B.N.MALLIKARJUNA vs K.K.VIJAYAKUMAR & Anr

Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 18-12-2013 made in MVC No.550/2013 passed by the Motor Accident Claims Tribunal, Sakaleshpur (hereinafter referred to as "the Tribunal" for short) filed this appeal seeking enhancement of compensation.

The appellant filed a claim petition contending that on 15-11-2012, while he was proceeding in a Maruthi Car bearing Registration No.CKH-220 towards Hassan, near Nanjundappa Coffee Plantation, he stopped the vehicle to attend the nature call. At that time, a motorcycle bearing Registration No.KA-46/E-6372 ridden by its rider in a rash and negligent manner dashed against the claimant. Due to that, he has sustained grievous injuries to his right leg and other parts of the body. Immediately after the accident, he was shifted to Sharada Nursing Home, Hassan. He had taken treatment therein as inpatient for a period of 15 days. He has spent more than Rs.80,000/- towards medical expenditure. Prior to the accident he was earning a sum of Rs.15,000/- p.m., by doing business with agricultural work. In view of the injuries sustained, he has become permanently disabled to do any work and hence sought for compensation of Rs.6,00,000/-.

In response to the notice issued by the Tribunal, though the owner of the vehicle was served with notice, he remained unrepresented. The second respondent-insurance company filed written statement denying the entire averments made in the claim petition and also contended that the rider of the motorcycle was not having valid and effective driving license as on the date of accident. There is contributory negligence on the part of the claimant also. The compensation claimed is exorbitant and hence sought for dismissal of the claim petition.

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

The claimant in order to prove his case got examined himself as P.W.1, Dr.Sreeranga N., who treated the claimant and assessed the disability was examined as P.W.2 and got marked the documents as Ex.P1 to Ex.P23. On behalf of the insurance company, none of the witnesses were examined nor has any document been marked.

The Tribunal, after appreciating the oral and documentary evidence and taking into consideration the IMV report, spot mahazar, copy of the complaint and charge sheet held that the accident occurred due to the actionable negligence on the part of rider of the offending motorcycle and the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident the claimant has sustained fracture of tibia and fibula of the right leg; he has undergone surgery; at the time of accident, he was aged about 37 years. No document has been produced to show that he was earning a sum of Rs.15,000/- p.m. In view of that, the Tribunal had taken the income of the claimant as Rs.3,750/- p.m. Further, the doctor has assessed the disability to an extent of 26% to the right lower limb. The Tribunal, taking the income of the claimant as Rs.3,750/- p.m., disability to an extent of 15% and applying the multiplier 15 since the claimant was aged about 37 years as on the date of accident, awarded a sum of Rs.1,01,250/- towards future loss of income; Rs.20,000/- towards pain and suffering; Rs.9,000/- towards injuries he has sustained; Rs.3,000/- towards attendant charges and a sum of Rs.34,487/- towards medical expenditure. In all, the Tribunal has awarded compensation of Rs.1,67,737/- with interest at the rate of 6% p.a. Since the insurance policy was in force as on the date of accident, the liability was fastened on the insurance company to compensate the claimant. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has preferred this appeal.

Sri.Ningaraja M.N., learned counsel appearing for the appellant contended that the quantum of compensation awarded by the Tribunal is on the lower side. The income of Rs.3,750/- p.m., taken by the Tribunal to assess the future loss of income is very meager. The accident occurred in the year 2012, the Tribunal ought to have taken reasonable income while awarding compensation. Even the compensation awarded on other heads is also on the lower side, hence sought for enhancement of compensation.

On the other hand, Sri.Y.P.Venkatapathy, learned counsel appearing for Respondent No.2-insurance company argued in support of the judgment and award passed by the Tribunal and contended that the compensation awarded is just and fair 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, oral and documentary evidence adduced by the parties.

The only dispute in this appeal is with regard to quantum of compensation.

The main contention of the appellant is that the monthly income of Rs.3,750/- taken by the Tribunal is lower side. The accident is of the year 2012. Further, a sum of Rs.3,000/- awarded towards attendant charges; Rs.20,000/- towards pain and suffering is also on the lower side. On perusal of the judgment and award it is clear that in the accident, the claimant has sustained fracture of both the bones of right leg and the other injuries are simple in nature. He had taken treatment from 15-11-2012 to 21-11-2012, he has undergone surgery; interlocking nailing was also made. The doctor who treated the claimant in his evidence has clearly stated that in view of the injuries he has sustained the claimant has suffered disability to an extent of 26% to the right lower limb. While awarding compensation, the Tribunal ought to have taken 1/3rd of the disability assessed by the doctor, instead, the Tribunal has considered the disability to an extent of 15% which is contrary to law. Even though the monthly income of the claimant is reckoned at Rs.7,000/-, if the disability of 1/3rd is taken out of 26%, it would come to only 8% and the compensation awarded towards future loss of income would works out, more or less equal to the compensation awarded by the Tribunal. Further, the compensation awarded under other heads is just and fair compensation and does not warrant interference by this Court. The compensation awarded by the Tribunal for the fracture of tibia and fibula with interest at 6% p.a., is just and fair one. The appellant has not made out a case for enhancement of compensation. Accordingly, the appeal is dismissed.