(Prayer: This MFA is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 02-06- 2012 passed in MVC No.1377/2011 on the file of Motor Accident Claims Tribunal-Xii, Bellary, awarding the compensation of Rs.1,50,500/- with interest at the rate of 6% P.A., from the date of petition till its deposit & etc.)

Oral Judgment

1. Since matter is of year 2013, it is taken up for disposal.

2. Challenging judgment and award dated 02.06.2012 passed by MACT-XII, Belagavi ('Tribunal', for short) in MVC no.1377/2011, this appeal is filed.

3. Sri Shivakumar S. Badawadagi, learned counsel for appellant submitted appeal was by NEKRTC. It was submitted that as per claimant on 19.07.2007 when claimant was riding motorcycle no.KA-34/U-3408 on Ballari - Hosapete road near Allipura, driver of bus no.KA-34/F-603 drove it in rash and negligent manner and dashed against motorcycle causing accident. In accident, claimant sustained grievous injuries and despite taking treatment at VIMS Ballari and St.Mary Hospital, he did not recover fully and sustained loss of earning capacity. Therefore, he filed claim petition under Section 166 of Motor Vehicles Act, 1988 against NEKRTC.

4. On appearance, respondents denied entire claim petition averments. NEKRTC denied accident had occurred due to rash and negligent driving of Bus by its driver and alleged negligence against rider of motorcycle. Based on pleadings, Tribunal framed issues and recorded evidence. Claimant along with Dr.Lakshminarayana deposed as PWs1 and 2 and got marked Exhibits P1 to P13. Driver of Bus was examined as RW1 and Exhibits R1 and R2 got marked.

5. On consideration, Tribunal held accident had occurred due to rash and negligent driving of Bus by its driver and claimant was entitled for compensation of ₹1,50,500/- with interest at 6% per annum from NEKRTC. Aggrieved, appeal was filed.

6. It was submitted Tribunal erred in concluding that after crossing speed breaker, driver lost control of Bus and dashed against motorcycle by disbelieving accident spot sketch and accepting charge sheet as substantiating actionable negligence.

7. On quantum, it was urged that assessment of disability at 25% to whole body by PW2 who was an orthopedic surgeon and not Neurologist had led to excessive award. On above grounds sought for allowing appeal.

8. From above, points that arise for consideration are:

          1. Whether finding of Tribunal regarding occurrence of accident was due to rash and negligent driving of Bus by its driver is justified? and

          2. Whether Tribunal erred in awarding compensation towards future loss of income?

9. Point no.1: To establish actionable negligence against respondents, claimants relied upon 110 notice, FIR, spot panchanama, Motor Vehicle Accident Inspector's report and charge sheet. Though Ex.P4/R1-spot sketch is sought to be relied upon to contend NEKRTC driver was not rash and negligent in causing accident, contents of accident spot panchanama-Ex.P3, spot sketch-Ex.P4/Ex.R1 would reveal that road at accident spot runs East-West with Bus in question driven from West to East, on a 24 feet wide tar road with 10 feet kachcha road on either side. Accident spot shown is at a distance of 3 feet from southern edge of tar road clearly indicating that accident spot would be on extreme right side of Bus. Besides, police after investigation have charge sheeted driver on causing accident on account of rash and negligent driving. Though, driver has deposed as RW1, based on documentary evidence, Tribunal disbelieved deposition holding RW1 for rash and negligent and causing accident, based on correct appreciation of material on record and by assigning reasons. Hence, point no.1 is answered in affirmative.

10. Point no.2: On quantum it is seen Ex.P6-wound certificate issued would mention only abrasion injury apart from blunt injury to head. Abrasion injury is noted to be simple. Insofar as blunt injury to head, X-ray taken does not indicated any fracture. However, Ex.P9 to P13 treatment records of claimant indicate that claimant had irritable behavior during treatment. Doctors suspected neurological effect and appear to have investigated same. However, CT Scan report is not produced. Only CT Scan films along with X-rays are produced. Ex.P10-discharge summary does not indicate any neurological issues. However, PW2 has issued Ex.P12-disability certificate assessing 25% disability.

11. Careful perusal of Ex.P12-disability certificate would indicate reference to CT Scan report which as noted above is not produced and marked. Interestingly, Ex.P13 X-ray report refers to fracture of fibula which would contradict wound certificate.

12. In any case, there is no disability assessed on account of fracture of fibula. Apart from above it is seen that, PW2 is an Orthopedician and not a neurologist. When treatment records do not refer to any neurological disorder, consequent to accidental injuries, it was not appropriate for Tribunal to have believed assessment by PW2 for awarding compensation towards future loss of income. Therefore, compensation awarded towards future loss of income would require to be set aside. Hence, point no.2 is answered in affirmative.

13. Consequently, following:

ORDER

          (i) Appeal is allowed in part. Judgment and award dated 02.06.2012 passed by Motor Accident Claims Tribunal-XII, Bellary in MVC no.1377/2011, is modified.

          (ii) Compensation of Rs.1,50,500/- awarded by Tribunal is reduced to Rs.74,000/-. Same shall carry interest at 6% per annum from date of claim petition till deposit.

          (iii) Amount in deposit is ordered to be transmitted to Tribunal forthwith. For payment of balance compensation amount eight (8) weeks' time is granted.

          (iv) On deposit, entire compensation is ordered to be released in favour of claimant.