Krishna P. Hegde vs Mrs. Gouri

AN Venugopala Gowda, J.—Appellant had filed petition u/s 166 of Indian Motor Vehicles Act, claiming compensation against respondents of Rs. 9,78,360/- on account of the grievous injuries sustained by him in the motor vehicle accident on 21-11-2000 because of the rash and negligent driving of the Maruti Omni bearing registration No. KA-20-7359., The claim petition was contested by the respondents.

Considering the pleadings of the parties, the Tribunal has framed the following issues.

1) Whether petitioner proves that he met with an accident can 21-11-2000 at about 7 p.m. near Sri. Rama Prasad Higher Primary School, Manur, on NH-17 while he was riding his Hero Jet bicycle from his house towards the said school?

2) Whether petitioner proves that the said accident has occurred solely due to the rash and negligence on the part of the driver of Maruthi Omni bearing Keg. No. KA-20-7359 and the petitioner sustained grievous injuries on his person due to the said impact ?

3) Whether there exists contributory negligence as alleged ? If so, to what extent?

4) Whether petitioner is entitled for compensation ? If so, to what extent and from whom ?

5) What order or award ?

Considering the evidence of P.Ws. 1 to 3, Exhibits P.1 to P.40, Exhibits C.1 to C.10 and on hearing the learned Advocates appearing for the parties, the Tribunal has passed the judgment dt 6-10-2004, holding that there was actionable negligence, the petitioner was the victim, has sustained grievous injuries and has to be compensated.

The judgment and award, has not been questioned by the respondents. The appellant, being dissatisfied with the quantum of award, has filed this appeal for enhancement of the compensation amount payable and to pass a modified award.

We heard the learned Advocates appearing on both the sides and perused the record of the Tribunal.

Learned Advocate for the appellant contended that the Tribunal is not justified in quantifying the compensation payable at Rs. 1,27,000/- with interest. Learned Counsel contended that the award is not just, but is meagre. He contended that the Tribunal has not taken into consideration the (sic) of injuries sustained in the accident, the period and nature of treatment obtained, expenditure incurred and the permanent partial disability which has remained in the body of the appellant on account of the accidental injuries. It was submitted that the award being grossly low, evidence - both oral and documentary may be reassessed and a just award may be passed.

Per contra, learned Counsel appearing for the third respondent - Insurance Co.would contend that the award passed by the Tribunal is just, no enhancement is called for and would generally support the award passed by the Tribunal.

Keeping in view the rival contentions, the point that arises for our consideration is :

Whether the award passed by the Tribunal is just, if not, what is the just compensation the appellant, is entitled to be awarded.

Appellant has got examined himself in the Tribunal as P.W.1 He has deposed regarding the accident, the injuries sustained by him on account of the accident, the treatment obtained by him, the disability suffered, the pain and agony to which he has been subjected to, and also the medical and other related expenditure, incurred. P.W.2 has deposed about the manner in winch the accident took place. P.W.3 is Dr. Satyanarayana Shenoy, Neuro Surgeon in KMC Hospital, Manipal. He has deposed that cm account of the accidental injuries, the appellant came to KMC Hospital, he was examined and the accidental injuries were noticed. Injured was admitted, treated and was discharged on 24-11-2000. Injured has taken treatment subsequently as an out patient on five occasions in the hospital. On 7-11-2002, he examined the injured for the last time and found that, he had lost the sense of smelling, there is loss of memory, and had developed symptoms of epilepsy. Exhibit P.6 is the certificate issued by him. According to him, there is 60% disability suffered by the injured. He has deposed that injured was taking treatment, he should not avoid sleep in the night and if he were to loose sleep in the night, he has to make up the sleep during the day hours, the injured will get into epilepsy if he does not have full sleep. In the cross examination, he has deposed that he examined the injured on the day of admission, but, there is no entry in the Register for he having treated the injured on the date of the accident, it appears, on 4-12-2000 he has treated the injured for the first time, the contents of the discharge summary are correct, that he did not give any instructions at the time of discharge to the injured, that the injured had not sustained any fracture, injured was subjected to neurological test, he has no knowledge about the memory of the injured prior to the accident, he has denied the suggestion that, raise in blood pressure, will lead to epilepsy. He has admitted that at the time of discharge, from external appearance, the injured appeared to have recovered. He has denied the suggestion that there is no disability.

