Kumar Rihan vs Basavaraj and Others

B. Veerappa, J.—1. This is claimant''s appeal for enhancement against the judgment and award dated 08.02.2010 made in MVC No. 34/2009 on the file of Member, MACT-VI, Jamkhandi (hereinafter referred to as ''Tribunal'' for short) awarding total compensation of Rs. 82,500/- with interest at 6% per annum on Rs. 72,500/- from the date of petition till the date of deposit.

It is the case of the claimant that on 30.07.2008 at about 4.00 p.m., he met with an accident when he was standing by the side of the road near fish market due to the rash and negligent driving by the driver of Mini Goods Vehicle bearing No. KA-23/8851. Due to the impact he sustained fractural injuries to his left leg below the knee, big hole on the side of the left leg below the knee, nerves have cut and sustained other injuries on other parts of the body. He was admitted to DR. Parthanahalli Hospital and taken treatment for two months as indoor patient and spent Rs. 90,000/- towards medical expenses. It was further contended that before accident he was hale and healthy, due to accidental injuries he was not in a position to walk properly and sit with cross legs. His future is in dark. The 1st respondent is the owner of the alleged vehicle and 2nd respondent Insurer both are jointly and severally liable to pay compensation. Therefore, he filed a claim petition before the Tribunal claiming Rs. 9,90,000/- for the injuries sustained him.

The owner and the insurer filed their objections and denied the petition averments, age and health conditions of the claimant and also contended that the compensation claimed is exorbitant. The Insurer further contended that the owner of the vehicle entrusted the vehicle to the driver who was not having valid and effective Driving License to drive the alleged vehicle as on the date of accident. Therefore, there is violation of the terms of the policy and therefore it is not liable to pay compensation.

Based on the pleadings, the Tribunal framed the following issues.

1) Whether petitioner proves that on 30.07.2008 at about 4.00 hours petitioner was moving near Khatek street at that time one goods vehicle bearing No. KA-23/8851 came from Imama street in a rash and negligent manner driven by its driver and dashed to the petitioner as a result petitioner sustained grievous injuries all over the body as stated in the petition?

2) Whether petitioner proves his age and income?

3) Whether respondent No. 2 proves that there are violations of terms and conditions of the policy/Hence their company is not liable to pay compensation to the petitioner?

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

5) What order or award?

In order to establish the case, the father of the minor boy was examined as PW 1 and the doctor as PW 2 and marked the documents as Exs. P1 to 14. The respondents have not lead any evidence, except producing Ex. Rl-Insurance Policy.

After considering entire material on record, the Tribunal recorded a specific finding that the accident occurred on 30.07.2006 was due to rash and negligent driving by the driver of the alleged vehicle which has resulted the claimant minor boy aged about only 4 years disabled. The Tribunal held that the claimant has proved his case and the 2nd respondent failed to prove that there are violation of terms and conditions of the policy and therefore the 2nd respondent is liable to pay the compensation. Accordingly, awarded total compensation of Rs. 82,500/- with 6% interest from the date of petition till realisation. Aggrieved by the quantum of compensation awarded by the Tribunal the claimant is before this Court seeking enhancement.

I have heard the learned counsel for the lis.

Sri Harish S. Migur, learned counsel for the appellant contended that the Tribunal while awarding compensation has not considered the disability Certificate-Exs.P12 and Wound Certificate Ex. 3 and no finding is given on them. He further contended that the Tribunal has not awarded any compensation towards loss of marriage prospects of the claimant and also not awarded any compensation towards loss of future earning and also the compensation paid towards pain and sufferings is on the lower side. He further contended that as per Ex. P14-Doctor Certificate the doctor has specially stated that the claimant requires another Rs. 40,000/- towards future medical expenses, but the Tribunal has awarded only Rs. 10,000/-. Therefore, he sought to modify the impugned judgment and award by enhancing the compensation reasonably.

Sri M.G. Gadgoli, learned counsel for the 2nd respondent-insurer sought to justify the impugned judgment and award passed by the Tribunal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties, perused the entire material on record.

It is not in dispute that the accident took place on 30.07.2008 at about 4.00 p.m. and the minor boy aged about 4 years was injured due to the said accident. The Tribunal considering the entire material on record has recorded a specific finding that the claimant has proved that the accident occurred was due to the rash and negligent driving by the driver of vehicle bearing No. KA-23/8851 and thereby the minor boy has sustained grievous injuries all over the body as stated in the petition. The Tribunal further held that the 2nd respondent-insurer failed to prove that there are violation of terms and conditions of the policy. Admittedly the insurer has not filed any appeal challenging the specific finding recorded against the Insurer.

In the entire impugned judgment and award, the Tribunal has failed consider Ex. P3-Wound Certificate and Ex. P12-Disability Certificate, wherein it depicts that the claimant has sustained 20% disability to his left lower limb and 12% to the whole body. The wound certificate clearly depicts that the claimant has sustained grievous injuries as under:

"1) Cut and lacerated wound present on the popliteal fossa of left knee joint, about 6 x 4 cms muscle deep gross contamination present with neuro vascular bundle exposed and active bleeding present.

2) Abrasion present on the posterior aspect of thigh, middle and lower third leg middle and upper third 10 x 5 cms superficial active bleeding present".

The said aspects have been also stated by PW 1, who is father of the injured boy. Admittedly the Insurer has not produced any contra material nor adduced any contra evidence to rebut the evidence and medical documents produced by the claimant.

The Tribunal has erred in holding that there is no fracture and the disability stated by the doctor is not acceptable one, when Ex. P12 Disability Certificate clearly indicates that the claimant has sustained physical disability of left limb at 20% and disability of whole body at 12%. Therefore, taking into consideration the entire oral and documentary evidence available on record it is appropriate to re-assess the compensation to be paid to the claimant. Accordingly, the claimant is entitled to Rs. 75,000/- towards pain and sufferings as against Rs. 25,000/-, Rs. 70,000/- towards discomfort and disfigurement as against Rs. 20,000/-, Rs. 7,500/- towards attendant charges as against Rs. 2,500/- and Rs. 30,000/- towards future medical expenses as against Rs. 10,000/- awarded by the Tribunal. Further the claimant is entitled to Rs. 50,000/- towards loss of marriage prospects due to disability and Rs. 36,000/- towards loss of future earning capacity. The compensation awarded towards medical expenses at Rs. 25,000/- by the Tribunal and just and proper and does not call for interference by this Court. In all, the claimant is entitled to Rs. 2,93,500/- as against Rs. 82,500/-. The enhanced compensation amount comes to Rs. 2,11,000/- with interest at 6% per annum from the date of petition till realisation excluding the amount awarded towards future medical expenses and excluding the interest for delay of 1149 days caused in filing the appeal.

Accordingly the appeal is allowed in part, the impugned judgment and award dated 08.02.2010 passed in MVC No. 34/2009 by the Tribunal is hereby modified awarding enhanced compensation of Rs. 2,11,000 with interest at 6% per annum.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation Rs. 2,11,000/- with interest at 6% per annum (excluding the amount awarded towards future medical expenses and also excluding the interest for 1149 days the delay caused in filing the appeal) from the date of petition till realisation.

Out of enhanced compensation of Rs. 2,11,000/-, 50% with proportionate interest is ordered to be invested in the Fixed Deposit in any Nationalized Bank or Post Office in the name of the claimant till he attains the age of majority with liberty to the father of the claimant to withdraw the periodical interest accrued on it for the welfare of his son. Remaining 50% with proportionate interest shall be released in favour of the father of the claimant immediately on deposit by the Insurer.

Ordered accordingly.