Basawwa vs Mahibubsab and another

B. Manohar, J. - Appellant is the claimant being not satisfied with the quantum of compensation awarded in the judgment and award dated 30th April, 2011 made in MVC No. 81/2010 passed by the .Senior Civil Judge and Member, Motor Accident Claims Tribunal, Basavana Bagewadi (hereinafter referred to as `the Tribunal'' for short) has filed this appeal seeking for enhancement of compensation.

It is the case of the claimant that, on 31-10-2009 at about 12.00 p.m., the claimant along with her son was going in front of bus-stand to Market road near Ambedkar Circle, at Bilagi. At that time, a Tom Tom autorickshaw bearing registration No. KA-29/7598 driven by its driver in a rash and negligent manner came and dashed against the claimant, due to which, the claimant sustained grievous injuries. Initially she had taken treatment at Primary Health Center at Bilagi and thereafter, she took treatment in Kerudi Hospital at Bagalkot. In the accident, the claimant has sustained fracture and other injuries. Prior to the accident, she was working as a coolie and earning a sum of Rs. 6,000/- p.m. In view of the injuries she sustained in the accident, she cannot work as a coolie and sought for compensation of Rs. 7,10,000/-.

In pursuance of the notice issued by the Tribunal, the owner of the vehicle entered appearance and filed written statement contending that he is the owner of the Tom Tom autorickshaw and he denied the occurrence of the accident. He further contended that the compensation claimed is exorbitant and as on the date of the accident, the vehicle was insured with the second respondent. Hence, he sought for dismissal of the claim petition as against the owner of the vehicle.

The second respondent-Insurance Company filed written statement denying the occurrence of the accident and also contended that the driver of the Tom Tom autorickshaw was not holding the effective Driving License as on the date of accident. Hence, sought for dismissal of the claim petition as against the insurance Company.

On the basis of the pleadings of the parties, the Tribunal framed the necessary issues.

The claimant in order to prove her case, examined herself as P.W. 1 and got marked the documents as Ex. P.1 to Ex. P.23. On behalf of the respondents, none of the witnesses were examined. However, the insurance policy of the Tom Tom autorickshaw was marked as Ex. R1.

The Tribunal, after considering the oral and documentary evidence let in by the parties and taking into consideration the copy of the complaint, FIR, IMV report held that the accident had occurred due to the rash and negligent driving of the Tom Tom autorickshaw by its driver and the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained (a) lacerated wound over the left lateral eye brow; (b) lacerated wound over the left medial mallealolus; (c) abrasion wound over left medial aspect of the greater toe. The X-ray report issued by the Kerudi hospital shows that there is fracture of left lateral end of the clavicle. At the time of accident the claimant was aged about 65 years. In the cross-examination, she has stated that she was looked after by her son. Due to her old age, she cannot do any work. In view of that, the Tribunal awarded a sum of Rs. 15,000/- towards pain and suffering ; Rs. 15,000/- towards loss of amenities of life; Rs. 5,000/- towards conveyance, attendant and nourishment charges and Rs. 3,870/- towards medical expenditure. In all, the claimant was awarded a sum of Rs. 38,870/- with interest at 8% p.a. from the date of petition till realisation. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed this appeal.

Sri Harshavardhana R. Malipatil, learned counsel appearing for the appellant contended that the compensation awarded by the Tribunal is too meager. In the accident, the claimant has sustained fracture of left lateral end of clavicle and other injuries. No compensation has been awarded towards fracture of left lateral end of clavicle and sought for enhancement of compensation.

On the other hand, Sri. M. Sudarshan, learned counsel appearing for the second respondent as well as Sri. Sharanabasappa K. Babshetty learned counsel appearing for the owner of the vehicle argued in support of the judgment and award passed by the Tribunal and contended that the tribunal has awarded just compensation and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award and oral and documentary evidence adduced by the parties.

The records clearly disclose that due to the actionable negligence on the part of the driver of the Tom Tom autorickshaw the, accident had occurred on 31-10-2009 and claimant has sustained injuries. Initially she had taken treatment in the Primary Health Center at Bilagi and thereafter she had taken treatment at Kerudi hospital at Bagalkot. She has sustained fracture and other injuries due to the accident. At the time of accident, the claimant was aged about 65 years. The Tribunal has not taken into consideration the fracture sustained by the claimant while awarding compensation. Though the claimant has not undergone any operation, she has taken conservative treatment and she has suffered a lot. The lacerated wound over left medial mallealolus extended up to the heel exposing the bone measuring 9 x 5 cms and the lacerated wound over the left medial aspect of greater toe measuring 1 x 1 cm takes lot of time to heal at the age of 65 years. Hence, the claimant is entitled for a sum of Rs. 20,000/- towards pain and suffering in addition to a sum of Rs. 15,000/- awarded by the Tribunal. Further, the claimant is also entitled to a sum of Rs. 20,000/- towards loss of amenities of life, since she had to lead her remaining life with the said disability. In all, the claimant is entitled to enhanced compensation of Rs. 40,000/- with interest at 8% p.a. Accordingly, I pass the following :

The appeal is allowed is part. The appellant/claimant is entitled to enhanced compensation of Rs. 40,000/- with interest at 8% p.a. in addition to the compensation of Rs. 38,870/- awarded by the Tribunal.

Sri M. Sudarshan, learned counsel appearing for the second respondent is permitted to file vakalath, within a period of four weeks.