Ramachandra vs Shekappa

B. Manohar, J.—The Appellant, who is the claimant in MVC No. 465/2010, being aggrieved by the judgment and award dated 28.11.2011 passed by the Motor Vehicle Accident Claims Tribunal IX, Mudhol (''MACT'' for short) filed this appeal.

The appellant filed the claim petition contending that, on 06.09.2008 at about 8.00 am, he was travelling in a Tom Tom Auto Rickshaw bearing registration No. KA29-5746 from Gaddanakeri to Kataraki village. When the Auto Rickshaw, in which the claimant was travelling came near Ghataprabha Canal, another Tom Tom Auto Rickshaw bearing registration No. KA29-6436 came from the opposite direction in a rash and negligent manner and lost control over the driving, which results in dashing against the Tom Tom Auto Rickshaw bearing registration No. KA29-5746. Due to the said accident, the claimant sustained fracture of the right leg and injuries to other parts of the body. He was admitted to Kumareshwar Hospital, Bagalkot and undergone operations. Steel rod was implanted. He was inpatient for a period of 45 days and spent more than Rs. 80,000/- towards the treatment. Prior to the accident, he was doing business and earning more than Rs. 4,500/- per month. At the time of accident, he was aged about 50 years and sought for compensation of Rs. 6,10,000/-.

The owner of the offended Auto Rickshaw admitted the accident and contended that the vehicle is covered by insurance and hence the insurer has to compensate the claimant and sought for dismissal of the claim petition as against the owner of the vehicle.

The 2nd respondent Insurance Company filed the written statement and denied the entire averment and contended that the Tom Tom Auto Rickshaw bearing Registration No. KA29-6436 is a commercial vehicle carrying goods. The owner of the vehicle violated the conditions of the policy. Further, it was contended that driver of the Tom Tom Auto Rickshaw was not holding a valid and effective driving licence at the time of the accident and hence the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the MACT framed the necessary issues. The claimant was examined himself as P.W. 1 and got marked the documents at Exs. P1 to P114. The doctor who has treated the claimant was examined as PW2 and got marked the document at Exs. P115 and P116. The Insurance Company has examined its officer as R.W. 1 and got marked the document at Exs. R1 and R2.

The MACT, after considering the oral and documentary evidence let in by the parties and taking into consideration the IMV report, copy of the FIR and spot panchanama, held that the accident occurred due to the rash and negligent riding of the offending Tom Tom Auto Rickshaw and the claimant is entitled for the compensation. With regard to the quantum of compensation is concerned, taking into consideration the wound certificates and the evidence of the doctors and taking into consideration the percentage of disability to the extent of 20%, the Tribunal has awarded a compensation of Rs. 1,90,000/- with interest at 9% p.a. from the date petition till the date of deposit. The claimant being dissatisfied with the quantum of compensation awarded with regard to the pain and suffering, future loss of income and future medical expenditure, filed this appeal seeking for enhancement of the compensation.

Sri. Harish S. Maigur, the learned counsel appearing for the appellant contended that the compensation of Rs. 30,000/- awarded towards the pain and suffering is on the lower side due to the comminuted fracture of supra and inter condylar and fracture of the right femur. The appellant was inpatient for a period of 45 days and he has undergone operations. Steel rod was implanted. Though the doctor has assessed the permanent physical disability to an extent of 60% to the right lower limb, the Tribunal has awarded a meager compensation of Rs. 30,000/- towards pain and suffering. Further, the income of Rs. 3000/- per month taken by the t. is also on the lower side. The accident occurred in the year 2008. Even a coolie can earn more than Rs. 3,000/- during the said period. Further, no compensation is awarded towards future medical expenses, though steel rod was implanted and sought for enhancement of compensation.

On the other hand, Sri. R.S. Arani, learned counsel appearing for the 2nd respondent argued in support of the judgment and award passed by the Tribunal and sought for dismissal of the appeal.

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

The records clearly disclose that, due to the rash and negligent riding of the offended Tom Tom Auto Rickshaw, the accident occurred on 06.09.2008. The claimant sustained grievous injuries in the accident and has undergone surgery at Kumareshwar Hospital, Bagalkot. The claimant has sustained permanent disability to an extent of 20% to the whole body. The compensation of Rs. 30,000/- awarded by Tribunal towards pain and suffering is on the lower side. The records clearly disclose that the claimant is inpatient for a period of 45 days thereafter he has taken regular treatment and was out of employment for a period of more than 6 months. Hence he is entitled for another sum of Rs. 25,000/- towards ''pain and suffering''.

Further the income of Rs. 3,000/- taken by the Tribunal is on the lower side. The claimant is a businessman by profession. The Tribunal ought to have taken the income of Rs. 4,250/- as the accident occurred in the year 2008. Taking into consideration the income of Rs. 4250/-, applying the multiplier of 14, as the claimant was aged about 50 years at the time accident and taking into consideration of disability to an extent of 20% to the whole body, the claimant is entitled to the sum of Rs. 1,42,800/- towards the ''future loss of income'' instead of 1,00,800/- awarded by the Tribunal.

Further, in view of the accident, the claimant has sustained permanent disability to the whole body to an extent of 20%. Hence he is entitled to another sum of Rs. 20,000/- towards ''amenities'' apart from Rs. 15,000/- awarded by the Tribunal. Insofar as the attendant charges are concerned a sum of Rs. 5,000/- awarded by the Tribunal is on the lower side. Taking into consideration the period of hospitalization of the claimant, another sum of Rs. 5,000/- is awarded towards ''attendant charges''. Taking into consideration the income of Rs. 4,250/- per month, the claimant is entitled to another sum of Rs. 3,000/- towards ''loss of income during laid up period'' apart from Rs. 10,000/- awarded by the Tribunal. The Tribunal has not awarded any compensation towards future medical expenses, though the implant was inserted. Hence the claimant is entitled for another sum of Rs. 20,000/- towards ''Future Medical Expenses''.

Hence, in all the claimant is entitled for a total compensation of Rs. 3,05,900/- instead of Rs. 1,91,000/- awarded by the Tribunal. Accordingly I pass the following order:

ORDER

The appeal is allowed in part. The claimant is entitled to an enhanced compensation of Rs. 1,14,900/- with 6% interest p.a. from the date of petition till the date of deposit. Out of the enhanced amount, 50% shall be kept in a fixed deposit in any nationalized bank for a period of three years.