Basavantappa and Others vs M.R. Palaniyappan and Others

P.D. Waingankar, J.—Both these appeals are arising out of the common judgment and award dated 08.06.2010 passed in MVC No. 943/2006 and MVC No. 944/2006 on the file of the Fast Track Court No. III and MACT, Dharwad.

The claimant in MVC No. 943/2006 - Basavantappa and claimant in MVC No. 944/2006 - Kanakappa were travelling in Rani Channamma bus bearing registration No. KA-24/6669 from Hubli to Nargund on 02.07.2006. When the bus reached near Nargund, on account of rash and negligent driving of the bus, the driver lost control and thereby the bus dashed against the mini lorry bearing No. CNB/6456 from behind, which was standing by the side of the road. As a result, both the claimants sustained grievous injuries, for which they were treated as inpatient in Prashanth Orthopaedic Accident Care Centre, Hubli. They underwent surgeries. They spent substantial amount for their treatment. They lost their earnings and despite best treatment, they are left with certain percentage of disability. Therefore, claiming compensation, they filed claim petitions under Section 166 of the MV Act.

Both the claim petitions were opposed by the insurer of the bus. They came up for consideration before the Tribunal. The Tribunal on appreciation of the evidence, while recording a finding as to the negligence on the part of the driver of the bus, awarded a global compensation of Rs. 1,00,000/- each in both the claim petitions together with 6% interest by the impugned judgment and award. Dissatisfied with the quantum of compensation awarded in both the claim petitions, these appeals are preferred.

I have heard both the learned Counsel appearing for the appellants/claimants and the 2nd respondent-insurance company. Perused the records and the judgment and award passed by the Tribunal.

The point that arises for my consideration is:

"Whether the compensation awarded by the Tribunal in both the claim petitions is just and reasonable? 6. Ex. P2 is the wound certificate of the claimant - Basavantappa issued by the Prashant Orthopaedic Accident Care Centre, Hubli, where he was treated as inpatient. It reveals that he sustained the fracture of middle 1/3 femur left leg and cut lacerated wound. He was admitted on 02.07.2006 and discharged on 17.07.2006. Ex. P17 is the disability certificate issued by Prashant Orthopaedic Accident Care Centre. It discloses that he underwent surgery on 04.07.2010. It also discloses that the fracture has united. The Tribunal has not quantified the compensation under the various heads.

Having regard to the nature of injuries sustained by the claimant, that he underwent surgery and having regard to the period of hospitalization, he has been awarded a sum of Rs. 40,000/- under the head injury, pain and suffering''. It is a fact borne out from the wound certificate as well as the disability certificate that the claimant was treated in Prashant Orthopaedic Accident Care Centre, Hubli, which is a private hospital, where he also underwent surgery. The claimant has produced medical bills worth Rs. 45,813/- as per Ex. P6 series. The Tribunal though mentioned the same in the judgment, has not awarded separate amount under the head medical expenses. As such, a sum of Rs. 45,800/- is awarded under the head ''medical expenses''. It is stated that the claimant was working as a driver. But no documents are forthcoming to substantiate the same. In the absence of any proof to show that he was working as driver, I deem it just and proper on my part to treat him as a coolie. He was aged 24 years. As such I am inclined to take his monthly income at Rs. 4,000/-.

Since there was fracture of femur, for which he underwent surgery, he must have been incapacitated from attending to his work at least for a period of three months and thereby he lost his income. Hence an amount of Rs. 12,000/- is awarded under the head ''loss of income during the period of treatment''.

The conditions of the claimant after the accident were such that he was unable to move without the assistance of an attender for a minimum period of two months.

As such, the claimant has been awarded a sum of Rs. 6,000/- under the head Attendant-charges'' at the rate of Rs. 100/- per day for a period of 2 months. Further, an amount of Rs. 5,000/- is awarded towards Conveyance charges and nutritious food''.