Considering the said evidence, the Tribunal has awarded as follows:

a) Towards injury, pain and suffering -

Rs. 10,000/-

b) Towards medical expenses

Rs. 7,700/-

c) Towards food, extra nourishment and medical attendants

Rs. 1,000/-

d) Towards conveyance

Rs. 800/-

e) Towards loss of income

Rs. 7,500/-

f) Towards disability and deprivation of future amenities

Rs. 1,00,000/-

Total

Rs. 1,27,000/-

After considering the evidence of P.W. 1 and P.W.3 and the documents relating to the treatment and resultant effects, in our view, the Tribunal has not awarded the just compensation. The award of the Tribunal is on a lower side. Hence, the award calls for modification.

(a) Exhibit P.3 is the wound certificate which reveals that, in all there were 12 injuries, out of which one is close head injury. P.W.3 has deposed about the injuries. Considering the nature of injuries sustained, the resultant pain and suffering, in our view, additional sum of Rs. 10,000/- has to be awarded, towards pain, suffering and shock.

b) P.W.1 has testified that he took treatment at Adarsh Hospital, Kundapur and KMC Hospital, Manipal. The bills produced by him at Exhibits P. 12 to P. 14 show that an expenditure of Rs. 7,612/- was incurred. The petitioner might not have preserved all the bills. Hence, under the head ''medical expenses'' we award additional sum of Rs. 5,000/-.

c) Considering the nature of injuries sustained, treatment taken as inpatient and also as outpatient, petitioner had to spend for extra nourishment, conveyance of himself and attendants and towards attendant charges. In our view, it is reasonable to award under the head ''nourished diet, conveyance and attendant charges'', an additional sum of Rs. 10,000/-.

d) The petitioner, to recover from the injuries, has not attended to the work. According to him, he did not work for seven months and there is toss of income of Rs. 42,000/- at the rate of Rs. 6,000/- per month- From the record, it is seen that the petitioner was employed at ''Ugraparameshwari Yakshagana Mandali.'' He has produced the salary certificates which is Exhibit P.9. It reveals that the petitioner was paid salary of Rs. 1,800/ - and Rs. 4,200/- as donors remuneration. The Tribunal has taken the monthly salary of the petitioner at Rs. 2,500/- per month. In our view, considering the vocation of the petitioner, the same is on the tower side. Taking into consideration, the nature of employment of the petitioner, it would be reasonable to consider the salary of the petitioner at Rs. 3,500/- per month. Exhibit P.8 shows that the petitioner did not attend duty for three months. Hence, additional sum of Rs. 3,000/- is required to be awarded as ''loss during period of treatment''.

e) Considering the evidence of P.W.3, Exhibit P.3 - the wound certificate, discharge summary - Exhibit P.6, since there is disability suffered by the petitioner on account of the accidental injuries, and there is loss of memory to some extent, which has effected his routine life and will come in the way of discharging of his normal functions, in our view, it would be reasonable to award an additional sum of Rs. 40,000/- under the head ''disability and deprivation of further amenities.

f) As we do not find any supporting evidence to accept the disability of 60% stated by P.W.3, we are not awarding any amount towards ''decrease in earning capacity and loss of future income''.

In view of the above discussion, and for the reasons, the appeal is/ allowed in part. In addition to the compensation awarded, sum of Rs. 68,000/ -, as indicated above, is awarded, which shall carry interest at 6% p.a. irons the date of claim petition, till the date of deposit in the tribunal. Third respondent - Insurance Co. has been fixed with the liability by the Tribunal. It shall deposit the additional compensation amount, together with the interest payable thereon, within a period of four months from today, under intimation to the appellant, in the Tribunal, in case of default, the third respondent - Insurance Co. shall be liable to pay interest on the additional/enhanced compensation amount at 8% p.a. No costs.

Office is directed to draw the modified award in terms hereof.