Mahadeva and Others vs Mahadevaiah and Others

B. Manohar, J.—Sri. K. Shantharaju, learned counsel accepts notice for first respondent in MFA Crob. No. 148/2011.

This appeal and cross-appeal are directed against the judgment and award dated 29th January 2010 made in MVC No. 141/2007 passed by the Additional Motor Accidents Claims Tribunal, Ramanagara (hereinafter referred to as ''the Tribunal'' for short).

The claimant, being not satisfied with the quantum of compensation awarded in MVC No. 141/2007 filed the appeal. The National Insurance Company, being aggrieved by the said judgment and award fastening the liability on the Insurance Company filed the cross objections. Hence, both the appeal and cross-objections are heard together and disposed of by this common order.

The claimant filed by the claim petition contending that on 28-1-2007 at about 5.00 p.m. the claimant was proceeding in his motor cycle bearing registration No. KA-05/Y-4009 on Bannigiri-Byramangala Road. Near Maravegowdanadoddi Village, a motor bike bearing registration No. KA-42/E-9021 ridden by its rider in a rash and negligent manner and in a high speed and dashed against the motor cycle of claimant. Due to the said impact, the claimant fell down and sustained grievous injuries. Immediately after the accident, he was taken to Sanjay Gandhi Hospital, Bangalore and he took treatment for a period of 47 days. He claims that he has spent more than Rs. 30,000/- towards medical expenditure and in view of the injuries sustained and the fracture of right femur, he cannot work as an agriculturist. Prior to the accident he was hale and healthy and earning Rs. 10,000/- p.m. Hence, he sought for compensation of Rs. 4,00,000/-.

In pursuance of the notice issued by the Tribunal, the respondents entered appearance. However, the second respondent/Insurance Company alone filed the written statement denying the entire averments made in the claim petition and also rash and negligent riding of the offending motorbike by its rider. Further, it was contended that the motor cycle bearing registration No. KA-42/E-9021 is not covered by the Insurance Policy however its Engine No. 06H08M43611 and Chasis No. 06H09C10459 is covered by the policy. Further, the rider of the motorbike was not possessing the valid and effective driving license at the time of accident. Hence, the Insurer is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. In order to prove his case, the claimant was examined as P.W. 1 and got marked the documents as Ex. P1 to Ex. P64. Further, he has examined the doctor who treated him as P.W. 2. However, the respondents have not led any evidence nor placed documentary or oral evidence.

On the basis of the oral and documentary evidence let in by the parties, the Tribunal, taking into consideration a copy of the spot mahazar, charge sheet, and FIR held that due to the rash and negligent riding of the offending vehicle, the accident had occurred. With regard to the contention of the Insurance Company that the offending vehicle is not covered by the Insurance policy is concerned, the Insurance Company has admitted that the Engine Number and Chasis Number of the said vehicle was registered and the Registration Certificate of the offending vehicle produced clearly goes to show that the motor cycle bearing registration KA-42/E-9021 bears the above said Engine and Chasis numbers. Hence, the contention of the Insurance Company cannot be accepted. The wound certificate produced by the claimant clearly shows that he has sustained injuries in the accident. Hence, in view of the rash and negligent riding of the offending vehicle, the accident had occurred.

With regard to quantum of compensation is concerned, in view of the rash and negligent riding of the offending vehicle, the claimant has sustained Compound type III-B-Supracondylar fracture right femur. The claimant has undergone surgery for the said fracture of right femur. External fixator and condylar screws are fixed. The claimant was inpatient from 28-1-2007 to 24-2-2007 once again he was admitted on 12-6-2007 and re-fixation has been made on 14-6-2007 and he was discharged from the hospital on 3-7-2007. The doctor who has treated the claimant has assessed the disability to an extent of 68% to a particular limb and 22.6% to the whole body. Though the claimant claims that he was earning Rs. 10,000/- p.m. by doing agricultural work, no document has been produced to substantiate the said contention. At the time of accident he was aged about 32 years, the accident is of the year 2007, taking into consideration his income at Rs. 4,000/- p.m. and taking the disability to an extent of 22.6%, applying the multiplier 12, the Tribunal awarded a sum of Rs. 1,73,568/- towards future loss of income; Rs. 22,383.83 towards medical expenditure, travel nourishment and food expenses; Rs. 2,000/- towards future medical expenditure; Rs. 8,000/- towards loss of income during the laid up period; Rs. 20,000/- towards pain and sufferings; Rs. 5,000/- towards loss of amenities and pleasure. In all, the Tribunal has awarded the compensation of Rs. 2,30,951.83 which was rounded off to Rs. 2,31,000/- with interest at the rate of 6% p.a. Being not satisfied with the quantum of compensation awarded insofar as pain and sufferings; loss of amenities of life and future medical expenditure, the claimant has preferred the appeal.

