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Judgment
H.S. Kempanna, J.—Though this matter is listed for admission, with the consent, of the learned Counsel appealing for the respective parties, it is taken, up for final disposal.
This appeal is by the claimant: seeking for enhancement of compensation in respect of the injuries sustained in a motor accident.
The brief facts of the case are:
The Appellant/claimant filed claim petition claiming compensation in respect of the bodily injuries which he sustained in a motor accident that took place on 10.1.2007 at about 10.00 a.m. while he was on SES road at Peenya 1st stage, Bangalore, involving the TVS moped bearing Reg. No. KA04 EQ 7248 insured with the 1st Respondent arid owned by the 2nd Respondent at the relevant, point, of time. In the impugned accident, he sustained severe injuries to his right leg for which he took treatment in two major hospitals by spending huge money. Despite the same, he was not. completely cured of his injuries, which has resulted in loss of income in the business which he is carrying on. Hence, on all these grounds, he sought for enhancement of compensation,
After service of notice, the 2nd Respondent-owner remained absent. Hence he was placed exporter before the Tribunal The 1st Respondent insurer of the offending vehicle appeared and contested the claim of the claimant, it was contended that the accident in question has not taken place on account of the fault of the rider of the offending TVS moped. On the other hand it took place on account of the negligence of the rider of the motor cycle in which the Petitioner was coining, it was further contended that the rider of the offending TVS moped did not possess valid and effective driving licence. As such, there is breach of terms and conditions of the policy. Further it was also contended that the claim petition is bad. for non-joinder of necessary parties in as much as the claimant has not impleaded the rider, owner and the insurer of the motor cycle in which he was coming at the time of the accident. Accordingly, they sought for dismissal of the petition as against them.
On the basis; of the above pleadings, the Tribunal framed in all three issues
The claimant in support of his claim got himself examined as P.W.1 and the doctor, who examined him as P.W.2. He produced in all 13 documents, which came to be marked as Exs. P. 1 to 13. On behalf of the Respondent/insurer, they did not lead any oral evidence nor produced any documents.
The Tribunal on considering the oral and documentary evidence on record held that, the accident in question took place solely on account of the fault, of the rider of the TVS moped. Accordingly, the claimant. has established actionable negligence. Further the Tribunal looking to the evidence of the claimant, the doctor-P.W.2/Medical Officer who has examined him and the medical document placed on record awarded total compensation of Rs. 1,05,000/- with interest at 6% per annum from the date of the petition till realization under various heads. It. further saddled the liability of payment of compensation on the 1st 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 not awarded just and reasonable compensation towards the loss of income during the laid up period, loss of amenities and it has also not awarded any compensation towards the loss of future income despite the evidence of P.W.2 the Medical Officer to the effect that he has permanent disability to an extent of the 14% to his whole body on account of the injuries sustained in the impugned accident. Hence, a case for enhancement is made out.
Per contra, learned Counsel appealing for the contesting insurer supported the impugned judgment and award of the Tribunal.
Taking the rival submissions and the papers that are made available at the time of hearing, the point, that arises for my consideration is:
Whether the Appellant - claimant has made cut a case for enhancement?
The facts are not in dispute. The Appellant-claimant having met with accident, injuries sustained, treatment taken, amount spent for the same are also not to dispute. According to the claimant, in the impugned accident, he has sustained comminuted fracture of mid third of tibia fibular right with plafond fracture of light tibia with fat embolism syndrome. He took treatment for the said injuries in two major hospitals viz., Hosmat Hospital and Ashwini Hospital for the period of 12 days. This testimony of the claimant is further fortified from the evidence of the Medical Officer-P.W.2 who has examined and treated him coupled with the wound certificate which is at Ex.P.6 and discharge summary-Ex. P.9 placed on record. Taking all these aspects into consideration, the Tribunal has awarded a sum of Rs. 40.000/- towards injury, pain and suffering. No grievance in respect of the same was made before this Court. As the same is just and reasonable, it does not call for any modification,
Further the Tribunal has not awarded any compensation towards the medical expenses on the ground that the claimant has been reimbursed of the medical expenses in view of the Mediclaim Policy that he had taken. In this connection also the learned Counsel appearing for the Appellant did not dispute the said fact and also did not make out any other ground for awarding any additional compensation towards the medical expenses.
