Manjappa vs Oriental Insurance Co. Ltd. and Others

B. Veerappa, J.—This above appeal is filed by the claimant against the impugned judgment and award dated 8.11.2011 passed in MVC No. 597/2010 on the file of the Principal Civil Judge (Sr. Dn.) and Additional MACT, Chitradurga seeking enhancement of compensation.

It is the case of the claimant that he sustained injuries in a motor vehicle accident that took place on 30.10.2009 at about 10.00 p.m., when he was proceeding on a motor cycle bearing registration No. KA-17/EA-5082 as a pillion rider in a bike driven by one Chethan from Bharamasagara to Neerthadi village, when the said motor cycle reached Anjaneyaswamy temple on N.H. 4 near Bharamasagara, due to rash and negligent driving of the motor cycle by its driver-Chethan while taking the bike to the left side of the road, without noticing the stone boulders, he hit the stone boulders on the left side of the road. As such, the claimant being the pillion rider fell down from the motor cycle and sustained grievous injuries. Immediately, he was shifted to Shamanur Shivashankarappa Hospital, Davangere where he was treated as inpatient from 31.10.2009 to 12.11.2009 and thereafter, on the advise of the doctor, he was shifted to Manipal Hospital, Bengaluru. He was examined by the doctors and was treated as inpatient from 13.11.2009 to 16.11.2009. It is further case of the claimant that he had spent about Rs. 2.5 lakhs totally and therefore, he had filed a claim petition before the Tribunal claiming compensation.

The 1st respondent/insurance company filed objections before the Tribunal denying the age, occupation and income of the claimant and also the treatment he had taken. Further it contended that the accident was caused solely due to rash and negligent driving of the said motor vehicle but the insurance company admitted that as on the date of the accident, the said bike was validly insured with the 2nd respondent, etc.

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

"i) Whether the petitioner proves that he sustained injuries in the alleged RTA occurred on 30.10.2009 at about 10.00 p.m. near Anjaneya Swamy Temple, Bharamasagara on NH4 road, on account of actionable rash and negligence of rider of Hero Honda Motorcycle bearing No. KA-17/EA-5082?

ii) Whether the petitioner proves that he is entitled for compensation? If yes, how much and from whom?"

The claimant/appellant was examined as P.W. 1 and the doctor as P.W. 2 and the documents were marked as Exs. P.1 to P.112. The respondents did not choose to lead any oral evidence, except producing the insurance policy Ex. R.1.

After considering the entire material, the Tribunal by its impugned judgment and award has awarded a total compensation of Rs. 68,200/- with interest at the rate of 6% p.a. from the date of petition till realization. Hence, the present appeal by the claimant seeking enhancement.

The learned Counsel for the appellant, Sri Spoorthy Hegde N., contended that the Tribunal has not considered Ex. P.10 the discharge summary issued by the Manipal Hospital and the compensation awarded by the Tribunal under different heads and the income of the claimant taken by the Tribunal is on the lower side and hence, sought for enhancement of the compensation awarded by the Tribunal.

Per contra, learned Counsel for the 1st respondent/insurance company, Sri R. Gunashekar sought to justify the impugned judgment and award passed by the Tribunal in the facts and circumstances of the present case.

Based on the rival contentions urged, the only point that arises for my consideration is:

"Whether the Tribunal is justified in awarding a compensation of Rs. 68,200/- with interest at 6% p.a. in the facts and circumstances of the present case?" 10. I have given my anxious consideration to both oral and documentary evidence and the arguments advanced by both the Counsel for the parties.

Admittedly, the insurance company had not filed any appeal against the impugned judgment and award. It is not in dispute that the claimant has specifically stated on oath that he was earning Rs. 5,538/- by working as Hamali in Jaxar India (Pvt.) Limited and the said evidence has not been elicited contrary by the respondents. Therefore, it is appropriate to take the income of the claimant at Rs. 5,000/- p.m. It is an admitted fact that the insurance company has not adduced any evidence to rebut the evidence and pleadings by the claimant/appellant. The Tribunal has also not taken into consideration Ex. P.10 the discharge summary issued by the Manipal Hospital wherein it has stated that:

''this 48 years old gentleman present to us with history of fall from a two wheeler 15 days ago, following he developed weakness of both lower limb. He also had sensation below shoulder. There was no history bowel/bladder disturbances.

Physical Examination:

Vitals

Pulse-86/min

BP- 110/70mmhg.

Neurologically he had central cord syndrome with no power from CS-T1. Had grade 4/5 power in Lt. lower limb and grade 3/5 in rt. Lower limb. There were reduced sensations below C5. All reflexes below C7 were exaggerated. C5-C7 reflexes were absent. On foley''s catheter."

In view of the aforesaid reasons the claimant has to suffer throughout his life. No amount of money can compensate the pain and suffering of the claimant. It is also not in dispute that as per Ex. P.6 - wound certificate the claimant is "suffering cervical spine -lateral - No #; X-ray of Chest AP view - No #; CT of brain shows i) diffused central edema; 2) 30 x 20 mm Hemorrhagic contusion in left temporal lobe, with adjacent perilesional edema and mild mass effect; 3) Extradural hematoma in right temporal lobe convexity with maximum thickness of 14 mm with mass effect; Linear fracture of right squamous temporal bone extending into adjacent parietal bone."

In view of the admitted facts stated above, the compensation awarded by the Tribunal is grossly inadequate and taking into consideration the entire material on record i.e., both oral and documentary evidence adduced by the claimant and doctor as well as Exs. P.1 to P.112 and the surrounding circumstances of the facts of the present case, it is appropriate to enhance the compensation awarded by the Tribunal and accordingly, the same is re-assessed as under:

Accordingly, the appeal is allowed in part and the impugned judgment and award is modified by enhancing the compensation by Rs. 82,000/- with interest at 6% p.a. from the date of petition till realization. In all the claimant is entitled to a total compensation of Rs. 1,50,200/- with interest at 6% p.a. from the date of petition till realization which shall be deposited by the insurance company within a period of 3 weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation of Rs. 82,000/- 50% of the same i.e., Rs. 41,000/- with proportionate interest shall be deposited in the name of the claimant in any nationalized bank for a period of 5 years with liberty to him to withdraw the periodical interest as and when it accrues and the remaining enhanced compensation of Rs. 41,000/- with proportionate interest shall be disbursed to the claimant immediately on deposit by the insurance company.

Office to draw the award accordingly.