Nagaraju @ Nagarajappa P. vs Yogesh P.M.

B. Manohar, J. - The claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 2.8.2010 made in MVC No. 2106/2008 passed by t he Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to, as ''the Tribunal for short) filed this appeal seeking enhancement of compensation.

The appellant herein filed a claim petition contending that on 21.12.2008 at about 9.45 p.m., while he was crossing the road on Bettahalasuru cross junction on NH-7, a motorcycle bearing Registration No. KA-53/J-0725 ridden by its rider in a rash and negligent manner dashed against the claimant. Due to that, he fell down and sustained grievous injuries all over the body. Immediately after the accident he was shifted to Shiradi Sai Hospital at Bengaluru, thereafter he was shifted to Bowring and Lady Curzon Hospital. He has spent more than Rs. 50,000 towards medical expenditure. At the time of accident he was aged about 51 years, working as a driver and darning salary of Rs. 6,000 p.m. and Rs. 50 as batta per day in-view of the grievous injuries he has sustained in the accident, he cannot do the work of a driver. Due to the rash and negligent riding of the motorcycle which was insured with the second respondent, the accident had occurred. Hence, both respondents 1 and 2 are liable to compensate the claimant.

In pursuance of the notice issued by the Tribunal, the first respondent regained unrepresented and he was placed ex parte. The Insurance Company filed written statement denying the entire averments made in the claim petition and also disputed the rash and negligent riding of the offending motorcycle. The accident occurred due to negligence on the part of claimant himself wherein he crossed the road, Where there is no Zebra crossing. Further, rider of the motorcycle was hot holding valid and effective driving license as on the date of accident and Sought for dismissal of the claim petition.

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 and examined two doctors who treated hi m as P.W.2 and P.W-3 and got marked the documents as Ex.P1 to Ex.P18. On behalf of the respondents,-none of the witnesses were examined nor has any document been marked.

The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the spot mahazdr, IMV report, copy of the sketch, complaint and charge-sheet held that due to rash and negligent tiding of the motorcycle the accident had occurred. Hence the claimant is entitled for compensation. With regard to quantum of compensation is concerned, though the claimant claims that he was working as a driver and earning Rs. 6,000 p.m. and getting batta of Rs. 50/- per day, no document has been produced to substantiate the same. The driving license was also not produced. In the absence of the same, the Tribunal had taken the income of the claimant as Rs. 3,500 p m. In the accident the Claimant has sustained (a) comminuted fracture of type-III B both the bones-of lower ⅓rd of left leg and (b) injury to the abdomen. He has undergone surgery for the left leg, plates and screws are implanted. Further, he has undergone abdomen operations for jejunal perforation 1 x 1 cm., and about 1 feet from D.J. flexure was done. The doctor who has treated the claimant had assessed the disability to an extent of 48% to the lower limb and disability to an extent of 40% to the abdomen. The Tribunal disbelieving the assessment of disability, had taken 25% disability to the whole body. At the time of accident, he was aged about 51 years, applying the multiplier 11, awarded compensation under the following heads:

Pain, injuries and suffering Rs. 50,000.00

Medical expenses and other incidental expenses Rs. 45,000.00

Loss of earning during the period of treatment Rs. 17,500.00

Loss of future earning capacity Rs. 1,15,500.00

Future medical expenses Rs. 15,500.00

Loss of future unhappiness and loss of amenities and pleasure in future life Rs. 30,000.00

Total: Rs. 2,73,000.00

As on the date of accident, the Insurance Policy was in force. Hence, the liability was fastened on the Insurance Company to compensate the claimant. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal has filed this appeal.

Mr. Suresh M. Latur, learned Counsel appearing for the appellant, contended that the judgment and award passed by the Tribunal is contrary to law. In the accident, the appellant has sustained (a) comminuted fracture of type-III B both the bones of lower ⅓rd of left leg and (b) abdomen injuries. He has undergone surgery for both the injuries. Internal fixation has been made for the left leg. He has undergone abdomen surgery of exploratory leporatomy. Though the doctor assessed the disability to an extent of 40%, the Tribunal has taken the disability to an extent of 25% which is on the lower side. In view of the injury sustained, he cannot do the work of a driver or any other work. The loss of earning capacity awarded by the Tribunal, taking the income of Rs. 3,500 p.m. is lower side. Further the compensation awarded towards loss of amenities of life and loss of income during the laid up period is also lower side. Further Rs. 50,000 awarded towards pain and suffering requires enhancement. He relied upon a judgment reported in 2011 ACJ 2436 in the case of Ramahcahndrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.; 2014 ACJ 2743 in the case of Basappa v. T. Ramesh and Another; 2011 ACJ 1434 in the case of Nagarajappa v. Divisional Manager, Oriental Insurance Co. Ltd. and also an unreported judgment in MFA No. 7642/2009 disposed of on 6.11.2012 contending that a sum of Rs. 3,500 taken towards monthly income of the claimant who was a driver by profession is lower side. Further, the Hon''ble Supreme Court has awarded a sum of Rs. 1,00,000 towards loss of amenities of life; Rs. 1,00,000 towards pain and suffering and Rs. 1,00,000 towards permanent disability and sought for enhancement of compensation.

