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Judgment
H.S. Kempanna, J.—Though this matter is listed for admission with consent of the learned Counsel for the respective parties and as the records have also been received, it is taken up for final disposal.
This appeal by the claimant is directed against the common impugned judgment and award dated 07.03.2009 passed in MVC No. 1121 / 2006 by the Civil Judge (Sr. Dn), Additional MACT, Kundapura seeking for enhancement of compensation in respect of the injuries, which he has sustained in a motor accident.
The brief facts of the case are:
The Appellant/ claimant filed claim petition u/s 166 of M.V. Act before the Tribunal claiming compensation in respect of bodily injuries sustained by him in the motor accident that took place on 14.05.2005 at about 4.15 p.m. near Anejari of Kollur Village located on Kollur - Kundapura road while he was proceeding as pillion rider on the motor cycle involving the jeep bearing Reg. No. KA-14/M-424 owned by the first Respondent and insured with the second Respondent at the relevant point of time According to him, in the impugned accident he sustained severe injuries, which comprised of fractures for which he took treatment in the hospital for a period of 55 days, underwent one surgery and spent huge money for the same Despite the same, he is not completely cured of his injuries, due to which, he is unable to carry on his avocation of coolie work, which has resulted in loss of income. Accordingly, he sought for grant of compensation.
On service of notice, the Respondents appeared through their respective counsels Among them, the first Respondent did not choose to file any statement. The second Respondent/Insurer contested the claim of the Petitioner by filing statement. It was contended that the accident in question has not taken place due to the fault of the driver of the offending jeep. On the other hand, it has taken place on account of the fault of the rider of the motor cycle, in which the claimant was proceeding as pillion rider. They further contended that the driver of the offending jeep did not possess any valid and effective licence to drive the jeep in question at the time of the accident. As such there is breach of terms and conditions of the policy issued, hence they are not liable to pay any compensation. Accordingly, they sought for dismissal of the petition.
The Tribunal considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the fault of the driver of the offending jeep and accordingly, the claimant has established actionable negligence, Further the Tribunal looking to the evidence of the claimant/Appellant, Medical officer-PW.2, who has examined him and the medical documents placed on record, has awarded total compensation of Rs. 3,29,400/- in all under various heads with interest at 6% per annum on 50% of the said amount from the date of petition, till realizations. It further saddled the liability of payment of compensation on the second Respondent-insurer.
The Appellant/claimant being aggrieved of the quantum of compensation is in appeal before this Court.
The learned Counsel appearing for the Appellant/claimant submitted that the Tribunal has erred in not awarding commensurate compensation towards injury, pain and suffering., conveyance, nourishment and attendant charges, future medical expenses and further it has not awarded any compensation towards loss of amenities and marriage prospectus. Hence a case for enhancement is made out.
Per contra, the learned Counsel for the contesting Insurer supported the impugned judgment and award of the Tribunal.
Taking the rival submission into consideration, evidence and documents on record, the point that arises for my consideration is:
Whether Appellant/ claimant, has made out a case for enhancement of compensation?
The facts are not in dispute. The Appellant/claimant having met with accident, injuries sustained, treatment taken end the amount spent for the same are not in dispute. According to the claimant, in the impugned accident he has sustained following fractures:
Left leg is deformed C painful abnormal mobility at mid 1/3.
Right let is deformed - there is compound fracture of tibia/fibula at mid 1/3 c bone 2 x 2 cm.
There is deep laceration 6x2 (R) knee.
Public injuries is disrupted C gap.
(R) ankle is swollen.
X ray - (1), # BB (L) leg. (2), #BB (R) leg commuted (3). Pubic injuries separate.
