MR.HANEEFA vs SMT SUMANGALA K BHAT & Ors

Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 01-03-2011 made in MVC No.595/2008 passed by the Motor Accident Claims Tribunal, Puttur, D.K. (hereinafter referred to as "the Tribunal" for short) has filed this appeal seeking enhancement of compensation.

The appellant filed a claim petition contending that on 23-10-2006 while he was proceeding in a motorcycle bearing Registration No.KA-21/J-4477 as a pillion rider from Narimogru towards Puttur, near Kemminje village, a Maruthi Omni Car bearing Registration No.KA-19/M-4265 driven by its driver in a rash and negligent manner dashed against the motorcycle from the wrong side. Due to the impact, the rider as well as the pillion rider fell down and sustained grievous injuries all over the body. Immediately after the accident, the Pillion rider was shifted to Highland Hospital, Mangalore wherein he had taken treatment for several days. He has undergone surgery and also taken follow up treatment for several times. In the claim petition, in was contended that prior to the accident, he was working as a fruit seller in a shop and getting income of Rs.5,250/- p.m. In view of the injuries he has sustained in the accident, he cannot do the work which he was doing prior to the accident and hence sought for compensation of Rs.5,00,000/-.

In response to the notice issued by the Tribunal, the first respondent filed written statement denying the entire averments made in the claim petition and also contended that due to the rash and negligent riding of the motorcycle, the accident had occurred. As on the date of accident, the insurance policy was in force and the driver of the offending car was having valid and effective driving license. Hence, the insurance company is liable to compensate the claimant.

The insurance company in their written statement specifically contended that driver of the offending Maruthi Car was not having valid and effective driving license as on the date of accident. The rider of the motorcycle had also contributed for the cause of accident. The compensation claimed is exorbitant. Hence, sought for dismissal of the claim petition as against the insurance company.

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

The claimant, in order to prove his case got examined himself as P.W.1. the doctor who treated him was examined as P.W.2, and the employer of the claimant was also examined as P.W.3 and got marked the documents as Ex.P1 to Ex.P164. On behalf of the respondents, none of the witnesses were examined, however, the D.L. Extract and insurance policy were marked as Ex.R1 to Ex.R3.

The Tribunal, after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, IMV report, copy of the complaint and charge sheet held that due to the actionable negligence on the part of driver of the offending Maruthi car, the accident occurred and the claimant has sustained grievous injuries. Hence he is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, the claimant has sustained lacerated wound on both right and left side of parietal region of the head. CT scan of the brain taken during the treatment discloses that interior part of the brain was not working and found that there is a diffuse axonal injury with hyponema of collapse of cut injury. He has undergone operation. In view of the injuries he has sustained, he is not in a position to speak properly. The doctor assessed the disability to an extent of 25% to the whole body. The Tribunal, taking into consideration the injuries sustained and suffering undergone by the claimant, awarded compensation in a sum of Rs.2,45,000/- with interest at the rate of 6% p.a. The claimant, being not satisfied with the quantum of compensation awarded by the Tribunal has filed this appeal seeking enhancement of compensation.

Sri.Chandranath Ariga, learned counsel appearing for the appellant contended that the quantum of compensation awarded by the Tribunal towards pain and suffering, loss of amenities of life, future loss of income, future medical expenses and the loss of income during the laid up period is lower side. The accident occurred in the year 2006. The notional income of the Rs.15,000/- p.a. taken by the Tribunal is on the lower side. In view of the head injury, the claimant cannot do the work as he was doing prior to the accident, in view of the disability he has sustained to his head. Hence, sought for enhancement of compensation.

On the other hand, Sri.Jwalakumar, learned counsel appearing for Respondents 2 and 4 argued in support of the judgment and award passed by the Tribunal and contended that the compensation awarded by the Tribunal is in accordance with law. However, the notional income of Rs.15,000/- p.a., taken by the Tribunal is lower side. To that extent he has no objection to enhance the same.

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

The dispute in this appeal is with regard to quantum of compensation. In the accident, the claimant has sustained injury to parietal region of the head, CT scan discloses that the interior part of the brain was not working due to the injury. There was diffuse axonal injury to the brain. He has undergone operation, MRI report of the brain issued by Dr.Praveen Kumar who was a Radiologist clearly discloses that due to the injury sustained to the brain, the claimant is not in a position to speak properly and also suffering from paralytic stroke on (L) portion. While the claimant gave the evidence, the Tribunal noticed that the claimant is unable to speak properly. P.W.2, who accompanied Dr.Devadiga, Neurosurgeon of Yenapoya Medical College and Hospital, Mangalore while treating the claimant in his evidence has clearly stated that in view of the head injury sustained, he cannot perform the duty as effectively as he was performing prior to the accident. The doctor has assessed the disability to an extent of 25% to the whole body. The Notional income of Rs.15,000/- p.a. taken by the Tribunal is lower side. Even for the daily wage employees working in various Government Departments, their income is being taken as Rs.3,500/- p.m. At the time of accident, the claimant was aged about 20 years. Hence the appropriate multiplier to be adopted is 18. Taking the income of the claimant as Rs.3,500/- p.m., applying the multiplier 18, considering the disability to an extent of 25%, the claimant is entitled for compensation of Rs.1,89,000/- towards future loss of income as against Rs.67,500/- awarded by the Tribunal. Further, in view of the injuries sustained by the claimant, he was inpatient in the hospital for a period of 56 days. Out of that, he was in ICU for a period of 27 days. A sum of Rs.25,000/- awarded towards pain and suffering is on the lower side. Hence he is entitled to another sum of Rs.25,000/- towards pain and suffering. A sum of Rs.25,000/- awarded towards loss of amenities is lower side. The claimant has to lead his remaining life with the disability of 25%, hence he is entitled to another sum of Rs.25,000/- towards loss of amenities of life. A sum of Rs.10,000/- awarded towards future medical expenses is also on the lower side. In view of the head injury and non-functioning of the brain, he is entitled to another sum of Rs.20,000/- towards future medical expenses. Further, a sum of Rs.2,500/- awarded towards loss of income during the laid up period is on the lower side. Hence the claimant is entitled to another sum of Rs.10,000/- towards loss of income during the laid up period. Hence, the claimant is entitled to enhanced compensation of Rs.2,01,500/- in addition to Rs.2,43,000/- with interest at 6% p.a. Accordingly, I pass the following: ORDER

The appeal is allowed in part. The judgment and award dated 01-03-2011 made in MVC No.595/2008 passed by the Motor Accident Claims Tribunal, Puttur is modified. The claimant is entitled to enhanced compensation of Rs.2,01,500/- in addition to Rs.2,43,000/- with interest at the rate of 6% p.a.

The second respondent is directed to deposit the entire compensation amount, within a period of four weeks from the date of receipt of a copy of this judgment.