The appellant/Insurance Company being aggrieved quantum of compensation and fastening the liability on the Insurance Company to compensate claimant has filed the cross-objection mainly contending that the vehicle bearing registration No. KA-42/E-9021 is not involved in the accident and in collision with the police officials the same has been falsely implicated in the accident. Further, the compensation awarded is too exorbitant and hence sought for setting aside the judgment and award passed by the Tribunal.

I have carefully considered the arguments addressed by Sri. K. Shantharaju, the learned counsel for the appellant/claimant and Sri. M. Narayanappa, learned counsel appearing for the cross-objector/Insurance Company and perused the judgment and award, oral and documentary evidence.

The records clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 28-01-2007 and he has sustained Compound type III-B-Supracondylar fracture right femur. The main contention of the claimant is that due to the rash and negligent riding of the motorbike bearing registration No. KA-42/E-9021, the accident had occurred. Further, the police have registered a case against the rider of the said motorbike. The contention of the cross-objector is that they have not issued insurance policy in respect of the vehicle bearing registration No. KA-42/E-9021 whereas the policy has been issued in respect of motor cycle bearing Engine and Chasis numbers referred to above. Further in the wound certificate, it was mentioned that Hero Honda Splender dashed against the motor cycle of the claimant whereas the motorbike bearing registration No. KA-42/E-9021 is Hero Honda Passion and not the Splender. Hence, the claimant has falsely implicated the vehicle bearing registration No. KA-42/E-9021 in the accident.

On the other hand, the Registration Certificate of the vehicle bearing registration No. KA-42/E-9021 bears the Engine No. 06H08M43611 and Chasis No. 06H09C10459. Hence, it is clear that the vehicle bearing registration No. KA-.42/E-9021 bears the above said Engine and Chasis numbers, for which the Insurance Company has given Insurance Policy. Though the description of the vehicle is wrongly mentioned as Splender instead of Passion, that cannot be a ground to hold against the claimant. The vehicle involved in the accident bears the registration No. KA-42/E-9021. The owner of the vehicle has also not disputed the same. Hence, the contention of the Insurance Company that the vehicle bearing registration No. KA-42/E-9021 is not involved in the accident cannot be accepted.

With regard to quantum of compensation is concerned, in the accident the claimant has sustained Compound type III-B-Supracondylar fracture of right femur. He has undergone surgery, internal and external fixation has been made. He was inpatient for a period of 47 days. The doctor who treated the claimant has assessed the disability to an extent of 68% to the particular limb and 22.6% to the whole body. Though the claimant claims that he was earning Rs. 10,000/- p.m. by doing agriculture work, no document has been produced to substantiate the said contention. In view of that, the Tribunal has taken the monthly income of the claimant at Rs. 4000/-; taking into consideration the disability at 22.6% and applying multiplier 16 has awarded a sum of Rs. 1,73,568/- towards loss of future income. I find no infirmity or irregularity in awarding compensation towards for the loss of income. The compensation of Rs. 5,000/- towards loss of amenities and pleasure is on the lower side. The claimant has to lead the remaining life with 68% disability to the particular limb. Hence, he is entitled to another sum of Rs. 25,000/- towards loss of amenities of life. Further, a sum of Rs. 20,000/- awarded towards pain and suffering is also on the lower side. The claimant was inpatient for a period of 47 days, initially from 28-1-2007 to 24-2-2007, thereafter once again he was admitted on 16-7-2007 and discharged after removal of implants on 3-8-2007. He has undergone huge suffering. Hence is entitled to another sum of Rs. 15,000/-. In all, the claimant is entitled to enhanced compensation of Rs. 40,000/- in addition to the compensation awarded by the Tribunal with interest at the rate of 6% p.a. Accordingly, I pass the following:

MFA No. 6309/2010 is allowed in part. The judgment and award dated 29-01-2010 made in MVC No. 141/2007 is modified. The claimant is entitled enhanced compensation of Rs. 40,000/- with interest at the rate of 6% p.a.

In view of the above finding, the MFA Crob. No. 148/2011 filed by the Insurance Company is dismissed.