Devaraj S/o Gurulingappa vs Siddappa s/o Mallikarjun & Anr.

These appeals have been preferred by the appellants - claimants seeking enhancement of compensation awarded by I Addl. Senior Civil Judge & MACT Kalaburagi by a common award in MVC Nos.1172/2012 and 1173/2012 by order dated : 15.05.2015.

Heard. Appeals are admitted. With consent of learned counsels for the parties, they are taken up for final disposal.

The brief matrix of the case as per the petitioners are that, on 11.8.2012 at about 12.30 p.m., both the petitioners were returning by walk from Government Hostel, Gundgurti towards their house, at that time, a Tum Tum vehicle bearing Regn.No.KA.32/A-7287 came from Gulbarga side with high speed, rashly and negligently and dashed to the petitioners, who were proceeding on the proper side of the road, as a result of the said accident, both of them fell down and sustained grievous injuries. Immediately the injured were shifted to Basaveshwara Hospital, Gulbarga and thereafter they were treated as inpatient. A criminal case was registered against the driver of the said Tum Tum vehicle in Crime No.62/2012. For the purpose of claiming the compensation, the claim petitions were came to be filed.

After issuance of notice, the respondent nos.1 and 2 appeared and they filed their objections by denying the contents of the petition. The respondent no.1 contended that, the offending vehicle is insured with respondent no.2 and the policy was in force and there is no violation of the terms and conditions of the policy and the driver is also having a valid and effective driving license and as such the respondent no.2 is vicariously liable to pay the compensation.

The respondent no.2 also filed objections contending that, the driver was not holding any valid and effective driving license and that there was a breach of conditions of the policy and as such he is not liable to pay any compensation. He prays to dismiss the petition.

On the basis of the pleadings, the tribunal framed the following issues :- IN MVC NO.1172/2012

1) Whether the petitioner proves that on 11.8.2012 about 12.30 p.m., while the petitioner with his friend Devaraj were returning by walk from Government Hostel, Gundgurthi towards their house, by the proper left side of the road, near Gundgurthi Cross, on Gulbarga ? Sedam main road, at that time one Tom Tom bearing No.KA.32/A- 7287, being driven by its driver, came from Gulbarga side with high speed, rash and negligent manner, due to which its driver having lost control over it and violently dashed the said vehicle of petitioner and his said friend Devaraj, as a result both of them fell down on ground and sustained grievous injuries ?

2) Whether the respondent no.2 proves that, the Tom Tom bearing No.KA.32/A-7287 was not holding valid and effective D.L., on the date of accident ?

3) Whether the petitioner is entitled for the compensation ? If so, what amount and from whom ?

4) What Award or Order ? IN MVC NO.1173/2012

1) Whether the petitioner proves that on 11.8.2012 about 12.30 p.m., while the petitioner with his friend Mapanna were returning by walk from Government Hostel, Gundgurthi towards their house, by the proper left side of the road, near Gundgurthi Cross, on Gulbarga ? Sedam main road, at that time one Tom Tom bearing No.KA.32/A- 7287, being driven by its driver, came from Gulbarga side, with high speed, rash and negligent manner, due to which, its driver having lost control over it and violently dashed the said vehicle of petitioner and his said friend, as a result both of them fell down on ground and sustained grievous injuries ? 2) Whether the respondent no.2 proves that, the Tom Tom bearing No.KA.32/A-7287 was not holding valid and effective D.L., on the date of accident ?

3) Whether the petitioner is entitled for the compensation ? If so, what amount and from whom ?

4) What Award or Order ?

In order to prove the case, claimant in MVC No.1172/2012, the father of the minor claimant was came to be examined as P.W.1 and also got marked Ex.P-1 to 13. The father of the claimant in MVC No.1173/2012 is also examined as P.W.2 and got marked Ex.P-14 to Ex.P-24. The said claimants have got examined the same doctor as P.W.3 and 4. On behalf of the respondents, they have not led any evidence. But, however, they got marked the policy as Ex.R-1.

After considering the evidence and material on record, the tribunal answered Issue No.1 in the affirmative, issue no.2 in the negative and awarded compensation of Rs.1,19,774/- in favour of the claimant of MVC No.1172/2012 and Rs.1,33,202/- in favour of the claimant of MVC No.1173/2012 with interest at 6%. Assailing the said judgment and award, the claimants are before this Court.

The learned counsel for the appellants submits that though the claimants have sustained grievous injuries and the Doctor who has examined P.Ws.1 and 2 has deposed that P.W.1 has sustained 42% disability and P.W.2 has sustained 38% disability to the whole body. But, the tribunal only by assessing the disability at 14% and 13% respectively, has awarded the compensation, which is on lower side. She also further contend that, even the tribunal while awarding the compensation on other heads has not properly awarded and the compensation under those heads and it is on the lower side. On these grounds, she prays for allowing the appeals by enhancing the compensation.