The Tribunal has not awarded any amount under the head loss of amenities. So, an amount of Rs. 30,000/- is awarded under the head ''loss of amenities''. The doctor who has been examined as PW 3 and who issued the disability certificate as per Ex. P18, has spoken that the claimant is left with 42-40% physical functional disability. In that case, the disability of the whole body would come to 14%. By adopting the multiplier 18, having regard to his age as 24 years and taking the income at Rs. 4,000/- per month, the total ''loss of future income on account of disability'' comes to Rs. 1,20,960/-. Hence, an amount of Rs. 1,20,960/- is awarded under the head ''loss of future income on account of disability.''

Thus the claimant in MVC No. 943/2006 - Basavantappa has been held to be entitled for a compensation under the various heads as under:

Thus, the claimant Basavantappa has been awarded a total compensation of Rs. 2,59,760/- as against Rs. 1,00,000/- awarded by the Tribunal. There shall be enhancement of Rs. 1,59,760/-.

Coming to the claim petition filed by Kanakappa in MVC No. 944/2010, the wound certificate at Ex. P16 discloses that he sustained Grade-II compound fracture of middle both bones with contusion and multiple abrasion, for which primary debridement and cast was applied apart from daily dressing. He underwent closed ILN on 25.07.2006. He was discharged on 07.08.2006 with an advise to walk with the help of crutches and daily dressing was done for a considerable period of time on account of discharge from the wound. The doctor who examined him for assessment of disability and issued the disability certificate as per Ex. P18 has opined that he suffered 38-42% disability to the whole body. The Tribunal has not awarded compensation under the different heads.

Having regard to the nature of injuries, that he underwent surgery and the period of hospitalisation, he has been awarded a sum of Rs. 40,000/- under the head injury, pain and suffering''.

Insofar as the medical expenses is concerned, the claimant Kanakappa has produced medical bills worth Rs. 33,000/- as per Ex. P11 series. So an amount of Rs. 33,000/- is awarded under the head ''medical expenses''.

It is stated that he was also working as a driver, but no driving licence as such has been produced. In the absence of production of driving licence, he has to be treated as a coolie and his income is taken as Rs. 4,000/- per month. On account of the accidental injuries, he must have been prevented from attending to his work at least for a minimum period of three months and thereby he lost his earnings for a period of three months. So an amount of Rs. 12,000/- is awarded under the head loss of earning during the period of treatment. Further, a sum of Rs. 6,000/- is awarded towards attendant charges'' at the rate of Rs. 100 per day for a period of 2 months and Rs. 5,000/- is awarded towards Conveyance charges, nourishment and nutritious food''.

The Tribunal has not awarded any amount towards loss of amenities. Having regard to gravity of the injuries sustained by him, a sum of Rs. 30,000/- is awarded under the head ''loss of future amenities''. PW 3 - doctor who examined him has assessed the disability to that particular limb as 38 to 42%. When it comes to the whole body, the disability would be 14%. By taking the income at the rate of Rs. 4,000/- per month, adopting the multiplier of 17 having regard to his age, the total loss of future income on account of disability would come to Rs. 1,14,240/-. Hence, an amount of Rs. 1,14,240/- is awarded under the head ''loss of future income on account of disability''.

Thus, the claimant in MVC No. 944/2006 - Kanakappa has been held to be entitled for compensation under the various heads as under:

Thus, the claimant Kanakappa has been awarded a total compensation of Rs. 2,40,240/- as against Rs. 1,00,000/- awarded by the Tribunal. There shall be enhancement of Rs. 1,40,240/-.

Accordingly, I pass the following order:

Order

(i) MFA Nos. 20299/2011 and 20300/2011 are partly allowed.

(ii) The common judgment and award dated 8.6.2010 passed in M.V.C. No. 943/2006 and 944/2006 on the file of the Fast Track Court-III, Dharwad stands modified.

(iii) The claimant in MVC No. 943/2006 has been awarded an enhanced compensation of Rs. 1,59,760/- and the claimant in MVC No. 944/2006 has been awarded the enhanced compensation of Rs. 1,40,240/- over and above the compensation awarded by the Tribunal together with interest at 6% p.a. thereon from the date of the respective claim petitions till the date of realisation.

(iv) The respondent-National Insurance Company Ltd., is directed to deposit the enhanced compensation amount together with interest within a period of two months from the date of receipt of copy of the order.

(v) In the event of deposit, the entire compensation shall be disbursed to the respective claimants.