Fakirappa Vittal Mane vs Ramchandra S. Nilaraddi and Others

B. Veerappa, J.—1. This is a claimant''s appeal for enhancement against the judgment and award dated 13.08.2010 passed in MVC No. 2402/2010, on the file of the Fast Track Court-III and Additional MACT, Belagavi (hereinafter referred to as ''the Tribunal'', for short), awarding a total compensation of Rs. 89,000/- with 8% interest from the date of petition till the date of realisation.

It is the case of the appellant/claimant before the Tribunal that on 4.12.2009, when the claimant came to Sureban village of Ramdurg taluk from his native place in order to catch bus to go to Naragund, he was proceeding towards bus stop by walk on the left side of Sureban Kittur Road. When he came near the spot of the accident, i.e., Pragati college, Higher primary school, Sureban at about 15.00 hours, the driver of the Jeep bearing No. MEC-0944 came in a very high speed and in a rash and negligent manner, so as to endanger human life and suddenly lost control over his vehicle and dashed to the petitioner and caused accident. Due to the said impact, the petitioner sustained severe injuries. It was further contended in the claim petition that the claimant suffered permanent physical disability and had spent huge amount towards medical expenses and also lost earning during treatment. It was claimed that, respondent Nos. 1 and 2 being the owner and insurer of the vehicle, they are jointly and severely liable to pay the compensation and sought for compensation of Rs. 5,00,000/- with interest.

The respondent No. 1 - owner of the vehicle has been placed ex-parte before the Tribunal. The 2nd respondent -Insurance Company filed the objections denying the entire averments made in the claim petition. It was contended by the Insurance Company that, without admitting the accident and involvement of the Jeep in the accident, the driver of the said vehicle was not holding a driving licence to drive the particular vehicle at the time of the accident. Hence, it was contended that the owner of the Jeep has violated the terms of the policy conditions by allowing the vehicle to be driven by an unlicenced driver, and hence the Insurance Company is not liable to pay the compensation to the claimant and sought for dismissal of the claim petition.

Based on the pleadings, the Tribunal framed the following issues:

"i. Whether the petitioner proves that he has sustained bodily injuries due to rash and negligent driving of the driver of the jeep bearing MEC-0944 as alleged in the petition?

ii. Whether the petitioner is entitled for compensation, if so, to what amount and from whom?

iii. What order and award?"

In order to substantiate his case, the claimant examined himself as PW1, examined the doctor as PW2 and produced the documents at Exs.P1 to P12. The respondents have not adduced any oral evidence, except producing Ex. R1 - Insurance Policy.

After considering the entire materials on record, the Tribunal, by its impugned judgment and award has allowed the claim petition in part granting a total compensation of Rs. 89,000/- with 8% interest from the date of petition till the date of realisation. Hence the present appeal is filed by the claimant seeking for enhancement of compensation.

Smt. Geeta K.M., learned Counsel for the appellant has contended that the Tribunal has taken the income of the claimant as Rs. 4,500/- per month, even though the claimant was earning more than Rs. 5,000/- per month. It is also contended that the compensation awarded towards pain and agony, nursing, attendant charges and conveyance are on the lower side. Therefore, she sought for enhancement of the compensation.

Per contra, Sri. A.G. Jadhav, learned Counsel for the respondent No. 2 - Insurance Company, sought to justify the impugned judgment and award passed by the Tribunal.

I have given my thoughtful consideration for the arguments advanced by the learned Counsel for both the parties and perused the entire material on record carefully.

It is admitted fact that the accident occurred on 04.12.2009 and the claimant has sustained grievous injuries like crushed injury over right toe on lateral aspect including nail and shat tissue and muscle, bony deep around 2.3 cm x 5 cm bleeding and other injuries, on account of rash and negligent driving of the driver of Jeep bearing No. MEC-0944. In order to establish his case, the claimant has examined himself as PW1 and examined the doctor as PW2. The doctor has stated on oath that, considering the clinical and radiological findings and after going through ALIMCO (manuals) the patient has got permanent physical disability amounting to 25% to right foot. The claimant has also produced the X-ray report issued by Dr. A.C. Shetti at Ex. P10, which reads as under:

"Bones distal to head right 1st metatarsal bone are missing.

Ex. P12 are the X-rays. Medical Bills and prescription slips also produced. In the evidence of PW1, he has stated that prior to the accident, he was hale, healthy, aged 35 years and doing agricultural work. Now he is unable to do agricultural work effectively and comfortably. Considering the age, occupation and medical evidence, I feel that the accidental injuries may affect to some extent in doing any work including agricultural work effectively and comfortably as he was doing earlier to the accident. Therefore, considering the nature of injuries, age, occupation and medical evidence, I feel that it is just and proper to assess the permanent physical disability to the whole body at 5%."

The accident took place on 04.12.2009. In the absence of any records produced by the claimant that he was earning more than Rs. 5,000/- per month, even taking into consideration the minimum income of a coolie during the relevant period as Rs. 200/- per day, the income of the claimant ought to have been more than Rs. 5,000/- per month. But the Tribunal has erred in taking the income of the claimant as only Rs. 4,500/- per month, which is on the lower side. Taking into consideration the law laid down by the Hon''ble Supreme Court in the case of Sarla Verma and Others v. Delhi Transport Corporation and Another , 2009 ACJ 1298), by applying the multiplier of 16, taking the income of the claimant as Rs. 5,000/- per month and disability of 8%, the loss of future earning comes to Rs. 76,800/-[5000x12x16x8% = Rs. 76,800/-]. The Tribunal has awarded Rs. 43,000/- towards loss of future earning. Hence the Insurance Company is liable to pay another Rs. 33,800/- towards loss of future earning.

Further, the claimant deposed in his evidence that he was hospitalised for a period of 16 days and he has spent about Rs. 15,000/- towards attendant and conveyance charges. Taking into consideration and injuries sustained by the claimant and the expenses incurred by him, another Rs. 5,000/- is granted to the claimant towards Nursing, attendant charges, extra nourishment and conveyance. The doctor, who was examined as PW2, has specifically stated that the accidental injuries may effect the claimant to some extent in doing any work including agricultural work effectively and comfortably as he was doing earlier to the accident. Taking into consideration the evidence adduced by the claimant - PW1 and the doctor - PW2 and considering the material documents, especially the wound certificate at Ex. P5 and the prescriptions issued by the doctor at Ex. P9, X-report at Ex. P10, disability certificate at Ex. P11 and X-ray films at Ex. P12, it is appropriate to grant another Rs. 5,000/- towards pain and agony.

Therefore, in all the appellant is entitled for an enhanced compensation of Rs. 43,800/- with interest at 8% p.a. from the date of petition till the date of reliasation.

In view of the aforesaid reasons, the appeal filed by the claimant is allowed in part. The impugned judgment and award dated 13.08.2012 passed by the Tribunal in MVC No. 2402/2010 is modified and the compensation is enhanced to a further sum of Rs. 43,800/- with interest at 8% p.a. from the date of petition till the date of realisation.

Ordered accordingly.