Mahadevi and Others vs Bajaj Temp Ltd. and Others

B. Manohar, J.—1. Appellants in these appeals are the claimants. Being not satisfied with the quantum of compensation awarded in the judgment and award dated 8th September 2009 made in MVC No. 61/2005 and MVC No. 62/2005 by the I Addl. Dist. and Sessions Judge and Member MACT-II at Bijapur (hereinafter referred to as ''Tribunal''), they have filed these appeals.

Since the common judgment and award passed by the Tribunal have been challenged in these two appeals, both the appeals are clubbed together and disposed of by this common judgment.

Appellants in these appeals are the claimants. Claimant in MVC No. 61/2005 is the wife and claimant in MVC No. 62/2005 is the husband. On 29.4.2007 both were going in mini door vehicle bearing Regn. No. MH-14/148 towards Siggaon by paying hire charges. The said vehicle met with an accident due to rash and negligent driving by its driver and the said vehicle turned turtle. Due to the impact, they sustained injuries. Immediately they were shifted to Primary Health Center, Siggaon. Thereafter, she was referred to Karnataka Institute of Medical Science (KIMS), Hubli and further she took treatment in G.S. Kulkarni Hospital, Miraj for more than two months. Prior to the accident, she was doing tailoring work and earning a sum of Rs. 4,000/- p.m. In view of the accident, she cannot do the tailoring work. Therefore, she sought for compensation of Rs. 5,50,000/-.

Claimant in MVC No. 62/2005 sustained injury in the very same accident. Immediately after the accident, he was shifted to Primary Health Center, Siggaon. He was referred to Karnataka Institute of Medical Science (KIMS), Hubli and then he took treatment at Miraj. Prior to the accident, he was working as a lecturer in Junior College, Nalatwad, Taluk Muddebihal and getting monthly salary of Rs. 10,000/-. Therefore, he sought for compensation of Rs. 6,00,000/-.

Though the notice was served on the owner of the vehicle, he remained unrepresented. The 2nd respondent - Insurance Company filed written statement denying the entire averments made in the claim petition and also contended that the policy issued to the offending vehicle is a road transit risk coverage policy and covers only the goods, but not human beings, whereas the claimants were travelling in the goods vehicle as gratuitous passengers and sought for dismissal of the claim petitions as against the Insurance Company.

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

In order to prove their case, claimants got examined themselves as P.Ws. 1 and 2 and got marked the documents as Exs. P1 to P16. The doctor, who issued the disability certificate, was examined as P.W. 3. On behalf of the insurer, Law Officer got examined as R.W. 1 and marked the insurance policy as Ex. R1.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration the FIR, spot panchanama, MVI report, wound certificate, charge sheet and copy of the complaint held that due to rash and negligent driving of the mini door autorickshaw, the accident had occurred. Hence, the claimants are entitled for compensation.

With regard to quantum of compensation is concerned, the Tribunal taking into consideration the injuries sustained and sufferings undergone by the claimant in MVC No. 61/2005 and taking her income as Rs. 2,700/- p.m., the disability to an extent of 10% to the whole body and applying the multiplier ''14'', since she was aged about 41 years at the time of accident, awarded a sum of Rs. 45,360/- towards future loss of income, Rs. 20,000/- towards pain and suffering, Rs. 43,406/- towards medical expenses, in all, a sum of Rs. 1,18,766/- with interest at 6% p.a., whereas, the claimant in MVC No. 62/2005, taking into consideration the five simple injuries and fracture of upper end of left humerus , the Tribunal awarded a sum of Rs. 20,000/- towards pain and suffering and Rs. 3,400/- towards medical expenses and Rs. 5,000/- towards amenities. In all, a sum of Rs. 28,400/- has been awarded by the Tribunal.