On the other hand, Mr. O. Mahesh, learned Counsel appearing for the second respondent, argued in support of the judgment and award and contended that the Tribunal after appreciating the oral and documentary evidence and taking into consideration the relevant documents has awarded just and fair compensation. Though the doctors assessed the disability to an extent of 40%, they are not the treated doctors and their evidence cannot be believed with regard to disability. Hence, sought for dismissal of the appeal.

Having heard the learned Counsel for the parties, the only point that arises for consideration in this appeal is whether the claimant is entitled for enhanced compensation?

The records produced by the parties clearly disclose that while the appellant was crossing the road on Bettahalasuru cross-junction, the motorcycle ridden by its rider in a rash and negligent manner dashed against the appellant, due to which he fell down and sustained injuries. Initially he had taken treatment in Shiradi Sai Hospital at Bengaluru and thereafter he took treatment at Bowring and Lady Curzon Hospital. He claims that he was in the hospital for a period of 117 days and undergone two surgeries. The evidence of P.W.2 i.e. Dr. Rajanna, an Orthopaedic Surgeon of Bowring and Lady Curzon Hospital, clearly disclose that the claimant has sustained type-III B compound fracture of both the bones of left leg. He has undergone surgery. Internal fixation has been made. Even after surgery, there is a limited movement of ankle and knee and there is shortening of the lower limb by 3 cms. He has assessed the disability to an extent of 40% to the whole body. In the cross-examination he has admitted that shortening of the leg has not been mentioned in the hospital records. He has denied the suggestion that if the implants are removed, there will be no restriction in the movement. He also admitted that there is no mentioning of infection in the in-patient records. P.W.3 Dr. Shankaregowda of Bowring and Lady Curzon Hospital has stated that the claimant has got wound scar over the abdomen about 15 cms. He has undergone abdomen surgery and removed jejunal perforation of 1 x 1 cm, about 1 feet from D.J. flexure was done and skin grafting was also made. The doctor assessed the disability to an extent of 40% to the whole body. The Tribunal has taken the disability to an extent of 25% which is on the lower side. Taking into consideration the injuries sustained to the left leg and the abdomen and evidence of the doctors, it is appropriate to take 20% disability to the left leg and 10% disability to the abdomen, in all 30% to the whole body.

Admittedly, the accident occurred in the month of December, 2008. The income of Rs. 3,500 p.m., taken by the Tribunal is on the lower side. The Hon''ble Supreme Court in a judgment reported in AIR 2011 SC 2951 in Ramachandrappa case (supra), had taken the income as Rs. 4,500 p.m. for the accident occurred in the year 2004. In the instant case, the accident is of the year 2008. Though the claimant has failed to prove that he was a driver by profession, the Tribunal ought to have taken reasonable income as Rs. 5,000 p.m., while awarding compensation. Further the compensation awarded towards loss of future happiness and loss of amenities of life is also on the lower side. Further, the loss of income during the laid up period is also lower side, hence, compensation is required to be modified. Taking the monthly income of the claimant as Rs. 5,000 p.m., disability to an extent of 30% to the whole body, applying the multiplier 11 having regard to the age of the claimant as 51 years, the claimant is entitled for compensation of Rs. 1,98,000 as against Rs. 1,15,500 awarded by the Tribunal. Taking the income of Rs. 5,000 p.m., the claimant was out of employment for a period of 5 months. Hence, he is entitled to another sum of Rs. 7,500 in addition to what has been awarded by the Tribunal towards loss of income during the laid up period and a sum of Rs. 30,000 towards loss of amenities of life in addition to Rs. 30,000 awarded by the Tribunal, since the claimant has to lead his remaining life with the disability of 30%. The compensation awarded under other heads stand undisturbed. Hence the claimant is entitled to enhanced compensation of Rs. 1,20,000 with interest at the rate of 6% p.a. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The judgment and award dated 2nd August, 2010 made in MVC No. 2106/2009 passed by the Motor Accident Claims Tribunal, Bengaluru is modified and the claimant is entitled to enhanced compensation of Rs. 1,20,000 with interest at the rate of 6% p.a.