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Judgment
Dr. Bhakthavatsala, J.—Learned counsel appearing for the appellant prays for enhancement of compensation. Learned counsel appearing for respondent No. 2 submits that the Tribunal has awarded adequate compensation and there is no good ground for enhancement.
Perused the L.C.R.
The Tribunal has fixed income of the claimant at Rs. 2,500/- per month and permanent disablement of 20% to the whole body. The Tribunal has applied multiplier 15 on the ground that the claimant was 35 years old. The Tribunal has awarded compensation in favour of the claimant as under:
1) Pain and suffering
Rs. 30,000/-
2) Medical, conveyance, special diet & attendant charges
Rs. 10,000/-
3) Loss of future earning
Rs. 90,000/-
4) Loss of earning during the period of treatment
Rs. 10,000/-
5) Loss of amenities
Rs. 20,000/-
Total:
Rs. 1,60,000/-
The Tribunal has fixed contributory negligence on the appellant/claimant who was the pedestrian to the extent of 10%. The driver of tempo was not examined to prove that there was contributory negligence on the part of the claimant. Merely because claimant was a pedestrian, it cannot be said that he was negligent to the extent of 10%. It is pertinent to mention that it is the duty of the drivers of the motor vehicles to drive motor vehicle slowly if persons are on the road and avoid accident. But in the instant case, driver of the vehicle was not examined to prove that he has taken proper core and caution while driving the vehicle. Under such circumstances, fixing contributory negligence to the extent of 10% on the part of the claimant is not correct. In our view, the accident occurred solely due to the rash and negligent driving by the driver of the tempo and in that accident, the claimant sustained injuries.
So as to prove that the claimant sustained permanent disablement, claimant has got examined Dr. Krishna as P.W. 3. As per Ex. P-4 - wound certificate, claimant sustained fracture of upper 1/3rd of right tibia apart from one simple injury, The claimant was treated in Venkateswara Health Centre at Bangalore, Ex. P-8 is the chest x-ray. Claimant has taken treatment in Victoria hospital at Bangalore. It is the case of the claimant that he was 35 years old earning Rs. 3,000/- per month as coolie. There is no material placed on record to show that claimant underwent any surgery and he was treated conservatively. Keeping in view that the accident occurred on 24-8-2004 and he is the resident of Neraluru, Anekal Taluk, Bangalore District, his income can be safely fixed at Rs. 3,000/- per month, In our view, claimant is entitled for compensation towards loss of earning atleast for a period of three months. We award compensation as under:
(1) Pain and suffering
Rs. 30,000/-
(2) Attendant, conveyance, Special Diet and incidental expenses
Rs. 10,000/-
(3) Loss of earring during the period of treatment and rest (3000 x 3)
Rs. 9,000/-
(4) Loss of future flaming (3000x16x12x20%)
Rs. 1,15,200/-
(5) Loss of amenities
Rs. 20,000/-
Total
Rs. 1,84,200/-
In the result, we pass the following order:
The appeal is allowed in part. The appellant is entitled to compensation of Rs. 1,84,200/- as against Rs. 1,60,000/- awarded by the Tribunal along with costs and interest at the rate of 6% p.a. from the date of petition till the date of realization, Accordingly, impugned judgment and award are modified. We further hold that appellant/claimant is entitled to recover the entire compensation along with costs and interest from respondents-1 and 2 whose liability is joint and several. Respondent No. 2/insurance company is directed to deposit the entire compensation amount along with costs and interest with the Tribunal within three months from today.