Ganesh Kotian vs Prasad and Others

N.K. Patil, J.—This appeal by the claimant is arising out of the impugned judgment and award dated 03.02.2012 passed in MVC No. 20/2009 on the file of the Principal Senior Civil Judge & Addl. Motor Accident Claims Tribunal, Udupi, (hereinafter referred to as Tribunal'' for short).

The Tribunal by its judgment and award, awarded a sum of Rs. 1,33,270/- with interest at 8% p.a., from the date of petition till its realization as against the claim made by the claimant on account of injuries sustained by him in the road traffic accident.

It is case of the claimant that, he was aged about 35 years as on the date of accident. He was hale and healthy prior to the accident and was a tailor by profession. On 29.08.2008 at about 8.00 p.m., the claimant being a pillion rider on a motor bike bearing Registration No. KA-20-L-9281 came from Mulki towards Padubidri side. When the rider of the said bike Premanath reached near Mahalingeshwara Temple Dwara of Shivanagar, an auto-rickshaw bearing Registration No. KA-20-7214 came from Padubidri side towards Mulki in a rash and negligent manner, proceeding on the western portion of NH-17 instead of Eastern Portion and dashed against the motor bike on the western portion of NH-17 and due to the said impact, claimant and the rider sustained grievous injuries. The claimant was shifted to A.J. Hospital, Mangalore and was admitted as an inpatient. He contended that, he was earning more than Rs. 6,000/- per month. Due to the injuries sustained by him, he is unable to do any work and carry on his business as before and he had undergone treatment in A.J. Hospital, Mangalore. Further, Dr. Sudheer Hegde, Professor & H.O.D. Department of Ophthalmology, Mangalore who has examined the claimant has issued Ex. P10-disability certificate which indicates that the claimant was inpatient from 29.08.2008 to 06.09.2008 and he has been diagnosed with right eye traumatic optic neuropathy with Lagophthalmos with disability of 40% and there is loss of vision to his right eye.

It is case of the claimant that, he spent huge amount for treatment, conveyance, nourishing food and attendant charges and follow-up treatment regularly as per the doctor''s advice and has to undergo one more surgery, which requires some amount towards medical and incidental expenses. Taking all these factors, he filed a claim petition under Section 166 of MVC Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 1,33,270/- as compensation under different heads with interest at 8% p.a., from the date of petition till the date of deposit of the amount and directed respondent No. 1 to indemnify the compensation amount with interest. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has presented this appeal seeking enhancement of compensation.

Heard learned Counsel appearing for the appellant/claimant and learned counsel appearing for respondent No. 2. Respondent No. 1/owner on whom liability has been fastened has been served and unrepresented.

The submission of the learned Counsel for the appellant/claimant at the outset is that, the Tribunal has erred in assessing the income of the claimant at only Rs. 4,000/- per month. He was aged about 35 years and working as a tailor. He met with an accident on 29.08.2008 and sustained grievous injuries. The income of the appellant may be re-assessed and the compensation be redetermined. Further, he submits that, the Tribunal has awarded lesser compensation towards loss of income during laid up period, conveyance, nourishing, food and attendant charges. Therefore, he submits that, under these heads also, reasonable enhancement may be made by modifying the impugned judgment and award passed by Tribunal.

Per contra, the learned Counsel appearing for respondent No. 2, inter alia, contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on record. She further submits that, the liability has been fastened on respondent No. 1/owner of the auto rickshaw on the ground that the vehicle was not insured and the driver of the auto rickshaw did not possess any effective driving license as on the date of the accident. Therefore, insurer is not entitled to pay compensation and the Tribunal has rightly fixed the liability on respondent No. 1/owner. Therefore interference by this Court is not called for.

After careful consideration of the submissions made by the learned Counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

The occurrence of the accident in a road traffic accident is not in dispute. The claimant was aged 35 years and hale and healthy at the time of accident. Be that as it may, he met with an accident on 29.08.2008 and sustained injuries to his right eye on account of which he has undergone treatment for 9 days in hospital. The disability certificate issued by the doctor indicates that the claimant has suffered right eye traumatic optic neuropathy with Lagophthalmos and has assessed the disability at 40% and the claimant has lost vision of his right eye. It is the further case of the claimant that, he has spent reasonable amounts towards medical expenses. The Tribunal has also erred in not assessing reasonable monthly income of the claimant.

Taking into consideration the year of accident, age and avocation of the claimant, nature of injuries sustained, the Tribunal after appreciation of the oral and documentary evidence available on record, is justified in awarding compensation Rs. 30,000/- towards ''pain and sufferings'', Rs. 59,270/- towards ''medical expenses'' as per medical bills and the same does not call for interference by this Court.

It is not in dispute that on account of grievous injuries sustained in the road traffic accident, the claimant has undergone treatment for a period of 9 days in the hospital. The year of the accident is 2008. Having regard to the nature of injuries sustained, avocation, age and the duration of treatment, I deem it fit to reassess the income at Rs. 4,500/- per month, to meet the ends of justice. Accordingly, a sum of Rs. 13,500/- (Rs. 4,500/- x 3) is awarded towards ''loss of income during treatment'' as against Rs. 12,000/- awarded by the Tribunal.

Considering his age as 35 years and year of accident as 2008 and also the fact that the claimant might have spent some amount towards conveyance, nourishing, food and attendant charges and has to suffer future discomfort, unhappiness, I deem it fit to award a sum of Rs. 75,000/- towards ''loss of amenities'' as against Rs. 25,000/- and Rs. 10,000/- towards ''conveyance, nourishing, food and attendant charges'' as against Rs. 7,000/- awarded by the Tribunal.

Having regard to the facts and circumstances of the case as stated above, the instant appeal filed by the claimant is allowed in part. The impugned judgment and award dated 03.02.2012 passed by the Tribunal in MVC No. 20/2009 is hereby modified. The total compensation payable comes to Rs. 1,87,770/- with 8% interest per annum as against Rs. 1,33,270/- awarded by the Tribunal and the break- up is as follows:

The claimant is entitled for additional compensation of Rs. 54,500/- with interest at 8% per annum from the date of claim petition till the date of realization.

Respondent No. 1/owner shall indemnify the claimant by depositing the additional compensation with interest at 8% p.a., within three weeks from the date of receipt of a copy of this judgment. Upon such deposit, the same shall be released in favour of the claimant.

Draw up the award accordingly.