C.K. Shivanna vs Mubashahira Jabin

A.S. Pachhapure

The appellant dissatisfied with the amount of compensation awarded by the Tribunal for the injury sustained in the motor accident has filed this appeal seeking enhancement. The facts reveal that on 3.12.2009 at about 3.30 p.m. the appellant was standing infront of Taluk Office on the left side of NH. 48 road. At that time, an auto rickshaw bearing Reg. No. KA-06-B-6466 driven in a rash and negligent manner cams and bit the appellant and thereby, he sustained the fracture of right clavicle and also fracture of right hummers in addition to other two simple injuries. He was treated in a hospital and he suffered disability, hence claimed compensation. After recording the evidence the Tribunal held actionable negligence on the part of driver of the auto and granted compensation of Rs. 1,14,300/- with interest at 6% p.a. Dissatisfied with the amount of compensation awarded, the present appeal a filed.

I have heard the learned counsel for both the parties,

The point that arises for my consideration is:

Whether the appellant a (sic)titled to the enhanced compensation? If so, to what extent?

As there is no appeal by the respondent, the finding of actionable negligence has attained finality. The tribunal having considered the fracture of right clavicle and fracture of right humans lateral 1/3rd clavicle with other two other injuries has granted compensation of Rs. 43,000/- towards pain, suffering and mental agony. The amount awarded is Just and reasonable. Even towards medical expenses it has considered Ex.P.13 and Ex.P.11 and rightly granted a sum of Rs. 16,500/- towards medical expenses. Towards special diet, transportation etc., it has granted a sum of Rs. 10,000/-, which appears to be just and reasonable.

So far at the disability is concerned, the appellant has examined PW.2 - the Doctor, who has assessed the disability to an extent of 80% of both the fractures and 20% permanent disability to the whole body. The Tribunal has accepted the same to consider the grant of compensation towards lose of earning capacity. So far as the assessment of income is concerned, the tribunal has considered the incomes of the appellant at Rs. 3,000/-per month. But as the accident of the year 2009, I think it would be Just and proper to consider the income of the appellant at Rs. 4;000/- per month. Thereby, the future loss of income would be as under;

= Rs. 4,000/- x 12 x 9 = 20/100 - Rs. 64,800/-

Thereby additional sum of Rs. 21,600/- has to be awarded.

Further the appellant is entitled to an additional sum of Rs. 5,000/- towards loss of income during the period of treatment and another sum of Rs. 5,000/-towards loss of amenities. Thereby, in addition to the compensation awarded, the appellant is entitled to a sum of Rs. 31,600/- (rounded off to) with interest at 6% per annum. Hence, I answer the point in the affirmatives and proceed to pass the following:-

ORDER

The appeal is allowed in part In addition to the compensation of Rs. 1,40,300/- with interest at 5% per annum, the appellant is entitled to a sum of Rs. 31,600/-with interest at 6% per annum Cram the date of petition till its payment.

The appellant is permitted to withdraw the amount enhanced on deposit.

ASP J:

23.01.2012

ORDER ON "BEING SPOKEN TO"

Heard. The 2nd respondent-New India Assurance Co., Ltd., B.H. Road, Tumkur-572 102 appeared in the cause title of the appeal memorandum be shown as the 2nd respondent in the cause title of the Judgment and Order dated 05.01.2012 and the office is directed to issue corrected copy of the Judgment and Order.