Palaksha vs Mahantesh and Others

B. Manohar, J.—The appellant is the claimant in MVC No. 1150/2010 on the file of the Addl. Motor Accident Claims Tribunal, Bailhongal (hereinafter referred to as ''the Tribunal'', for short). Being dissatisfied with the quantum of compensation awarded by the Tribunal by its judgment and award dated 18.08.2011, the claimant has filed this appeal seeking enhancement of the compensation.

It is the case of the claimant that, on 6.5.2010, at about 4.00 pm, while he was standing by the side of a motorcycle bearing registration No. KA34/S-3713 in front of P.L.D. Bank, Bailhongal, on the left side of the road, a passenger tempo bearing registration No. KA-22/7960 driven by its driver in a rash and negligent manner came at a high speed and dashed to claimant from backside. In view of that the claimant has sustained grievous injuries. Initially the claimant took treatment at the Govt. Hospital, Bailhongal, and thereafter he has taken treatment from Dr. C.D. Kulkarm, Bailhongal. Due to the accident, the claimant has sustained fracture of middle 3rd of right tibia and fibula, fracture of right greater tuberosity of right humorous and injuries to other parts of the body. He underwent operations. He claimed that he spent more than Rs. 50,000/- for his treatment and hence sought for compensation.

The 1st respondent - owner of the offending vehicle, though served with the notice remained un-represented. The 2nd respondent-Insurance Company filed written statement denying the entire allegations made in the claim petition and also disputed the age, occupation, income of the claimant and nature of injuries suffered by the claimant. The specific contention of the insurer was that, due to the negligence of the claimant, the accident had occurred and hence the claimant is not entitled for any compensation.

On the basis of pleadings of the parties, Tribunal framed the necessary issues. The claimant in order to prove his case examined himself as P.W. 1 and got marked documents at Exs. P1 to P45. He examined the doctor, who treated him as P.W. 2. On behalf of the respondent-Insurance Company, the insurance policy of the offending vehicle was marked as Ex. R1.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration the charge sheet, MVA report and copy of the panchanama held that, due to the rash and negligent driving of the passenger tempo, the accident had occurred causing injuries to the claimant and hence the claimant is entitled for compensation. With regard to the quantum of compensation is concerned, taking into consideration the injuries sustained by the claimant and the evidence of the doctor who treated the claimant, and taking into consideration the injuries suffered by the claimant, which is evidenced by the wound certificate and mal-uinon of the fracture of tibia and fibula, the Tribunal considered the disability to an extent of 15% and by taking the income of the claimant at Rs. 4,000/- p.m. awarded a sum of Rs. 2,66,800/- with interest at 6% p.a. The claimant being dissatisfied with the quantum of compensation awarded, filed this appeal.

Sri. Hanumant R. Latur, learned counsel appearing for the appellant contended that, the claimant is an agriculturist owning vast extent of land. He was earning more than Rs. 3,00,000/- per year. The meager income taken by the Tribunal at Rs. 4,000/- per month is on the lesser side. Further, though the doctor has assessed the disability to an extent of 55%, the Tribunal has taken the whole body disability only at 15%, which is contrary to law. In view of the mal-umon of the fracture, the claimant has undergone operations. The sum of Rs. 24,000/- awarded towards the loss of income during laid up period is also on the lower side. Further, a sum of Rs. 4,500/- awarded towards attendant charges, nutrition and other incidental charges is on the lower side and sought for enhancement of compensation.

On the other hand, Sri. Nagaraj C. Kolloori, learned counsel appearing for the 2nd respondent argued in support of the judgment and award passed by the Tribunal and contended that as the compensation awarded by the Tribunal is in accordance with law, the claimant is not entitled for any enhancement of compensation and sought for dismissal of the appeal.

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

The records disclose that, the claimant met with a road traffic accident occurred on 06.05.2010 in view of the rash and negligent driving of the passenger tempo and sustained fracture of middle 3rd of right tibia and fibula and fracture of right tuberosity of humorous and other grievous injuries. He was inpatient from 06.05.2010 to 18.05.2010 and he has undergone operations. In view of the mal-union of fracture, the doctor, who treated him has assessed the disability to an extent of 55% to the particular limb. However, the Tribunal has taken the disability to an extent of 15% to the whole body, which is contrary to law. The records produced by the claimant clearly disclose that he is an agriculturist by profession and owns more than 11 acres of land. The income of Rs. 4,000/- p.m. taken by the Tribunal is on the lower side. In view of the accident, he was out of agricultural work for more than 6 months. The compensation awarded towards loss of income during laid up period and also towards attendance charges are on the lower side.

Hence I am of the opinion that, taking into consideration the income of the claimant as Rs. 5,500/- per month, the disability to the whole body to an extent of 18% and the age of the claimant as 35, the claimant is entitled for a sum of Rs. 1,78,200/- towards ''loss of future income'' as against Rs. 1,08,000/- awarded by the Tribunal. Further, taking into consideration income as Rs. 5,500/- per month, he is entitled for another sum of Rs. 9,000/- towards ''loss of income during laid up period''. Further the claimant was an inpatient in the hospital for more than 13 days and he took treatment for 6 months thereafter. Hence he is entitled for another sum of Rs. 10,500/- towards ''attendant and nourishment charges''. In all, the claimant is entitled for an enhanced compensation of Rs. 89,700/- with interest at 6% p.a. Accordingly, I pass the following order:

ORDER

"The appeal is allowed in part. The claimant is entitled for the enhanced compensation of Rs. 89,700/- with interest at 6% p.a. Out of the enhanced amount, 50% shall be kept in a fixed deposit in any nationalised bank for a period of 5 years."