Ashmath B.I. vs Venkataraja Bhattar and United India Insurance Co. Ltd.

H.S. Kempanna, J.—Though this matter is listed for admission with consent of the learned Counsel for the respective parties, it is taken up for final disposal.

This appeal is by the claimant seeking for enhancement of compensation in respect of the injuries, which she sustained in a motor accident.

The brief facts of the case are:

The Appellant/ claimant instituted the claim petition before the Tribunal claiming compensation in respect of the bodily injuries, which she sustained in the motor accident that took place on 08.09.2002 at about 5.30 p.m. near Belagumba situated on Belagumba Urudugere road coming within the jurisdiction of Tumkur district involving the motor cycle bearing Reg. No. KA-01/U-2141 owned by the first Respondent and insured with the second Respondent/insurer at the relevant point of time, In the impugned accident, she sustained severe injuries, which comprised of fractures for which she took treatment in the hospital by spending huge amount. Despite the same, she is not completely cured of her injuries, due to which, she is unable to carry on her avocation, which has resulted in loss of income to her. Accordingly, she sought for grant of compensation.

After service of notice, the first Respondent owner remained absent Hence, he was placed ex-parte. The second Respondent/insurer appeared and contested the claim of the Petitioner. It was contended that the accident in question has not taken place on account of the fault of the rider of the motor cycle. On the other hand, it took place due to the negligence of the claimant herself. They further contended that the rider of the motor cycle did not possess valid and effective licence to drive the motor cycle at time of the accident, as such there is breach of the terms and conditions of policy. They also denied all other averments made by the claimant in her petition. Accordingly, they sought for dismissal of the petition as against them.

On the basis of the above pleadings, the Tribunal framed in all three issues.

The claimant in support of her case got examined herself as PW.1 and the doctor who has examined her as PW.2. She produced 11 documents, which came to he marked as Exs.P.1 to P.11. On behalf of the Respondents, they have not chosen to lead any oral evidence or produced any documents in support of their case.

The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the fault of the rider of the motor cycle and accordingly, the claimant has established actionable negligence, Further the Tribunal looking to the evidence of the Appellant/ claimant, Medical Officer-PW.2, who has examined her and the documents placed on record, has awarded total compensation of Rs. 50,300/- in all under various heads with interest at 6% per annum from the date of petition till realisation. It further saddled the liability of payment of compensation on the second Respondent - insurer.

The Appellant/claimant being aggrieved by the quantum of compensation is in appeal before this Court.

The learned Counsel appearing for the Appellant/ claimant submitted that the Tribunal has erred in not awarding just and reasonable compensation towards injury, pain and suffering, loss of amenities and loss of income during laid up period, despite the evidence of the claimant, Medical Officer-PW.2 who has examined her and the documents placed on record, Hence, a case for enhancement is made out However, no grievance was made in respect of the compensation awarded under other heads.

Per contra, the learned Counsel for the contesting Insurer supported the impugned judgment and award of the Tribunal.

Taking the rival submission into consideration, evidence and documents on record, the point that arises for my consideration is:

Whether Appellant/ claimant has made out a case for enhancement of compensation?

The facts are not in dispute. The Appellant/claimant having met with accident, injuries sustained, treatment taken and the amount spent for the same are not in dispute. It is the case of the claimant that in the impugned accident she sustained injuries which comprised of fracture to her right leg, for which she took treatment in the hospital for about 11 days. Her testimony is fortified from the evidence of PW.2 -Medical Officer who has examined her and the wound certificate, which is at Ex. P.4 and discharge summary, which is at Ex.P.6. The same discloses that the claimant has sustained compound fracture of Tibin and Fibula coupled with other injuries. In this connection, I may mention here itself at the time of hearing, the learned Counsel for the Appellant placed before this Court copy of the wound certificate, which is at Ex.P.4 which was also perused by the learned Counsel appearing for the contesting Respondent That wound certificate which is at Ex.P.4, which has been placed before this Court reveals that the claimant has sustained compound fracture of tibia and fibula as testified by the Doctor-PW.2. The impugned order further discloses that as per the evidence of PW.2-Doctor the claimant has 15% disability to the right Inwer limb. Despite these materials on record, the Tribunal has awarded only & sum of Rs. 10,000/-towards injury, pain and suffering, which in my view is not just and proper. Therefore, taking the nature of injuries which the claimant has sustained which has been adverted to above, the claimant is awarded a sum of Rs. 20,000/- towards injury, pain and suffering in addition to Rs. 10,000/- awarded by the Tribunal Thus the claimant is entitled to total compensation of Rs .30,000/- towards injury, pain and suffering. Further the Tribunal has awarded a sum of Rs. 4,000/-towards medical expenses relying on the medical bills which are at Exs. P.7 series. The same in the facts and circumstances appears to be just and reasonable and as no grievance in respect of the same is made before this Court, it does not call for any modification. Further the Tribunal has awarded a sum of Rs. 5,000/- towards conveyance, nourishment and attendant charges. The claimant is aged 38 years, beedi roller cum coolie by profession. The accident has taken place on 08.09.2002. She claims that she took treatment in the hospital for a period of 11 days. As already pointed out she has sustained compound fracture of both bones of her right leg. This would automatically go to show that the Appellant/claimant after she has been discharged from the hospital must have taken follow up treatment also, for which she must have spent considerable amount, Therefore the amount of Rs. 5,000/- awarded towards conveyance, nourishment and attendant charges is just and reasonable and does not call for any interference. Further the Tribunal has awarded only a sum of Rs. 5,000/- towards loss of amenities, which also in the facts and circumstances is not just and proper, Having regard to the nature and degree of the injury sustained, which has been adverted to above, in my view, the claimant has to suffer discomfort and unhappiness in future also. Taking this into consideration, the claimant is awarded, a further sum of Rs. 10,000/- towards loss of amenities in addition to Rs. 5,000/- awarded by the Tribunal.

