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Judgment
H. S. Kempanna
Though this matter is listed for orders with consent of the learned counsel for the respective parties and as records have also been received, it is taken up for final disposal
This appeal by the claimant is directed against the common impugned judgment and award dated 07.06.2010 passed in MVC No.239/ 2009 by the Senior Civil Judge and MACT-IX, Harapanahalli., seeking for enhancement of compensation in respect of personal injuries, which he sustained in a motor accident that took place on 11.11.2008 at about 12.30 a.m. near Hombalagatta Cross situated on Kottur Road involving the tractor bearing Registration No. KA.17/TA-5335 driven by the first respondent, owned by the second respondent and insured with the third respondent at the relevant point of time. In the impugned accident he sustained grievous injuries, which comprised of fracture for which he took treatment in the hospital for about 12 days. He spent huge money for the treatment of his injuries. Despite the same, he is not completely cured of the injuries, due to which, he is unable to carry on his avocation, which has resulted in loss of income to him. Hence, on all these grounds he sought for grant of compensation from the respondents.
After service of notice, respondents appeared through their respective counsels and contested the claim of the petitioner, Respondents-1 and 2 contended that thus accident in question did not take place on account of the fault of the first respondent/ driver, on the other hand, it took place due to the fault of the driver of the auto rickshaw bearing/No. KA,20/A-2688, in which the petitioner was travelling. They further contended that the first respondent did possess valid and effective driving licence to drive the tractor at the time of the accident. The petitions is had for nonjoinder of necessary parties inasmuch as the driver, owner and insurer of the autorickshaw in which the petitioner was travelling have not been impleaded as party to the proceedings. They further contended that the tractor involved in the accident had been, insured, with the third respondent at the time of accident and if for any reason they are held liable to pay any compensation, the same be saddled, on the third respondent/ insurer.
Third respondent/ Insurer contended that the accident in question has not taken place due to the fault of the driver of the offending tractor as contended by the respondents 1 and 2 and further contended that the driver of the offending tractor did not possess valid and effective licence to drive the vehicle at the time of the accident, as such there is breach of terms and conditions of the policy committed by the second respondent/owner. They also denied all other averments made by the claimant in his petition and contended that they are not liable to pay any compensation, accordingly, sought for dismissal of the petition.
On the basis of the above pleadings, the Tribunal framed in all six issues,
The claimant in support of his case got himself examined as PW.2. The co-claimant and the doctors who have examined the two claimants came to be examined as PWs. 1, 3 and 4 respectively. They produced in all 23 documents, which came to be marked as Exs. P.1 to P.23, On behalf of the contesting respondents, they did not lead any oral evidence, On the other hand, they produced '' insurance policy, which came to be marked with consent as Ex. R1
The Tribunal on considering, the evidence and the documents on record held that the accident has taken place solely on account of the fault of the driver of the offending tractor, as such the claimant has established actionable negligence. Further the Tribunal looking to the evidence of the claimant and the documents placed on ''record, has awarded total compensation. of Rs. 1,10,000/- with interest at 6% per annum from the date of petition till realisation. It further saddled the liability of payment of compensation an the third: respondent/ Insurer.
The claimant ''being aggrieved by the quantum of compensation is in appeal before this Court.
The learned counsel appearing for the appellant/claiment submitted that the Tribunal has erred in not awarding just and reasonable compensation to the claimant under all heads despite the claimant having placed clinching material supported with the documents. Hence, a case for enhancement is made out.
Per contra, the learned counsel for the contesting insurer supported the impugned judgment and award of the Tribunal,
10, Taking the rival submissions into consideration and the evidence and documents placed on record, the point that arises for my consideration is:-
Whether/appellant/claimant has made out a case for enhancement?
