Kasim Peer Sab vs Krishnappa Nayakaru

Mr. B. Manohar, J.—Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 29-11-2010 made in MVC No. 189/2008 passed by the VII Additional Motor Accident Claims Tribunal, Davanagere (hereinafter referred to as "the Tribunal" for short) has filed this appeal seeking enhancement of compensation.

The appellant filed a claim petition contending that on 02-11-2007, the claimant along with his friend were proceeding on Bajaj M-80 motorcycle bearing Registration No. KA-27/H-8540 towards Ramanagara of Harapanahalli Taluk, as a pillion rider. At that time, the driver of the Maruthi Alto Car bearing Registration No. KA-19/T-5406 came from opposite direction in a rash and negligent manner and dashed against the Bajaj M-80 motorcycle. Due to that, rider as well as the pillion rider fell down and sustained grievous injuries, immediately after the accident, the claimant was shifted to C.G.Hospital at Davanagere, wherein he took treatment for a period of 3 days and thereafter he was shifted to Kasturba Hospital at Manipal, wherein he took treatment as inpatient from 05-11-2007 to 22-11-2007, wherein he has undergone operation for the fracture of right Acetabular with posterior dislocation of hip joint with right foot drop. The claimant was inpatient for a period of 29 days. He claims that he has spent huge money towards his treatment. The accident occurred due to rash and negligent driving of the Maruthi Alto Car, which was insured with the second respondent. Hence, sought for compensation of Rs. 9,00,000/- from respondents 1 and 2.

Though the owner of the vehicle was served with notice, he remained unrepresented. The second respondent-insurance company filed written statement denying the entire averments made in the claim petition and also disputed the rash and negligent driving of Maruthi Alto Car. Further contended that the; driver of the Alto Car was not having valid and effective driving license as on the date of accident. Hence, the insurance company is not liable to compensate the claimant.

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

The claimant, in order to prove his case, got examined himself as P.W.1 and also examined the doctor who treated him as P.W.2 and got marked the documents as Ex.P1 to Ex.P71. On behalf of the respondents, none of the witnesses were examined. However, with consent, the insurance policy of the offending car was marked as Ex.R1.,

The Tribunal, after appreciating the oral and documentary evidence and taking into consideration the IMV report, charge sheet, copy of the complaint and other relevant records held that the accident occurred due to rash and negligent driving of the Maruthi Alto Car, due to which, the claimant has sustained injuries. Hence, the claimant is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained 3 injuries, out of which, injury No. 2 is dislocation of hip joint. Initially he had taken treatment in C.G. hospital at Davanagere, thereafter he had taken treatment in Kasturba Hospital at Manipal. He had undergone surgery for the fracture of right Acetabular with posterior dislocation of hip joint. He was inpatient in the hospital for a period of 29 days. Taking into consideration the injuries sustained and suffering undergone and also considering the medical bills produced by the claimant, the Tribunal has awarded a sum of Rs. 45,000/- towards medical expenditure and nourishment; Rs. 11,570/- towards loss of income during the laid up period; Rs. 25,000/- towards pain and suffering; Rs. 15,000/- towards loss of amenities of life. Further the doctor who treated the claimant had assessed the disability to an extent of 32% to the particular limb. The Tribunal taking the disability to an extent of 10.66% to the whole body, taking the income of Rs. 3,900/- p.m., applying the multiplier 15 since he was aged about 38 years as on the date of accident, awarded a sum of Rs. 74,835/- towards future loss of income. In all, the claimant has awarded a sum of Rs. 1,71,405/- with interest at the rate of 6% p.a. The claimant, being not satisfied with the quantum of compensation awarded by the Tribunal has filed this appeal seeking enhancement of compensation.

Sri. Ramakrishna, learned counsel appearing for the appellant contended that the quantum of compensation awarded by the Tribunal is on the lower side. In the accident, the claimant has sustained dislocation of hip joint and he has undergone fracture of Acetabular and internal fixation has been made. Though the claimant had produced the medical bills to an extent of Rs. 39,997/-, the Tribunal has awarded only a sum of Rs. 45,000/- towards medical expenditure as well as nourishment, which is on the lower side. Further, a sum of Rs. 25,000/- awarded towards pain and suffering and Rs. 15,000/- awarded towards loss of amenities of life is also on the lower side. Hence sought for enhancement of compensation.

On the other hand, Sri. K. Akash, learned counsel appearing for the second respondent-insurance company argued in support of the judgment and award passed by the Tribunal and contended that the Tribunal has awarded just and fair compensation and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.

The occurrence of the accident and injuries sustained by the claimant due to actionable negligence on the part of driver of the offending Maruthi Alto Car is not in dispute. The only dispute is with regard to quantum of compensation. In the accident, the claimant has sustained two simple injuries and one grievous injury, i.e., dislocation of hip joint and he has undergone surgery at Kasturba Hospital at Manipal, internal fixation has been made. The doctor who treated the claimant in his evidence has stated that there is restricted movement of hip joint. He has difficulty in carrying weight, walking and climbing steps. The doctor who treated the claimant has assessed the disability to an extent of 32% to the right lower limb. In view of dislocation of hip joint and surgery to Acetabular, the claimant has suffered a lot. A sum of Rs. 25,000/- awarded towards pain and suffering is lower side. Taking into consideration the injuries sustained and suffering undergone, it is appropriate to award another sum of Rs. 20,000/- towards pain and suffering. Further, the claimant has to lead his remaining life with the disability of 32% to the particular limb and a sum of Rs. 15,000/- awarded towards loss of amenities of life is on the lower side. Hence, it would meet the ends of justice, if another sum of Rs. 10,000/- is awarded under the said bead. Further the Tribunal has not awarded any compensation towards transportation and attendant charges. The claimant originally residing at Davanagere District., he has taken treatment in Kasturba Hospital at Manipal for a period of 29 days. Thereafter, he had taken follow-up treatment. Hence, the claimant is entitled to a sum of Rs. 25,000/- towards transportation and other incidental expenses. Further, the income of Rs. 3,900/-p.m., taken by the Tribunal is on the lower side. Even the agricultural labourers would earn more than Rs. 5,000/- p.m. In the instant case, the claimant owns agricultural land. Hence, it would be appropriate to take the income of Rs. 5,000/- p.m., and taking the disability to an extent of 10.66%, applying the multiplier 15, the claimant is entitled to a sum of Rs. 95,940/- towards future loss of income as against Rs. 74,895/- awarded by the Tribunal. In all, the claimant is entitled to enhanced compensation of Rs. 76,045/-which is rounded off to Rs. 76,000/- with interest at the rate of 6% p.a. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 29-11-2010 made in MVC No 189/2008 is modified. The claimant is entitled to enhanced compensation of Rs. 76,000/- in addition to Rs. 1,71,405/- as awarded by the Tribunal, with interest at the rate of 6% p.a.