ASIF @ ASIF QUERASHI vs R.DHARMALINGAM MAJOR

Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 06-07-2013 in MVC No.577/2012 passed by the Motor Accident Claims Tribunal, Tumkur (hereinafter referred to as "the Tribunal" for short) filed this appeal seeking enhancement of compensation.

The appellant filed a claim petition contending that on 02-04-2012 at about 4.30 p.m., while he was proceeding in a motorcycle bearing Registration No.CKB-793 on NH-206 on the left side of the road near Ashwini hospital, a tipper lorry bearing Registration No.KA-06/C-5671 driven by its driver in a rash and negligent manner dashed against the motorcycle. Due to that, the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Government Hospital, Tumkur. Thereafter, he has taken treatment in Suguna Hospital at Bangalore. During the course of treatment, the claimant''s right leg above the knee was amputated, thereafter he has taken follow-up treatment in Vinayaka Hospital at Tumkur. He was in the hospital for more than 11/2 months and he was out of employment nearly for an year. Prior to the accident, he was working as a driver and earning Rs.9,000/- p.m. Due to the amputation of right leg, he was permanently disabled to do any work. The accident occurred due to rash and negligent driving of the offending tipper lorry, which is insured with the second respondent. Hence, both the respondents 1 and 2 are liable to compensate the claimant in a sum of Rs.25,00,000/- with interest at the rate of 12% p.a.

The insurance company defended the case by filing written statement.

After trial, the Tribunal held that the accident occurred due to the actionable negligence on the part of driver of the tipper lorry and the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident his right leg was amputated above the knee. The doctor who treated the claimant has assessed the disability to an extent of 80%. As on the date of accident, he was aged about 25 years. With regard to income is concerned, he has produced the salary certificate and also examined the author of the said certificate. The Tribunal, taking into consideration the income of the claimant as Rs.4,000/- p.m., taking the disability to an extent of 80% and applying the multiplier 18 awarded Rs.6,91,200/- towards future loss of income and Rs.1,88,500/- towards medical expenditure; Rs.48,000/- towards loss of income during the laid up period, Rs.30,000/- towards pain and suffering; Rs.15,000/- each in respect of conveyance charges and attendant and nourishing food; and Rs.10,000/- each towards loss of expectation of life and loss of amenities of life. In all, the Tribunal has awarded a sum of Rs.10,07,700/- with interest at the rate of 8% p.a., on a sum of Rs.3,16,500/-. Since the vehicle was covered by the insurance policy as on the date of accident, the liability was fastened on the insurance company to compensate the claimant. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal has filed this appeal seeking enhancement of compensation.

I have heard Sri.Patel S Karigowda, learned counsel appearing for the appellant and Sri.H.N.Keshava Prashanth, learned counsel appearing for the second respondent. Perused the judgment and award and oral and documentary evidence adduced by the parties.

Occurrence of the accident, injuries sustained by the claimant and amputation of the right leg above the knee are not in dispute. The dispute is only with regard to quantum of compensation. The accident occurred in the year 2012. Though the claimant has produced salary certificate issued by the first respondent to show that he was drawing a sum of Rs.9,000/- p.m., and examined the author of the said salary certificate, income of Rs.4,000/- p.m., taken by the Tribunal is on the lower side. Though the owner of the offending vehicle has not maintained any record, regarding appointment or payment of salary, the driving license produced by the appellant clearly discloses that he was a driver by profession. Even for daily wage employees, the income is being taken as Rs.7,000/- p.m., during the relevant period. In the instant case, the Tribunal ought to have taken the minimum income of Rs.7,000/- p.m. Hence, taking the income of the claimant at Rs.7,000/- p.m., disability of 80% as assessed by the doctor and applying the appropriate multiplier of 18, since the claimant was aged about 25 years as on the date of accident, the claimant is entitled to a sum of Rs.12,09,600/- as against Rs.6,91,200/- towards future loss of income. Further, a sum of Rs.30,000/- awarded towards pain and suffering is on the lower side. The claimant was inpatient for a period of 11/2 months and his right leg has been amputated above the knee. Hence, he is entitled to another sum of Rs.30,000/- towards pain and suffering. The claimant has to lead his remaining life with the amputation of leg and a sum of Rs.10,000/- awarded towards loss of amenities of life is very meager. Hence he is entitled to another sum of Rs.40,000/- towards loss of amenities of life. Further, no compensation has been awarded towards artificial limb. Since, the claimant is aged about 25 years and has lost right leg, he is entitled to a sum of Rs.80,000/- towards artificial limb. Hence, the claimant is entitled to total compensation of Rs.16,76,100/- as against Rs.10,07,700/- awarded by the Tribunal. The interest awarded by the Tribunal is contrary to law. The claimant is entitled to interest at the rate of 6% p.a., on Rs.16,76,100/- from the date of claim petition till the date of deposit. Accordingly, I pass the following: ORDER

The appeal is allowed in part. The judgment and award dated 06-07-2013 made in MVC No.577/2012 passed by the Motor Accident Claims Tribunal, Tumkur is hereby modified. The claimant is entitled to compensation of Rs.16,76,100/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit, as against Rs.10,07,700/-.