Nagesh vs R. Kumaresh and The Oriental Insurance Co. Ltd.

H.S. Kempanna, J.—Though this matter is listed for admission, with consent of learned Counsels for respective parties as records have also been received, it is taken up for final disposal.

This is claimant''s appeal seeking for enhancement of compensation in respect of the injuries which he has sustained in a motor accident.

This appeal is directed against the common judgment and award dated 24.7.2009 passed in MVC No. 332/2007 by the Prl. Civil Judge (Sr. Dn.) and MACT. Mandya.

For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal.

The brief facts of the case are:

The Petitioner/claimant is aged about 30 years an agriculturist and coconut plucker by profession earning more than Rs. 5,000/- p.m. He was hale and healthy as on the date of the accident.

On 15.1.2007 at about 12.00 noon the Petitioner and the co-claimant were proceeding in Male Mahadeshwara bus bearing No. TN-3/H. 1177 on Halagur-Channapatna road. On account of the rash and negligent driving of the bus by its driver, he lost control over the same and dashed against the road guard stone due to which, the bus turned-turtle to the left side resulting in accident in which the claimant sustained injuries which comprised of fracture. After the accident, he was removed to the Govt. hospital where he took treatment for a period of 9 days as inpatient by spending huge money. Despite the same, he was not completely cured of the injuries sustained in the accident. Hence, he is unable to carry on his avocation effectively as he was doing prior to the accident which has resulted in loss of income to him. Hence, he filed the petition u/s 166 of the M.V. Act claiming compensation against the Respondents.

After notice, the first Respondent-owner remained absent. Hence, he was placed exparte. The second Respondent-insurer contested the petition. The second Respondent contended that the accident has not taken place on account of the fault of the driver of the offending bus. Further, they also contended that the driver did not posses valid and effective driving licence to drive the vehicle and as such there is breach of terms and conditions of policy committed by the first Respondent-owner. They have also denied all other averments made by the claimant, in the petition. In sum and substance, they contended that as the accident has not taken place due to the fault of the driver of the bus, they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition.

On the basis of the above pleadings, the Tribunal framed in all three issues.

The Petitioner/claimant in support of his case got himself examined as P.W. 1 and the doctor who treated him as P.W. 5 apart from three other co-claimants who were examined as P.Ws. 2 to 4. In all the claimants produced 16 documents which came to be marked as exhibits P1 to P16. On behalf of the Respondents, they did not lead any oral evidence, on the other hand, the second Respondent-insurer got produced one document i.e. the copy of the policy which came to be marked as Ex. R1.

The Tribunal thereafter on 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 bus and as such the claimant has established actionable negligence. Further, the tribunal looking into the evidence of the Petitioner P.W. 1 and the doctor P.W. 5 who has examined him awarded a total compensation in a sum of Rs. 43,000/- under various heads with interest at 6% p.a. from the elate of the petition till realisation. It further ordered the entire compensation with interest be paid by the second Respondent insurer.

The Appellant/claimant, being aggrieved of the quantum of compensation is in appeal before this Court.

The learned Counsel for the Appellant/claimant submitted that the Tribunal has erred in not awarding commensurate compensation to the claimant towards conveyance, nourishing food and attendant charges, loss of amenities and it has not awarded any compensation towards loss of future income and hence, a case for enhancement is made out.

Per contra, the Counsel for the Respondent No. 2-insurer supported the impugned judgment and award passed by the Tribunal.

Taking the rival submissions into consideration and the papers made available to me at the time of hearing, the point that arises for my consideration is:

Whether the claimant has made out a case for enhancement?

The facts are not in dispute. The claimant having met with an accident, injuries sustained, treatment that he has taken and the amount spent are not in dispute. The Tribunal considering the same has awarded a sum of Rs. 20,000/- towards pain and suffering having regard to the compressed fracture of T-12 vertebra sustained by the Petitioner which is fortified from the testimony of P.W. 5, The same appears to be just and proper and does not call for any interference.

Further, the Tribunal has awarded a sum of Rs. 2,000/- towards medical expenses. No grievance was made in respect of the same before this Court, hence the same also does not call for any modification.

Further, the Tribunal taking the income of the claimant at Rs. 3,000/- p.m. has awarded Rs. 9,000/- towards loss of income for a period of three months having regard to the fracture that he has sustained and his avocation. The same also appears to be just and proper and does not call for any modification.

However, the Tribunal has awarded a sum of Rs. 2,000/- towards conveyance, nourishing food and attendant charges. As already pointed out, the Petitioner has suffered compression fracture of T-12 vertebrae. That is fortified from the evidence of P.W. 5- Medical Officer. He has taken treatment in the hospital for 9 days/Taking the same into consideration claimant is awarded a sum of Rs. 5,000/- towards conveyance, nourishing food and attendant charges as against Rs. 2,000/- awarded by the Tribunal.

The Tribunal has awarded only a sum of Rs. 10,000./- towards loss of amenities. Having regard to the nature of injury and the discomforts that, the claimant has to suffer, he should be awarded an additional sum of Rs. 5,000/- towards loss of amenities in addition to Rs. 10,000/- awarded by the Tribunal towards loss of amenities.

The next aspect to be considered is loss of future income which the Tribunal has not adverted to in its judgment. The claimant is aged 30 years, an agriculturist and a coconut plucker by profession. His income has been determined at Rs. 3.000/- p.m. by the Tribunal. In the facts of the case, the same appears to be just and proper and it does not call for interference. The evidence of P.W. 5 Medical Officer discloses the Petitioner has suffered compression fracture of T-12 vertebrae. The doctor has stated in his evidence that the claimant has suffered disability to the extent of 20% for the said fracture. But he has not stated what would be the disability when compared to the whole body. In the facts of the case, having regard to the nature of fracture the claimant has sustained, it can safely be taken that he has suffered disability to the extent of 10%. Having regard to his age, the proper multiplier that becomes applicable would be 17. Taking these factors into consideration, the claimant would be entitled to Rs. 61,200/- ( Rs. 3,000 x 12 x 10/100 x 17) as compensation towards loss of future income. Thus, the claimant in all is entitled to total compensation of Rs. 1,12,200/- with interest at 6% p.a. from the date of petition till realisation. The break-up is as follows:

Towards pain and suffering Rs. 20,000/-

Towards Medical expenses Rs. 2,000/-

Towards conveyance, nourishing food and attendant charges Rs. 5,000/-

Towards loss of income during laid up period Rs. 9,000/-

5, Towards loss of amenities, discomforts and unhappiness Rs. 15,000/-

Towards Loss of future income Rs. 61,200/-

Total Rs. 1,12,200/-

Thus the Appellant/claimant is entitled to total compensation of Rs. 1,12,200/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 43,000/- awarded by the Tribunal.

The enhanced compensation conies to Rs. 69,200/- with interest at the rate of 6% p.a. from the date of the petition till realisation. Accordingly, the appeal has to succeed in part.

In the 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 is modified and the claimant is awarded total compensation of 1,12,200/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 43,000/- awarded by the Tribunal with interest at 6% p.a. from the date of the petition till realisation. The enhanced compensation comes to Rs. 69,200/- with interest at 6% p.a. from the date of the petition till realization.

iii) The second Respondent-insurance Company 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) On deposit of the enhanced compensation with interest, 50% with proportionate interest shall be deposited in the name of the Appellant in any nationalised/scheduled bank for a period of five years renewable, by further period of five years, He is entitled to withdraw the interest that accrues on the said deposit periodically. The balance 50% with proportionate interest is ordered to be released in favour of the Appellant/claimant.

Office to draw the award accordingly.