PW.2 Medical Officer who has examined him has fortified the testimony of the claimant in respect of the injuries sustained, by him. It is farther fortified from the wound certificate, which is placed at Ex.P.4, Further evidence on record reveal that the claimant has remained as inpatient for a period of 55 days in the hospital and has undergone one surgery, The Tribunal taking all these aspects into consideration has awarded a sum of Rs. 68,000/- towards injury, pain and suffering. The learned Counsel for the Appellant drawing my attention to the injuries sustained submitted that the Tribunal has not awarded commensurate compensation in respect of the injury Nos. 3 and 5. The Tribunal has awarded a sum of Rs. 2,000/- and Rs. 1,000/- for the said injuries. Therefore, in the facts and circumstances having regard to the nature of the said injuries, a further sum of Rs. 7,000/- is awarded in addition to a sum of Rs. 68,000/- awarded towards injury, pain and suffering. Thus the claimant is awarded a sum of Rs. 75,000/- towards injury, pain and suffering as against Rs. 68,000/- awarded by the Tribunal, Further the Tribunal has also awarded a sum of Rs. 85,174,94/- towards medical expenses as per the medical bills produced which are Exs. P.7 to P.67 series. No grievance in respect of the same was made before this Court. Therefore, the same does net call for any modification. Further the Tribunal has awarded a sum of Rs. 11,500/- towards conveyance nourishment and attendant charges. The claimant is resident of Chitradurga. He has remained as inpatient for a period of 55 days in the hospital, situated at Kundapura, which is at a distance of 450 k.m. from his place namely Chitradurga. Taking these aspects into consideration he must be awarded a further sum of Rs. 3,500/- towards conveyance, nourishment and attendant charges in addition to Rs. 11,500/- having regard to the date of the accident which took place on 14.05.2006. Hence, the claimant is aw aided total sum of Rs. 15,000/- towards conveyance, nourishment and attendant charges as against Rs. 11,500/- awarded by the Tribunal, Further the Tribunal taking his age, avocation and the date of the accident has rightly determined the income of the claimant at Rs. 3500/- per mouth. Taking the same having regard to the nature of fracture that he has sustained, the period for which he has taken treatment in the hospital and the follow up treatment that would be needed to the Petitioner has awarded a sum of Rs. 18,000/- towards loss of income during laid up period, which is also just and proper in the facts and circumstances of the case. Apart from this the Tribunal has awarded a sum of Rs. 1,34,640/- towards loss of future income, taking the permanent disability suffered by the claimant at 22 % to his whole body the income at Rs. 3,000/- and by applying the multiplier 17. No grievance was also made in respect of the same before this Court. Here itself it may be mentioned that the Respondent -Insurer has also not challenged the same by preferring any appeal or by not preferring any cross objections. Therefore in the facts and circumstances, the same does not call for any interference. Apart from this, the Tribunal has awarded a sum of Rs. 12,000/- towards future medical expenses as against the evidence of PW.2- Medical Officer who has examined him stated that he has required Rs. 20,000/- Having regard to the nature of implants that are in situ, a further sum of Rs. 3,000/- is awarded towards future medical expenses in addition to Rs. 12,000/- awarded by the Tribunal. The Tribunal has erred in not considering the case of the claimant for awarding compensation towards loss of amenities and loss of marriage prospectus having regard to the age of the claimant. As already pointed out that the claimant has sustained six injuries in all, out of which, two are major fractures. He has disability to an extent of 44% of his lower limb as deposed by the Medical Officer - PW.2 He has taken treatment for a period of 55 days in the hospital Therefore, taking all these factors into consideration as the claimant has to put up with discomfort and unhappiness in future, in the facts and Circumstances a sum of Rs. 35,000/- is awarded towards loss of amenities to the claimant, which has not been awarded by the Tribunal. The claimant is aged about 28 years. The accident has taken place on 14.05.2006. Taking these aspects into consideration, he is awarded a sum of Rs. 15,000/- towards marriage prospectus. Thus the claimant in all is entitled to total compensation of Rs. 3,92,900/- The break up compensation is as follows:
1)
Towards injury, pain and Suffering
Rs. 75,000/-
2)
Towards medical Expenses
Rs. 85,174.94/-
3)
Towards conveyance, Nourishment and Attendant charges
Rs. 15,000/-
4)
Loss of income during laid up period
(Rs. 3000 x 6)
Rs. 18,000/-
5)
Towards loss of amenities
Rs. 35,000/-
6)
Towards loss of future income
Rs. 1,34,640/-
7)
Towards medical expenses
Rs. 15,000/-
8)
Towards marriage prospectus
Rs. 15,000/-
Total
Rs. 3,92,814.94/-
Rounded off to Rs. 3,92,800/-
Accordingly, appeal has to succeed in part.
In result for the foregoing reasons, I proceed to pass the following:
ORDER
(i) The Appeal is allowed in part.
(ii) The impugned judgment and award passed in MVC No. 1121/2006 by the Tribunal is modified and the Appellant/claimant is awarded total compensation of Rs. 3,92,900/- with interest at 6% per annum from the date of petition till realizations as against Rs. 3,29,400/- with interest at the rate of 6% per annum from the date of petition till realizations awarded by the Tribunal The enhanced compensation comes to Rs. 63,500/- with interest at 6% per annum from the date of petition till realisation.
(iii) Second Respondent-Insurer shall deposit the entire enhanced compensation with interest before the Jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award.
(iv) Out of the enhanced compensation 50% with proportionate interest is ordered to be deposited in the name of the Appellant/ claimant in any Nationalised/ Scheduled bank for a period of five years renewable by further for a period of five years.
(v) Balance 50% with proportionate interest is ordered to be released in favour of the Appellant/ claimant.
Office to draw the award accordingly.