Rajarao S. vs MRC Constructions

N.K. Patil, J.—This appeal by the claimant is directed against the judgment and award dated 4th December 2013 passed in MVC No. 1677/2013 on the file of the XIII Additional Small Cause Judge and Member, Motor Accident Claims Tribunal, Bangalore, (for short, ''Tribunal''), for enhancement of compensation on the ground that, the compensation of Rs. 2,88,000/- with interest @ 8% p.a. awarded in favour of the claimant as against his claim for Rs. 8,00,000/-, is inadequate.

The appellant claims to be aged about 45 years and hale and healthy prior to the date of accident. That the occurrence of accident at about 6:30 P.M., on 05-02-2013, when the appellant was standing in front of SMS batteries, ring road, near cross road from North to South direction, on account of rash and negligent driving by the driver of Innova Car bearing Registration No. KA-52/M-3636, is not in dispute. Due to the impact, the appellant has sustained grievous injuries and was immediately shifted to Hospital.

On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 8,00,000/- against the Insurance Company and another. The said claim petition had come up for consideration before the Tribunal on 4th December, 2013. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding compensation of Rs. 2,88,000/- with interest at 8% per annum from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed the appeal before this Court, seeking enhancement of compensation.

I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant.

Learned counsel appearing for appellant at the outset vehemently submitted that, the Tribunal grossly erred in not assessing the reasonable income of the appellant, for the reason that the appellant was aged about 45 years, working as Autorickshaw driver, earning a sum of Rs. 10,000/- per month and hale and healthy prior to the date of accident. The accident is of the year 2013. Therefore, notional income of a sum of Rs. 5,000/- per month assessed by Tribunal is on the lower side and liable to be re-assessed. Further, he submitted that the Tribunal erred in not awarding reasonable compensation towards loss of income during treatment period and loss of amenities, discomfort and unhappiness, loss of future earnings etc. He further submitted that the Tribunal erred in re-assessing the whole body disability at 10%, when in fact, PW3, Doctor has suffered permanent disability to the right lower limb at 40% and 20% to whole body. Therefore, he submitted that reasonable whole body disability may be re-assessed and the impugned judgment and award passed by Tribunal may be modified by enhancing just and reasonable compensation.

After hearing the learned counsel appearing for appellant, after perusal of the impugned judgment and award passed by Tribunal, and after due consideration of the entire material available on file, it can be seen that the Tribunal, after assessing the oral evidence of PWs 1 to 3 and documentary evidence at Exs. P1 to P17, has rightly assessed the income of the appellant at Rs. 5,000/- per month and awarded just and reasonable compensation towards loss of income during treatment period and loss of future income, for the reason that even though the appellant has contended that he is an Auto Rickshaw driver, he has not produced any documents in support of his avocation as Driver to prove the income. However, considering Ex. P-12, his driving license, his age, the Tribunal has rightly assessed the notional income of the appellant at Rs. 5,000/- p.m.

Further, it can be seen that the Doctor has assessed the functional disability at 40% and whole body disability at 20%. The same is a bit exaggeration and not a proper assessment. Actually, the whole body disability would be 1/3rd of functional disability and in this case, 1/3rd of 40% would be 13.33% and the Tribunal has rounded off the same to 10%, considering the nature of injuries sustained, etc. Therefore, the Tribunal is justified in assessing the whole body disability at 10% and the same being just and proper, it is upheld.

It is significant to note, as per the documentary evidence produced by the appellant, he has suffered injuries in the Road Traffic Accident on 05-02-2013 at about 6.30 p.m. and was taken to Hillside hospital, where he was treated as in-patient from 05-02-2013 to 10-02-2013. As per wound certificate, he has suffered comminuted fracture of proximal tibia which is a grievous one. He underwent surgery for the fracture and discharged on 10-02-2013 from hillside hospital. Again he was admitted to Victoria hospital on 04-04-2013 with infected implants and underwent surgery for the same and was discharged on 09-04-2013. Therefore, all the documentary evidence coupled with the oral evidence of PWs 1 and 3, clearly establish that the appellant has suffered fracture of right tibia and operated twice for surgery for fracture and removal of infected implants. To prove the medical expenditure, the appellant has examined himself and produced Ex. P-10, the hospital and medical bills. All the bills are of hillside hospital and Victoria hospital. Some of the medical bills are the pharmacy bills of the said hospitals and other medical bills are of private medical stores in the printed form but duly signed and in the name of appellant.

Considering the nature of injuries, period of treatment as in-patient, surgeries underwent by the appellant and also the fact that one of the Hospital is a Private hospital, the Tribunal is justified in awarding a sum of Rs. 60,000/- towards medical expenses as against the medical bills amounting to Rs. 55,968.80/- produced by the appellant.

Therefore, having regard to the facts and circumstances of the case and also the totality of the case on hand, I am of the view that the Tribunal has rightly awarded compensation under all the heads and interference in the well considered and well reasoned judgment and award is not called for.

Therefore, having regard to the facts and circumstances of the case, the appeal filed by appellant is liable to be dismissed as being devoid of merit. Accordingly, it is dismissed.

Office to draw award, accordingly.