is allowed In part. In addition of the amount awarded by the tribunal, there shall be an addition of Rs. 48,000/- which amount shall carry interest at 6% p.a. from the date of filing of claim petition till payment. The 2nd respondent shall deposit the enhanced award amount of Rs. 48,000/- and the interest, In the tribunal, within a period of 4 months from today. No costs.
Registry is directed to draw modified award.