With regard to liability is concerned, since the mini door autorickshaw was registered as goods vehicle, the insurance policy was issued as goods vehicle and was in operation only from 1.1.2004 to 31.12.2004, apart from that, the owner of the vehicle allowed gratuitous passengers in the goods vehicle. Therefore, the liability has been fastened on the owner of the vehicle to compensate the claimants. The claimants being not satisfied with the quantum of compensation have filed these appeals seeking enhancement of compensation.

Though the owner of the vehicle has been served with notice, he remained unrepresented.

The Advocate appearing for the 2nd respondent argued in support of the judgment and award passed by the Tribunal and sought for dismissal of the appeals.

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

The injuries sustained by the claimants in the road traffic accident that occurred on 29.4.2007 is not in dispute either by the Insurance Company or by the owner of the vehicle. The actionable negligence on the part of the driver of the goods vehicle has become final. The dispute is only with regard to the quantum of compensation.

Claimant in MVC No. 61/2005 sustained three lacerated wounds over the left eye and other parts of the body, contusion on eye, contusion on thigh, on left hip, fracture of proximal femur LT and dislocation of the hip joint. Initially she took treatment for three days in the government hospital and thereafter she was shifted to KIMS hospital, Hubli for treatment for a period of 20 days. In view of fracture of proximal femur LT, she has undergone operation for placing implant through ''K'' wire. Though the doctor assessed the disability to an extent of 40 to 45% to right lower limb, the disability to an extent of 10% to the whole body taken by the Tribunal is on the lower side. Further, the income of Rs. 2,700/- p.m. taken by the Tribunal is also on the lower side. Even an agricultural labourer can earn more than Rs. 3,000/- p.m. Even though, claimant failed to prove the income, the Tribunal ought to have taken the income as Rs. 3,000/- p.m. and assessed the disability to an extent of 15% to the whole body. If the income of claimant is taken as Rs. 3,000/- p.m., taking into consideration the disability to an extent of 15% and applying the multiplier 14, she is entitled to compensation of Rs. 75,600/- as against Rs. 45,360/- awarded by the Tribunal towards future loss of income. Further a sum of Rs. 20,000/- awarded towards pain and suffering is also on the lower side. In view of fracture of proximal femur LT placing implant through ''K'' wire, she is entitled to another sum of Rs. 10,000/- towards pain and suffering. Further no compensation is awarded towards loss of income during the laid up period as well as attendant and nourishment charges since she took treatment at Miraj. Therefore, she is entitled to compensation of Rs. 10,000/-each for loss of income during the laid up period and attendant and nourishment charges. Hence, she is entitled to be enhanced compensation of Rs. 60,240/- which is rounded off to Rs. 60,000/-.

So far as the claimant in MVC No. 62/2005 is concerned, in the very same accident, he sustained five simple injuries i.e. left ring finger, left middle finger, left index finger and left thumb, left shoulder and fracture of upper end of left humorous. He took treatment in different hospitals. The compensation of Rs. 20,000/- towards pain and suffering awarded by the Tribunal is on the lower side. In view of fracture of humorous, he was out of employment for few days. The Tribunal has awarded the compensation towards pain and suffering, medical expenditure and amenities. Hence, the claimant is entitled to another sum of Rs. 20,000/- apart from Rs. 28,400/- awarded by the Tribunal.

The finding regarding the liability fastening on the owner of the offending vehicle has become final and the same is not challenged by the claimants. Hence, the 1st respondent has to compensate the claimants. Accordingly, I pass the following:

ORDER

Appeals are partly allowed. The common judgment and award dated 8th September, 2009 made in MVC No. 61/2005 and MVC No. 62/2005 by the I Additional District and Sessions Judge and MACT-II, Biijapur is modified.

Appellant in MFA No. 30079/2010 is entitled for the enhanced compensation of Rs. 60,000/- apart from Rs. 1,18,766/- with interest at 6% p.a. awarded by the Tribunal, whereas the appellant in MFA No. 30078/2010 is entitled for the enhanced compensation of Rs. 20,000/- apart from Rs. 28,400/- with interest at 6% p.a. awarded by the Tribunal.