Anjaneya vs The New India Assurance Co. Ltd.

B. Sreenivas Gowda, J.—The appellant having sustained certain injuries in a road traffic accident filed a claim petition before the MACT, Bengaluru, seeking compensation under Sec. 166 of M.V. Act from the insurer and owner of the vehicle. The Tribunal by its judgment and award, awarded a sum of Rs. 56,500/- with interest at 6% p.a. from the date of petition till its payment. Aggrieved by the compensation awarded by the Tribunal, claimant has preferred this appeal seeking enhancement

Heard, the appeal is admitted and with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.

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

As there is no dispute regarding certain injuries sustained by the claimant in the road traffic accident that occurred on 11-11-2007 by involvement of two vehicles, the points that remain for my consideration in the appeal are:

i) Whether the Tribunal is justified in holding that accident has occurred due to contributory negligence of 50% on the part of the driver of the offending vehicle and 50% on the part of the appellant-claimant?

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

Regarding Point No. 1 :

Learned Counsel appearing for the appellant-claimant submits, the appellant was sleeping near the tractor-trailer as such he had not contributed anything for the accident, the Tribunal without considering the same, has committed an error in holding, he had also contributed for the accident at 50%. He submits, the accident has occurred due to rash and negligent driving of the offending lorry by its driver. He submits, compensation awarded by the Tribunal is also on the lower side. Therefore, he prays for allowing the appeal as prayed for.

Whereas, the learned Counsel appearing for the insurer submits, there is no illegality or infirmity in the findings of the Tribunal either on negligence or on quantum and therefore, he prays for dismissal of the appeal.

The claimant in support of his contention that he was standing by the side of the road and accident has occurred due to sole rash and negligent driving of the offending lorry, except examining himself as P.W. 1 and producing FIR, panchanama, IMV report, and charge sheet at Exs. P. 1, 2, 3 and 6 respectively has not examined any independent witness regarding the manner in which accident has taken place. The Tribunal in para 19 of its judgment has held, appellant was sleeping near the tractor-trailer which had no signal or indicator. Nevertheless, the driver of the offending lorry was expected to drive the lorry on the public road with care and caution and therefore, negligence contributed by the driver of the offending lorry is much more than the negligence contributed by the claimant by sleeping near the tractor-trailer which had no indicator and it could be at the rate of 70% on the part of the driver of the offending lorry and 30% on the part of the claimant. The finding of the Tribunal on negligence is modified accordingly.

Regarding point No. 2 :

As per wound certificate-Ex. P. 4, the claimant had sustained fracture of lower 1/3rd of left humerus and head injury.

Injuries sustained and treatment undergone by him are also evident from original discharge summary-Ex. P. 5, Exs. P. 7 and 8-two other discharge summaries, Ex. P. 10-OP slip, Ex. P. 11- case sheet and supported by oral evidence of the claimant and doctor who were examined as P.Ws. 1 and 2 respectively.

P.W. 2-doctor has stated in his evidence that claimant has suffered disability of 64% to limb. Appellant-claimant is present in the Court and there is hairpin bend above elbow level of the left hand due to fracture of lower 1/3rd left humerus.

Considering the nature of injuries, Rs. 30,000/- awarded by the Tribunal towards pain and suffering is on the lower side and therefore, it is enhanced by another Rs. 20,000/- and I award Rs. 50,000/- under this head.

As Rs. 10,000/- awarded by the Tribunal towards medical expenses is as per medical bills produced by the claimant, the same is just and proper and therefore, it does not call for enhancement.

Claimant was treated as inpatient for 18 days in Victoria hospital, Bangalore. Considering the same, a sum of Rs. 8,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs. 4,000/- awarded by the Tribunal under this head.

Claimant claims to be a coolie in the tractor-trailer near by which he was sleeping at the time of accident. Therefore, his income is assessed at Rs. 4,500/- per month as against Rs. 3,000/- assessed by the Tribunal. Nature of injuries suggest, he might have been under rest and treatment for a period of 4 months. Therefore, a sum of Rs. 18,000/- is awarded towards loss of income during laid up period as against Rs. 9,000/- awarded by the Tribunal.

Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness which he has to undergo for the rest of his life, Rs. 60,000/- awarded by the Tribunal towards loss of amenities is just and proper and there is no scope for enhancement under this head.

Now income of the claimant is assessed at Rs. 4,500/- per month. P.W. 2-doctor has stated appellant has suffered functional disability of 64%. The learned Counsel for the Insurance Co. submits, P.W. 2 is not the doctor who treated the claimant. However, looking at the claimant who is present in the Court and noticing hairpin bend above the elbow on account injury sustained, the functional disability can be taken at 40%. He is aged about 25 years and multiplier applicable to his age group is `18''. Therefore, future loss of income works out to Rs. 3,88,800/- (Rs. 4,500/- x 40/100 x 12 x18) and it is awarded.

Claimant has sustained injury to head and he may be required to spend some money towards future medical expenses. Therefore, a sum of Rs. 10,000/- is awarded towards future medical expenses.

Thus the claimant is entitled for the following compensation:

From Rs. 5,44,800/- a sum of Rs. 1,63,440/- is to be deducted towards 30% negligence contributed by the claimant to the accident and he is entitled for 70% of Rs. 5,44,800/- amounting to Rs. 3,81,360/-.

Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for a total compensation of Rs. 3,81,360/- as against Rs. 1,13,000/- awarded by the Tribunal and with interest at 6% p.a. from the date of claim petition till the date of realisation.

The Insurance Co. is directed to deposit the compensation amount with interest within two months from the date of receipt of a copy of this judgment.

Out of the enhanced compensation of Rs. 2,68,360/-, 75% with proportionate interest is ordered to be invested in F.D. in any nationalized or scheduled Bank in the name of the claimant for a period of 10 years with a right of option to withdraw interest periodically and the remaining amount with proportionate interest is ordered to be released in his favour.

The Tribunal while releasing the amount is also directed to issue FD slip in favour of the claimant, so that he can withdraw FD amount on its maturity the Bank or post office in which amount will be kept in FD is directed release the FD amount on its maturity without insisting for an order from the Tribunal.

No order as to costs.