Hanmanthrao vs Shantangouda and Others

B. Manohar, J.—1. Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 04.10.2011 passed in MVC No. 1077/2008 by the Prl. Senior Civil Judge and MACT, Gulbarga (hereinafter referred to as ''Tribunal'') and also fastening of the liability on the owner of the offending vehicle to compensate the claimant, has filed this appeal.

The appellant herein filed a claim petition contending that on 12.10.2007 at about 2.15 p.m. when the claimant along with his wife was proceeding on a motorbike bearing registration No. KA-25/3355 from Afzalpur to their native place Revoor-B, on Revoor-Mallabadi road, a motorcycle bearing registration No. KA-28/R-3669 ridden by its rider in a rash and negligent manner dashed against his motorbike. Due to the said impact, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to the General Hospital at Revoor-B village and thereafter, he was shifted to Ashwini Hospital at Solapur, wherein he took treatment as an inpatient from 12.10.2007 to 22.10.2007. The claimant claimed that he has spent huge money for the treatment and sought for compensation of Rs. 21,05,000/-.

In pursuance of the notice issued by the Tribunal, the 1st respondent - owner of the offending vehicle filed the written statement, denying the rash and negligent riding of the Honda Shine motorbike. He contended that the vehicle is covered by the insurance policy and the rider of the motorbike is having valid and effective driving license. Hence, sought for dismissal of the claim petition as against the 1st respondent.

Respondent No. 2 - insurance company also filed written statement, denying the entire averments made in the claim petition and also contended that initially the complaint was lodged against the rider of the motorbike one Dr. M.B. Patil. In the FIR also, his name was shown. However, in the charge sheet, the name of Dr. M.B. Patil was deleted and the name of Shamrao S/o Sidramappa Chincholi was inserted, since the said Dr. M.B. Patil was not having driving license. Hence, the name of Dr. M.B. Patil was replaced by Shamrao, in order to get the compensation from the insurance company. Hence, sought for dismissal of the claim petition as against the 2nd respondent.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues.

The claimant, in order to prove his case has examined himself as P.W. 1 and got marked the documents as Exs. P1 to P75. The doctor, who treated him was examined as P.W. 2. On behalf of the respondents, the 2nd respondent has examined three witnesses as R.W. 1 to R.W. 3 and the insurance policy was marked as Ex. R1.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration the police records, held that due to the negligence on the part of the rider of the motorbike bearing registration No. KA-28/R-3669, the accident had occurred. There is actionable negligence on the part of the rider of the said motorbike. Hence, the claimant is entitled for compensation.

With regard to the liability to compensate the claimant is concerned, initially the complaint was lodged against the rider of the offending vehicle one Dr. M.B. Patil, who was an Ayurvedic doctor of Madyal village. In the FIR also, his name has been shown. However, while filing the charge sheet, his name has been replaced and the name of Shamrao S/o Sidramappa Chincholi was included. The said Shamrao was not a rider of the motorbike as on the date of the accident. On verification of the record, it was found that Dr. M.B. Patil do not possess driving license as on the date of the accident and his driving licence has been lapsed long back. The insurer is not liable to compensate the claimant, since the owner of the vehicle entrusted the offending vehicle to an unauthorized person, who does not hold effective licence. Hence, the Tribunal has fastened the liability on the owner of the offending vehicle to compensate the claimant.

With regard to quantum of compensation is concerned, at the time of accident, the claimant was aged about 67 years. He has sustained the fracture of radium of mid shaft of right side and 2nd and 3rd metacarpal bone, fracture of right hand and fracture of lateral wall of orbit. He was an inpatient for a period of ten days. He has spent more than Rs. 40,000/- towards treatment. Though the claimant claimed that he owns agricultural land and earns more than Rs. 3,00,000/- per annum, no document has been produced to substantiate the same. Except Ex. P70, the RTC extracts of other properties do not stand in the name of the claimant. The Tribunal taking into consideration the income of the claimant as Rs. 4,000/- p.m. and also considering the disability to an extent of 10% to the whole body, though the doctor has assessed the disability to an extent of 20% to the whole body and applying the multiplier of 5, has awarded a sum of Rs. 24,000/- towards future loss of earning, Rs. 25,000/- towards pain and suffering, Rs. 40,000/- towards medical expenses, Rs. 5,000/- towards attendant, nursing, extra nourishment and conveyance, Rs. 1,500/- towards loss of income during the laid up period and Rs. 10,000/- towards loss of amenities. In all, the Tribunal has awarded a sum of Rs. 1,05,500/- with interest at 6% p.a. Being not satisfied with the said compensation, the claimant has filed this appeal.

I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and award passed by the Tribunal and oral and documentary evidence adduced by the parties.

The records clearly disclose that on the date of the accident, one Dr. M.B. Patil was riding the motorbike. In the complaint, his name was mentioned and in the FIR also his name was shown. However, in the charge sheet, his name has been replaced and the name of one Shamrao was inserted, since Dr. M.B. Patil did not possess a driving licence as on the date of accident. Hence, the liability has been fastened on the owner of the vehicle. I find no infirmity in the said finding of the Tribunal fastening the liability on the owner of the vehicle to compensate the claimant.

With regard to the quantum of compensation is concerned, the advocate appearing for the appellant contended that at the time of accident, the claimant was aged about 55 years, however, by mistake his age was shown as 67 years. In the wound certificate, the age of the claimant is mentioned as 67 years. Hence, the contention of the advocate for the appellant cannot be accepted, since no material has been produced to prove the age of the claimant as 55 years. On going into the aspect of disability, I find that the doctor has assessed the disability to an extent of 20% to the whole body. The claimant has to lead his remaining life with the said disability. Hence, a sum of Rs. 10,000/- awarded towards loss of amenities is on the lower side. The claimant is entitled for another sum of Rs. 25,000/- towards loss of amenities. The compensation awarded by the Tribunal on all other heads is in accordance with law. Therefore, the claimant is entitled for the enhanced compensation of Rs. 25,000/-. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The claimant is entitled for the enhanced compensation of Rs. 25,000/-. The finding of the Tribunal, fastening the liability on the owner of the offending vehicle to pay the compensation is upheld.