Dundayya vs Ladasa Gaibusa Makandar and Others

P.D. Waingankar, J—Dissatisfied with the quantum of compensation awarded by the tribunal in MVC No. 1641/2008 on the file of the MACT-IV, Bijapur by judgment and award dated 31.01.2012, this appeal is preferred by the claimant.

On 03.05.2008 the claimant was travelling in a tum-tum vehicle bearing registration No. KA-28/A-192. At that time, another tum-tum vehicle bearing registration No. KA-28/A-1599 came from opposite direction in a rash and negligent manner and dashed against the tum-tum in which the claimant was travelling. As a result of the accident he sustained severe injuries. He was treated as in-patient on four occasions in different hospitals. He underwent surgeries. Even after the best treatment at Solapur, he suffered disability. Therefore, claming compensation he filed a claim petition under Section 166 of M.V. Act, against the owner and insurer of the tum-tum vehicle bearing registration No. KA-28/A-1599.

The claim petition was contested by the respondent-New India Assurance Company Limited, the insurer of the offending vehicle. The claims tribunal on appreciation of the evidence while recording a finding as to the negligence of the driver of the tum-tum vehicle, awarded compensation under the following heads;

Thus the tribunal has awarded a total compensation of Rs. 1,82,200/-. Hence, this appeal by the claimant.

I have heard both the learned counsel appearing for the appellant/claimant and the respondent-insurance company. Perused the records.

Learned counsel for the appellant would submit that having regard to the nature of injuries, nature of treatment, period of hospitalization, the compensation awarded by the tribunal under all the heads is on the lower side and it requires to be enhanced considerably.

The counsel for the respondent-insurance company on the other hand has submitted in justification of the award passed by the tribunal.

The medical records disclose that the claimant sustained compound fracture of right patella, comminuted fracture of lower end right femur, supra-condylar fracture right femur involving articular surface. It is also borne out from the records that he underwent surgery for the fracture of femur. He was admitted in the hospital on four different occasions i.e. from 03.05.2008 to 19.05.2008, from 24.06.2008 to 25.06.2008, from 30.10.2008 to 16.10.2008 and from 09.05.2010 to 10.05.2010. He was treated by illizarao ring and external fixator. The tribunal has awarded a paltry sum of Rs. 15,000/- under the head injury, pain and suffering. Having regard to the gravity of the injuries, the nature of treatment, period of hospitalization, I deem it just and proper to award a sum of Rs. 50,000/- under the head injury, pain and suffering as against Rs. 15,000/- awarded by the tribunal.

The tribunal has awarded a sum of Rs. 5,000/- towards attendant and conveyance charges, which is on the lower side. The claimant was treated as in-patient on different occasions for a period of 25 days. The fact that illizaro ring and external fixator was fixed itself goes to show that he was made lie down for a prolonged period of time. During the said period he was in need of service of an attendant. As such he has been awarded a sum of Rs. 18,000/- towards attendant charges @ Rs. 100 per day for a period of six months. The medical records disclose that he was admitted on four different occasions in two hospitals Solapur and Bijapur. Since he had comminuted fracture of knee-cap of the supra-condylar, fracture of femur, service of a special vehicle was indispensable for him at all time during his hospitalization and discharge. Though he has not produced the vouchers or the bills for having spent the money towards the conveyance, taking pragmatic view he has been awarded a sum of Rs. 10,000/- towards conveyance charges. The claimant did produce the medical bills worth Rs. 1,74,102/-. The tribunal has awarded a sum of Rs. 82,400/-. The reason given by the tribunal for rejection of remaining claim is not satisfactory and acceptable having regard to the injury suffered by the claimant. The in-patient bill of the hospital comes to Rs. 1,25,000/- and the remaining amount is in respect of the amount spent by the claimant towards purchase of medicine. As such the claimant is entitled for a sum of Rs. 1,74,102/- towards medical expenses as against Rs. 82,400/- awarded by the tribunal.

The amount of Rs. 10,000/- awarded by the tribunal towards loss of amenities is also on the lower side. It would be just and proper to award a sum of Rs. 30,000/- under the head loss of amenities as against Rs. 10,000/- awarded by the tribunal.

Further, the tribunal has awarded a sum of Rs. 5,000/- towards loss of income during the laid up period on account of accidental injury. The claimant has been incapacitated from attending to his work at least for a period of six months and thereby he lost his income for a period of six months. Since the accident occurred in the year 2008 and it is stated that the claimant was working as a driver, I deem it just and proper on my part to take his monthly income @ Rs. 4,250/-. The loss of income during the period of treatment for a period of six months comes to Rs. 25,500/-. So, an amount of Rs. 25,500/- is awarded towards loss of income during the laid up period as against Rs. 5,000/- awarded by the tribunal.

The tribunal has awarded a sum of Rs. 64,800/- towards loss of future income on account of disability by taking income of the claimant as Rs. 3,000/- per month and disability to the whole body as 10%. The evidence of Dr. A.A. Magi/PW.2 would go to show that he suffered disability by 45% to 50% of that particular limb. Dr. A.A. Magi is not the doctor who treated him. No much evidentiary value can be given to the evidence of doctor Magi. The fact remains that the claimant suffered comminuted fracture of lower end right femur, supra-condylar fracture right femur, for which he was treated for a prolonged period of time. Taking into consideration all these aspects, it would be appropriate to take the disability of the whole body as 15%. In that case the loss of future income on account of disability would comes to Rs. 1,37,700/- (Rs. 637.5 x 12 x 18). Therefore, an amount of Rs. 1,37,700/- is awarded towards the loss of future income as against Rs. 64,800/- awarded by the tribunal.

Thus, the claimant is held to be entitled for compensation under various heads as under:

Thus, the claimant has been held to be entitled for a compensation of Rs. 4,45,302/- as against Rs. 1,82,000/- awarded by the tribunal. There shall be enhancement of Rs. 2,63,302.

Accordingly, I pass the following:

ORDER

The appeal is partly allowed. The judgment and award dated 31.01.2012 in MVC No. 1641/2008 on the file of the Motor Accident Claims Tribunal-IV Bijapur stands modified.

The appellant/claimant has been awarded enhanced compensation of Rs. 2,63,302/- together with 6% thereon over and above the compensation awarded by the Tribunal from the date of petition till the date of realization.

The respondent- Insurance Company is directed to deposit the enhanced compensation of Rs. 2,63,302/- together with interest within a period of two months from the date of receipt of a copy of the order.

In the event of deposit, 50% of the enhanced compensation with proportionate interest shall be invested in the name of the claimant in fixed deposit in any nationalized bank for a period of five years of his choice and the balance amount with proportionate interest shall be released to the claimant.