But. the Tribunal has awarded a sum of Rs. 5,000/-only towards other incidental expenses. It has not specifically stated that the same is awarded towards conveyance, nourishment and attendant charges. As already pointed out, the claimant has taken treatment for the injuries sustained in the hospital for 6 days at the first instance, during which period he has also undergone surgery. Having regard to the nature of the injury he has sustained, be must have taken follow-up treatment also. That automatically follows that, he must have spent some considerable amount towards conveyance, nourishment and attendant charges. The accident has taken place on 10.1.2007. The claimant is an engineering graduate carrying on automobile business. Therefore, taking all these aspects into consideration, a further sum of Rs. 5,000/- is awarded in addition to Rs. 5,000/- awarded by the Tribunal towards incidental expenses towards conveyance, nourishment and attendant: charges.
The claimant has claimed that he is a businessman carrying on business in automobiles. Though he has claimed his income is Rs. 10,000/- per month, the Tribunal on the basis of the material made available before it and considering the evidence of the claimant, has determined his income at Rs. 5,000/- per month. No grievance seriously was made out before this Court in respect of the same. Taking the said income of Rs. 5,000/-per month, the Tribunal has awarded a sum of Rs. 20,000/-towards loss of income during the laid up period for a period of 4 months.
Having regard to the nature of the fracture that the claimant has sustained due to which he has suffered pain and agony, he could not have attended, to his normal work for a period of at least 6 months and not 4 months as held by the Tribunal. Hence he should be compensated towards loss of income for the said period. As already pointed out, the Tribunal, has awarded a sum of Rs. 20,000/-for 4 months. In addition in view of what is stated to above, he is awarded a sum of Rs. 10,000/- towards loss of income during the laid up period, Thus in ail a. sum of Rs. 30,000/- is awarded as against Rs. 20.000/- awarded by the Tribunal towards loss of income (luring the laid up period.
Further the Tribunal has awarded a sum of Rs. 25,000/- towards loss of* amenities. The evidence on record more particularly that of P.W.2 - the Medical Officer reveals that the claimant has sustained permanent functional disability of his right lower limb to an extent of 40% and permanent disability to the whole body to the extent of 14%, Admittedly he has taken treatment in the hospital for 6 days and he has also undergone surgery. According to P.W.2, he also requires future medical treatment. In view of the nature of injuries that he has sustained, the disability that he has suffered, be has to undergo discomfort and. unhappiness in future also. Taking these aspects into consideration the claimant is awarded a further sum of Rs. 10,000/- in addition to Rs. 25,000/-awarded. by the Tribunal towards loss of amenities.
The Tribunal has awarded a sum. of Rs. 15,000/-towards future medical expenses relying on the testimony of P.W.3, the same also does not call for any modification in this appeal.
Though the learned Counsel appearing for the Appellant vehemently submitted that the claimant is entitled, to compensation towards loss of future income, since the material on record reveals trial: he is carrying on his business, it follows that there is no loss of future income, in view of the compensation that has been awarded as stated to above, in the facts and circumstances, the claimant is not entitled to any compensation towards loss of future income.
Thus the claimant in all is entitled to a total compensation of Rs. 1,30,000/- with interest at 6% per annum 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 of the Tribunal in so for as the Appellant/claimant passed in MVC No. 2091 of 2007 by the IX Additional Judge, Court of Small Causes, MACT-7, Bangalore City, is modified and the Appellant/claimant is awarded a total compensation of 1,30,000/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 1,05,000/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal, The enhanced compensation comes to Rs. 25,000/- which carries interest at 6% p.a. from the date of the petition till realisation;
iii) The first Respondent-insurer shall deposit the entire enhanced compensation with interest before the Tribunal within four weeks front the date of receipt of the copy of the judgment and award
iv) On deposit of the enhanced compensation, with interest, the same is ordered to he released in favour of the Appellant-claimant. Office to draw the award accordingly,