The next aspect that falls for consideration is the determination of income of the deceased, the compensation to be awarded towards loss of income during laid up parted and loss of future income. The claimant has claimed that she is aged 38 years, beedi roller cum coolie by profession, earning more than Rs. 6,000/- pear month. But she has not produced any material to establish that she was getting that much of income at least by examining the owner of the beedi branch where she was tendering beedi rolled every day or weekly, In the absence of the same, taking her age, date of the accident i.e. on 08.09.2002 the income at Rs. 3,000/- per month determined by the Tribunal appears to be just and reasonable and does not call for any modification. The Tribunal has awarded a sum of Rs. 1.100/- only towards loss of income during laid up period, the same in the facts and circumstances is not just and reasonable, The claimant as stated to above has sustained compound fracture of both bones of her right leg. Therefore, in the ordinary course, it follows that she could not have attended to her normal work at least for a period of three months, for which period she should be compensated towards loss of income during laid up period. The income of the claimant is determined at Rs. 3,000/- per month. For three months the claimant is awarded a sum of Rs. 9,000/- towards loss of income during kid up period at the rate of Rs. 3,000/- as against Rs. 1,100/- awarded by the Tribunal. The last question that fails for consideration is loss of future income, The Tribunal has awarded a sum of Rs. 25,200/- towards loss of future income, taking the income at Rs. 3,000/- disability at 5% as spoken to by PW. 2-Medical Officer and the proper multiplier ''14'' that becomes applicable having regard to the age of the claimant The same in the facts and circumstances is Just and proper and as no grievance is also made in respect of the same before this Court it does not call for any modification. Thus the claimant in all is entitled to total compensation in a sum of Rs. 88,200/- with interest at 6% percent per annum from the date of petition till realisation as against Rs. 50,300/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal

The break up of the compensation awarded is as fellows:

a) Towards injury, pain and Suffering

Rs. 30,000/-

b) Towards loss of medical Expenses

Rs. 4,000/-

c) Towards conveyance, nourishment And attendant charges

Rs. 5,000/-

d) Towards Joss of amenities

Rs. 15,000/-

e) Towards lose of income during Laid up period (3000 x 3)

Rs. 9,000/-

d) Towards loss of future income

Rs. 25,200/-

Total

Rs. 88,200/-

Thus, the claimants in all are entitled to total compensation of Rs. 88,200/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs. 50,300/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 37,900/- with interest at the rate of 6% per annum from the date of petition till realisation.

Accordingly, appeal has to succeed In part.

In result for the foregoing reasons, I proceed to pass the following:

ORDER

(i) The Appeal is allowed in part.

(ii) The impugned judgment end award passed by the Tribunal is modified and the Appellant/claimant is awarded total compensation of Rs. 88,200/- with interest at 6% per annum from the date of petition till realisation as against Rs. 50,300/- with interest at the rate of 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 37,900/- with interest at 6% per annum from the date of petition till realisation.

(iii) Second Respondent- Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award.

(iv) Out of the enhanced compensation with interest, 60% of the same with interest is ordered to be deposited in the name of the Appellant/claimant in any Nationalized/ Scheduled bank for a period of five years renewable by further for a period of five years. The balance 40% with proportionate interest is ordered to be released in her favour.

Office to draw the award accordingly.