Facts are not in dispute. The appellant/claimant having met with accident, injury sustained, treatment taken and the amount spent for the same are not in dispute. The appellant/ claimant has claimed that in the impugned accident be has sustained fracture to his left clavicle bone and fracture of 4 to 9th ribs of his right side chest, for which he took treatment in the hospital for about 12 days, His'' testimony is fortified from the evidence of PW.3 Medical Officer who has examined and treated him. It is further fortified from the wound certificate, which is at Ex. P.15 placed an record. A perusal of the evidence of PW.3-Medical Officer and the wound certificate which is at Ex. P, 15 reveal that the claimant has sustained fracture of left clavicle bone and fracture of 4 to 9th ribs on right side chest el the claimant. Taking these aspects into consideration, the Tribunal has awarded a sum for Rs.35,000/- towards injury, pain and suffering. The same in my view appears to be just and reasonable and does not call for any modification. Further the Tribunal has awarded a sum of Rs.10,000/- only towards loss- of amenities. Having regard to the nature and degree of the injuries which the claimant has sustained, I am inclined to award a further sum of Rs, 10,000/- towards loss of amenities. Further the Tribunal has awarded a sum of Rs,5,000/- towards medical expenses relying upon the medical bills which is at Ex. P.17 placed on record., The Tribunal accepting the genuiness of the bills has awarded, a sum of Rs:5,000/- towards medical expenses to the claimant. Ho grievance made in respect of the same before this Court/Hence, the same does not call for any modification, Further the Tribunal has awarded a sum of Rs.10,000/- towards conveyance, nourishment and attendant charges and towards loss of income during laid up period,. Learned counsel for the appellant submits that the said amount awarded under both heads is not just and proper and the Tribunal should have consider the case of the claimant for awarding loss of income during laid up period separately by considering his income. He further submitted that out of the said amount of Rs. 10,000/- an amount, of Rs.5,000/- only can be taken as the compensation towards conveyance, nourishment and attendant charges having regard to the nature and degree of the injuries sustained and the treatment that the claimant has taken in the hospital for about 12 days. The submission of the learned counsel for the appellant in the facts and circumstances appears to be just and reasonable; Therefore out of the amount of Rs.10.000/- awarded by the Tribunal towards conveyance, nourishment and attendant charges, it is split up and a sum of Rs-5,000/- only is awarded towards conveyance, nourishment'' and attendant charges. The balance of Rs.5000/- is taken to have been awarded towards loss of income during kid up period.
Next aspect that dwells for consideration is determination of income of the claimant, compensation to be awarded towards loss of income during laid up period and loss of future income. The claimant has claimed that he is aged 45 years, mason by profession, earning more than Rs,6,000/- per month. However, the claimant did not place any material in support of his claim in respect of his income. The Tribunal taking into account his age, occupation and the date of the accident that has taken place on 11.11.2008 has came to the conclusion that his income per., month would be Rs.3,000/-. In my view, having regard to the materials on record the claimant would, earn at least Rs.125/- to Rs.150/- per day. Therefore, under the circumstances, we can safely determine his Income at Rs.4,000/- per month as against of Rs.3,000/- determined by the Tribunal, The claimant has sustained fracture to his left clavicle bone and fracture of 4 to 9th ribs of his right side chest, Taking these fractures, I am of the view that he could not have attend to his normal work at least for a period of 21/2 months, for which period he should be compensated towards loss of income during laid up period. His income having been determined at Rs.4,000/- per month, he is awarded a sum of Rs. 10,000/- towards loss of income during laid up period for a period of 21/2 months at the rate of Rs.4,000/- per month. That is the claimant in this appeal is awarded a sum of Rs.5,000/- in addition to Rs.5,000/- which has been awarded by the Tribunal under the heading towards conveyance, nourishment and attendant charges and loss of income during laid up period.
The next aspect that falls tor consideration is loss of future income. The income of the claimant is determined at Rs. 4.,000/- per month. The claimant is aged 45 years, which is not in'' dispute. Therefore, the proper multiplier that becomes applicable to the facts of the case is 14. The evidence of PW,3- Medical Officer who has examined the claimant reveals that the claimant has permanent disability to an extent of 10%, which has been taken by the Tribunal Therefore, taking; all these aspects into consideration, the claimant would be entitled to a sum of Rs.62,200/- towards- loss of future income as against Rs,50,400/- awarded by the Tribunal. Thus in my view, the claimant in all is entitled to total compensation of Rs. 1,42,200/- with interest at 6% per annum from the date of petition till realisation as against Rs. 1,10,000/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs,32,200/- with interest at 6% per annum from the date of petition till realisation, The break up of the compensation awarded is as follow:-
1.
Towards injury, pain and Suffering
Rs.35,000/-
2.
Towards loss of amenties
Rs.20,000/-
Towards future medical Experises
Rs.5,000/-
4.
Towards- conveyance nourishment and attendant charges.
Rs.5,000/-
5,
Towards loss of income during laid up period (Rs.4,000 x 2� months)
Rs. 10,000/-
6.
Towards loss of future income (Rs.4,000 x 12 x 14 x 10/100)
Rs.67,200/-
Total
Rs. 1,42,200/-
Accordingly, appeal has to succeed in part.
In result for the foregoing reasons, I proceed to pass the following;-
ORDER
(i) The Appeal is allowed in parts
(ii) The impugned judgment and award passed by the Tribunal in MVC No, 239/2009 pertaining to the appellant/claimant is modified and the appellant/claimant is awarded total compensation of Rs. 1,42,200/- with interest at the rate of 6% per annum from the date of petition till realisation as against Rs.1,10,000/- with interest at the rate of 8% per annum from the date of petition till realisation awarded by the Tribunal, The enhanced compensation comes to Rs. 32,200/- with interest at 6% per annum from the date of petition till realisation,
(iii) Third respondent- Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award.
(iv) On deposit of enhanced compensation with interest, the same is ordered to be released, in favour of the appellant/ claimant.
Office to draw the award accordingly.