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Judgment
S. Abdul Nazeer, J.—Bangalore Metropolitan Transport Corporation, K.H. Road, Shanthinagar, (for short ''the Corporation'') has filed this appeal challenging the judgment and award in MVC No. 5653/2002 dated 13.12.2005 on the file of the Motor Accident Claims Tribunal, Bangalore, whereby the Tribunal has awarded a total compensation of Rs. 93,000/- with interest from the dale of the application till the dale of deposit to the first respondent-claimant. The claimant has filed MFA. Crob. No. 475/2007 seeking enhancement of compensation.
I have heard the learned Counsel for the parties.
Learned Counsel for the appellant-Corporation in MFA No. 4979/2006 would contend that the Tribunal was not justified in holding that it is on account of the negligence of the driver of the bus belonging to the Corporation, the accident had occurred. It is argued that the claimant is responsible for the accident. It is further contended that the award of compensation in a sum of Rs. 93,000/-is on a higher side. The claimant was aged 64 years at the time of the accident, The Tribunal was not right in holding the notional income of the claimant was Rs. 2,000/- per-month. The award of compensation towards pain and suffering in a sum of Rs. 35,000/-, and towards loss of amenities in a sum of Rs. 35,000/- are also on a higher side.
Learned Counsel for the claimant submits that when the Tribunal has come to a conclusion that the claimant had permanent disability of 47% to the whole body, it ought to have awarded compensation towards loss of future income. It is contended that having regard to the accident, the claimant has lost vision of his right eye. He is suffering from severe pain at lumbar region. He is finding it difficult for walking and squatting. The Doctor, who has treated the claimant has rightly stated that the claimant has suffered 50% permanent disability to both the shoulders and spine, 90% to the loss of right eye and 47% to the whole body. He prays for enhancement of the compensation.
It is clear from the material on record that the offending vehicle belonging to the Corporation had dashed against a lorry bearing No. KA-05 A-7317. The Bidadi police have registered a case in crime No. 314/2002. 6 to 8 persons travelling in the bus had died in the accident and many had injured. The legal representatives of the persons, who died in the accident, had tiled claim petitions before the Tribunal seeking compensation. Some of them are MVC Nos. 6055/2002, 6056/2002, 6057/2002, 6058/2002, and 5509/2002. The Tribunal has allowed all those claim petitions holding that the driver of the bus belonging to the Corporation was responsible for the accident and has suitably awarded compensation. The Corporation filed appeals challenging the said judgment and awards in MFA Nos.4978/2006, 4980/2006, 4981/2006, 4982/2006 and 7128/2004. All these appeals were clubbed and a common judgment and award was passed by a Division Bench of this Court on 16.4.2009 holding that the driver of the offending bus belonging to the Corporation was responsible for the accident. The appeals were accordingly dismissed. This is not disputed by the learned Counsel for the appellant-Corporation. In view of the judgment and award of the Division Bench as above. the first contention of the learned Counsel for the Corporation that the driver of the bus was not responsible for the accident in question does not survive for consideration.
The second question to be considered is whether the award of compensation by the Tribunal is excessive as contended by the learned Counsel for the Corporation? or is it inadequate as argued by the learned Counsel for the claimant/cross objector?
The Doctor, who had treated the claimant was examined as P.W2. In his evidence, he has stated that the claimant had sustained the following injuries:
(a) Evidence of fracture of L-2 and L-3 transverse process;
(b) Evidence of acute disc injury with neurological deficit;
(c) Multiple lacerated wound over left leg;
(d) Contusion injury of chest; and
(e) Lacerated wound over left eye and right eye.
He has further deposed that the patient was treated conservatively With POP, bed rest and physiotherapy. The patient was complaining loss of vision in his right eye. Later, he was referred to Vijaya Eye clinic. The Ophthalmologist, who examined the claimant has sent a report about the complete loss of right eye. He has again examined the claimant on 4.6.2005 and has found the following disabilities:
(a) Unable to see any object due to total loss of vision;
(b) He is complaining of pain in lumbar region;
(c) Weakness of both lower limb;
(d) Difficult in walking, squatting and sitting cross leg;
(e) C/o pain in both shoulder joint;
(f) Restriction of movements of both shoulder joint;
(g) Evidence of chest disc injury;
(h) Weakness of both lower limb foot muscle;
(i) Lacerated over dorsum of both foot;
(J) Restriction lumbar movements;
(k) Restriction of shoulder movements.
The Doctor has assessed the disability of the claimant by 50% to both the shoulders and spine and 90% to the loss of right eye and 47% to the whole body. His functional disability is about 75% and the same is permanent. He has denied the suggestion that the disability assessed by him is at a higher decree. The accident had occurred on 17.10.2002. The records contain the. x-ray of the claimant dated 17.10.2002 so also the x-rays taken subsequent to the said date. The Doctor has categorically stated that there is a permanent disability to the whole body at 47% and functional disability'' at 50%. He was doing agriculture. On account of the injuries sustained in the accident, he is not able to take up agricultural work. Having regard to the facts and circumstances of the case, it is just and proper to hold that he has suffered 50% permanent disability to the whole body. It is also reasonable to hold that he was earning Rs. 100/- per day (Rs. 3,000/- per month). Since he was aged 60 years at the time of the accident, the multiplier applicable for assessment of loss of future income is 9. The Tribunal has not awarded any compensation under this head, which is unjust and improper. In my view, the claimant is entitled for loss of future earning in a total sum of Rs. 1.62,000/-. He is also entitled for loss of earning during the treatment period for three months in a sum of Rs. 9,000/-. The award of compensation in a sum of Rs. 35.000/- towards of loss of amenities, towards pain and suffering in a sum of Rs. 35,000/-. towards medical expenses in a sum of Rs. 12,000/- and a sum of Rs. 5000/- towards conveyance, attendant, nutrition and other incidental charges are just and reasonable. Thus, the claimant is entitled for compensation as under:
Sl. No. Particulars Amount 1 Towards loss of future earning capacity Rs. 1.62,000.00 2 Towards pain and sufferings Rs. 35,000.00 3 Towards loss of amenities Rs. 35,000.00 4 Towards loss of income during the Rs. 9,000.00 treatment period 5 Towards medical expenses Rs. 12,000.00 6 Towards attendants and nourishment Rs. 5,000.00 charges Total Rs. 2,58,000.00
The Tribunal has already awarded a sum of Rs. 93,000/-which has to be deducted from the aforesaid amount and the balance of compensation payable to the claimant is Rs. 1,65,000/-. The said sum shall carry interest at 6% per annum.
In the result, 1 pass the following:
ORDER
(i) The appeal filed by the Corporation in MFA No. 4979/2006 is hereby dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.
(ii) MFA. Crob. No. 475/2007 filed by the claimant is allowed in part.
(iii) The appellant-Corporation in MFA No. 4979/2006 is directed to deposit a sum of Rs. 1,65,000/- with interest at 6% per annum from the date of the application till the date of deposit in addition to what has been awarded by the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. The Tribunal is directed to deposit a sum of Rs. 1,00,000/- out of the enhanced amount in a Nationalised Bank for a period of three years. The claimant is permitted to withdraw half-yearly interest. The Tribunal is further directed to disburse the balance of the amount to the claimant. No costs.