Doreswamy vs M. Prakash Rao and Others

B. Manohar, J.—Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 19th August, 2010 made in MVC No. 151/2007 by the Senior Civil Judge and 12th Additional Motor Accidents Claims Tribunal, Bhadravathi (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 7-2-2007, while he was proceeding towards Hosanagar in Guru Shakthi Bus bearing registration No. KA-20/AA-66, due to the rash and negligent driving of the bus by the second respondent, it dashed against the Canter bearing registration No. KA- 12/6763 near Suduru Forest Gate. As a result of which, the claimant sustained grievous injuries. Immediately after the accident, the claimant was taken to the Government Hospital at Rippenpete and after the First Aid treatment, he was shifted to Mc.Gan Hospital, Shivamogga. Subsequently, on the advice of the doctor, he was shifted to Nanjappa Hospital at Shivamogga and thereafter he was shifted to Kasturba Hospital, Manipal for better treatment.

In the claim petition it was contended that the claimant has sustained fracture of Spinal cord, grievous injuries on forehead, right knee and left shoulder. He underwent surgery and had taken treatment as inpatient in various hospitals for more than 35 days. He had spent more than Rs. 1,50,000/- towards his treatment. He was working as a Bill Collector in CMC, Bhadravathi. In view of the accident and the injuries sustained, he is unable to discharge his duties properly. Hence, he sought for compensation of Rs. 8,80,000/-.

Though respondents 1 and 2 who are the driver and owner of the offending vehicle were served with notice, they remained unrepresented. The 3rd respondent/Insurance Company filed the statement of objections denying the entire averments made in the claim petition. They also contended that due to the collision of two vehicles, the accident had occurred and there is contributory negligence on the part of the drivers of both the vehicles. Further, the driver of the offending bus did not possess the effective driving license as on the date of the accident. Hence, the Insurer is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the Tribunal has framed necessary issues. In order to prove his case, the claimant got examined himself as P.W.1 and got marked the documents as Ex. P1 to Ex. P24. The doctor who treated the claimant was examined as C.W.1 and got marked the documents as Ex. C1 and Ex. C2. The 3rd respondent did not lead any oral evidence, however, the insurance policy was marked as Ex. R1 with the consent of the parties.

On the basis of the oral and documentary evidence let in by the parties and taking into consideration the copy of mahazar, IMV report, charge sheet and other relevant records, the Tribunal held that due to the rash and negligent driving of the bus, the accident had occurred and the accident is not head-on collision. The bus dashed the Canter from hind side due to the rash and negligent driving of the driver of the bus. Hence, there is no contributory negligence on the part of the driver of the Canter rather the negligence is on the part of the driver of the offending bus. Hence, the claimant is entitled for compensation.

With regard to quantum of compensation is concerned, in the accident the claimant has sustained fracture of cervical spine and grievous injuries on the forehead, right knee and left shoulder. Except the injury to cervical spine, other injuries are simple in nature. Even after the accident, the claimant continued in the same job and getting higher salary. Though the claimant had produced the medical bills to an extent of Rs. 1,38,174.13, it includes the expenses towards food, transport charges and also purchase of insulin for his diabetic disease. In view of that, the Tribunal after deducting that amount, awarded a sum of Rs. 53,200/- towards medical expenses as per the bills. Further, the Tribunal awarded a sum of Rs. 15,000/- towards pain and sufferings; Rs. 43,231/- towards traveling expenses; Rs. 3,500/- towards attendant charges; Rs. 3,500/- towards Diet and Nutrition Food; Rs. 10,000/- towards loss of amenities of life and Rs. 7,218/- towards loss of income as a result of availing leave. In all, the claimant was awarded compensation in a sum of Rs. 1,34,749/- with interest at 6% p.a. from the date of deposit. Being dissatisfied with the quantum of compensation, the appellant has filed this appeal.

Sri. N. Prakash, learned counsel appearing for the appellant contended that in the accident, the claimant has sustained injuries to cervical spine and other injuries. He had taken treatment in four hospitals and thereafter he had taken treatment in Kasturba Hospital at Manipal for the injuries he has sustained. A sum of Rs. 15,000/- awarded towards pain and sufferings and Rs. 10,000/- towards loss of amenities of life in the absence of awarding future loss of income is on the lower side. Further, he had to visit the hospital from Shivamogga to Udupi. A sum of Rs. 3,500/- awarded towards attendant charges and Rs. 3,500/- towards diet and nutrition food is also on the lower side and require to be enhanced. Hence, sought for allowing the appeal.

On the other hand, Sri. R. Gunashekar, learned counsel appearing for Respondent No. 3 argued in support of the judgment and award passed by the Tribunal and contended that the compensation awarded is 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 impugned judgment and award and oral and documentary evidence available on record.

The records clearly disclose that due to the actionable negligence on the part of the driver of the offending bus, the claimant has sustained injuries in the road traffic accident occurred on 07-02-2007. He has sustained injury to cervical spine, injuries on the forehead, right knee and other parts of the body. Initially he had taken treatment at Government Hospital at Rippenpete, thereafter he was shifted to Mc.Gan hospital at Shivamogga. Subsequently on the advice of the doctor, he was shifted to Nanjappa Hospital at Shivamogga and in order to take specialized treatment for cervical spine, he was shifted to Kasturba hospital at Manipal. He was inpatient for a period of 35 days. A sum of Rs. 15,000/- awarded towards pain and suffering is on the lower side. Taking into consideration the injuries sustained and that he was inpatient in the hospital for more than 35 days, the claimant is entitled for another sum of Rs. 20,000/- towards pain and sufferings. Further, no compensation has been awarded towards future loss of income on the ground that the claimant was continued in the same job. However, he has to lead his remaining life with the 10% disability as assessed by the doctor. Hence, he is entitled for another a sum of Rs. 30,000/- towards loss of amenities. Further, he is entitled to another sum of Rs. 10,000/- each towards attendant charges and diet and nutrition food. In all, the claimant is entitled to enhanced compensation of Rs. 70,000/- with interest at the rate of 6% p.a. Accordingly, I pass the following:

"ORDER

The appeal is allowed in part. The judgment and award dated 19th August, 2010 made in MVC No. 151/2007 passed by the Tribunal is modified. The claimant is entitled to enhanced compensation of Rs. 70,000/- with interest at the rate of 6% p.a."