Per contra, learned counsel appearing for the respondent-insurance company vehemently argued and contend that, the tribunal after considering the fact that the Doctor who has been examined before the Court as P.W.3 and 4, is not a treated Doctor and that the percentage of disability assessed is exorbitant and as such the tribunal by taking into consideration 1/3rd of the disability to the whole body and by taking into consideration that the claimants were minor, has rightly awarded the compensation. He would also further contend that, the compensation awarded under the other heads is also just and reasonable and as such he prays for dismissal of the petition.

The accident in question is not in dispute, so also, the involvement of the offending vehicle insured with the respondent-insurance company. As could be seen from the judgment and award of the Tribunal, the Tribunal in the case of MVC No.1172/2012 has observed that the petitioner therein has sustained small subdural hemorrhage in right parieto occipital region and considering the nature of the injuries, the tribunal awarded the compensation under the following heads :-

1 Towards pain and suffering Rs 25,000-00

2 Towards loss of amenities and enjoyment in life. Rs 20,000-00

3 Towards loss of future income Rs 63,000-00

4 Towards medical expenses and incidental charges Rs 10,274-00

5 Towards attendant''s charges, food, nourishment and conveyance expenses Rs 01,500-00

Total Rs 1,19,774-00

As could be seen from the record, the claimant in MVC No.1172/2012 has produced the wound certificate at Ex.P-6 and the disability certificate at Ex.P-9 and they have got examined Doctor as P.W.3 and the said Doctor has deposed that, the claimant has suffered 42% disability to the whole body. But, the said Doctor has not specifically stated how and what method has been adopted for the purpose of assessing the disability and even the injury by itself does not notice that the claimant ? appellant has sustained any disability in this behalf. But, however, the tribunal by taking into consideration, 14% disability to the whole body as the claimant is of 11 years of age and was a student and might have suffered, by taking into consideration the notional income at the rate of Rs.30,000/- per annum has awarded an amount of Rs.63,000/- for loss of future earning. The said assessment appears to be just and proper and as such it need not be disturbed. Insofar as the compensation awarded under other heads appears to be on the lower side and it requires to be re-assessed. In the light of the re-assessment, the compensation shall be as under :-

1 Towards pain and suffering Rs 40,000-00

2 Towards loss of amenities and enjoyment in life. Rs 40,000-00

3 Towards loss of future income Rs 58,500-00

4 Towards medical expenses and incidental charges Rs 10,274-00

5 Towards attendant''s charges, food, nourishment and conveyance expenses Rs 25,000-00

Total Rs 1,78,274-00

As could be seen from the judgment and award of the Tribunal, in the case of MVC No.1173/2012 it has observed that the petitioner therein has sustained contusion with thigh and swelling over occipital region and considering the nature of the injuries, the tribunal awarded the compensation under the following heads :-

1 Towards pain and suffering Rs 25,000-00

2 Towards loss of amenities and enjoyment in life. Rs 20,000-00

3 Towards loss of future income Rs 58,400-00

4 Towards medical expenses and incidental charges Rs 27,202-00

5 Towards attendant''s charges, food, nourishment and conveyance expenses Rs 02,500-00

Total Rs 1,33,202-00

The claimant in MVC No.1173/2012 has produced the wound certificate at Ex.P-14 and the disability certificate at Ex.P-19 and they have got examined Doctor as P.W.4 and the said Doctor has deposed that the claimant has suffered 38% disability to the whole body. But, the said Doctor has not specifically stated how and what method has been adopted for the purpose of assessing the disability and even the injury by itself does not notice that the claimant ? appellant has sustained any disability in this behalf. But, however, the tribunal by taking into consideration, 13% disability to the whole body as the claimant is of 11 years of age and was a student might have suffered, by taking into consideration the notional income at the rate of Rs.30,000/- per annum has awarded an amount of Rs.58,500/- for loss of future earning. The said assessment appears to be just and proper and as such it need not be disturbed. Insofar as the compensation awarded under other heads appears to be on the lower side and it requires to be re-assessed. In the light of the re-assessment, the compensation shall be as under :-

1 Towards pain and suffering Rs 40,000-00

2 Towards loss of amenities and enjoyment in life. Rs 40,000-00

3 Towards loss of future income Rs 58,500-00

4 Towards medical expenses and incidental charges Rs 27,202-00

5 Towards attendant''s charges, food, nourishment and conveyance expenses Rs 25,000-00

Total Rs 1,90,702-00

Since the Tribunal has awarded Rs.1,19,774/- after deducting the same, the claimant/appellant in MVC No.1172/2012 is entitled to an additional compensation of Rs.58,500/- with interest at 6% per annum. Likewise, Tribunal has awarded Rs.1,33,202/- after deducting the same, the claimant/appellant in MVC No.1173/2012 is entitled to an additional compensation of Rs.57,500/- with interest at 6% per annum.

Accordingly, both the appeals are allowed in part. The judgment and award passed by the Tribunal in MVC Nos.1172/2012 & 1173/2012 are modified as stated above.

The respondent-insurance company is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court within six weeks from the date of receipt of a copy of this judgment. On deposit, said amount shall be deposited in the nationalized bank, till the claimants - appellants attains the age of majority.

The Registry is directed to draw the award accordingly.