Rangadhamaiah vs Dr. Narayana Reddy and The Manager The National Insurance Company Insurance

H.S. Kempanna, J.—Though this matter is listed for admission, with the consent of the learned Counsel for the respective parties, it is taken up for final disposal.

This appeal by the claimant is directed against the common impugned judgment and award dated 29.05.2009 passed in M.V.C. No. 28/2008 by the Addl. Civil Judge, (Senior Division) and MACT, Madhugiri, seeking for enhancement of compensation in respect, of the injuries sustained by the claimant in the motor accident.

The facts in brief are:

The Appellant-Claimant filed claim petition before the Tribunal seeking compensation in a sum of Rs. 6,00,000/- against the Respondents on account, of the bodily injuries which he sustained in a motor accident that took place on 7.11.2006 at about 4 p.m. near Shanimahatma temple situated on Madhugiri-Hindupur road involving the Maruthi Car bearing Regn. No. KA 01-P-5940 owned by the first Respondent and insured with the second Respondent at the relevant point of time. In the impugned accident he sustained in all seven injuries which comprises of fractures to the wrist of both hands. He took treatment in the hospital by spending huge money. Despite the same, he is not completely cured of the injuries and hence he is unable to carry on his avocation of agriculture and milk vending which has resulted in loss of income. Hence, he prayed for grant, of compensation.

Alter notice, the Respondents appeared and con tested the claim made by the Petitioner. The Respondents contended that the accident in question has not taken place due to the fault of the driver of the offending car on the other hand it took place on account of the rider of the motor cycle involved in the accident in which the Petitioner was proceeding as pillion rider. They further denied the age, occupation, income, injuries sustained, treatment taken and the amount spent for the same. Accordingly, sought for dismissal of the petition as against them.

The tribunal considering the oral and documentary evidence on record held that the accident has taken place on account of the fault of the driver of the offending car and as such the claimant has established actionable negligence. Further, the tribunal looking to the evidence of the claimant and the doctor PW4 who has examined him and the wound certificate Ex. P9 placed on record awarded a total compensation of Rs. 77,000/- with interest at 6% p.a. from the date of the petition till realisation. It further saddled the liability of payment of compensation on the second Respondent-insurer.

The Appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.

Learned Counsel appearing for the Appellant-claimant submitted that, the Tribunal has erred in not awarding suitable compensation to the Appellant/claimant despite his evidence and the medical evidence on record and therefore, a case for enhancement is made out.

Per contra, learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.

Taking the rival submissions into consideration and the papers that are made available, the point that arises for my consideration is:

Whether the Appellant-claimant has made out a case for enhancement?

The facts are not in dispute. The claimant having met with accident, injuries sustained, treatment that he has taken and the amount spent are not in dispute. The claimant claims that in the impugned accident he has sustained in all 7 injuries which are described in Ex. P9 which comprises of fractures sustained by him to the wrist of his both hands. He has taken treatment in the hospital for 20 days. The doctor who has examined him for the purpose of disability has opined that he has disability to an extent of 30% to the whole body. However, there is no material placed before the Court to show what is the permanent disability that he has suffered to the upper limb. Despite these materials on record, the tribunal has awarded only a sum of Rs. 5,000/- towards injury, pain and suffering which is not just and proper. Having regard to the fractures coupled with other 5 injuries which he has sustained in the facts and circumstances the claimant is awarded a further sum of Rs. 25,000/- in addition to Rs. 5,000/- awarded by the Tribunal towards injury, pain and suffering.

Insofar as the compensation of Rs. 20000/- and Rs. 10,000/- awarded towards medical expenses and towards conveyance, attendant and other incidental charges appears to be just and reasonable and does not call for any modification.

The Tribunal has awarded Rs. 30,000/- towards deformity. This appears to be under the head loss of amenities which has been not properly nomenclated having regard to the nature of injuries. Therefore, the compensation awarded to the claimant at Rs. 30,000/- under the head ''deformity'' can be taken as loss of amenities as he has to suffer with the discomfort and unhappiness in future. The said compensation also appears to be just and proper and does not call for interference

Lastly, the Tribunal has awarded a sum of Rs. 12,000/- towards loss of income during laid-up period by determining the income of the claimant at Rs. 3,000/- p.m. and taking the laid up period of 4 months. Though the claimant has claimed to be earning Rs. 6,000/- p.m., no clinching material is placed to substantiate the same. However, looking into the nature of injuries sustained by the claimant, he is awarded a further sum of Rs. 3,000/- towards loss of income during laid-up period. Therefore, the claimant in all is entitled to Rs. 15.000/- towards loss of income during laid-up period.

Thus, in all the Appellant/claimant is entitled to total compensation of Rs. 1,05,000/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 77,000/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of compensation is as follows:

Towards pain and suffering

Rs. 30,000/-

Towards Medicals expenses

Rs. 20,000/-

Towards conveyance, nourshing food and attendant charges

Rs. 10,000/-

Towards loss of income during laid up period

Rs. 15,000/-

Towards loss of amenities

Rs. 30,000/-

Total

Rs. 1,05,000/-

In the result for the foregoing reasons, I proceed to pass the following:

ORDER

1) Appeal is allowed in part.

2) The impugned judgment and award of the Tribunal is modified and the Appellant is awarded a total compensation of Rs. 1.05,090/- with interest at 6% per annum from the date of petition till realisation as against Rs. 77,000/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 28,000/- with interest at 6% per annum from the date of petition till realisation.

3) The second Respondent-Insurer shall deposit the entire enhanced compensation of Rs. 28.000/- with interest at 6% per annum from the date of petition till realisation before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award.

4) On deposit the enhanced compensation with interest, the same is ordered to be released in favour of the Appellant/claimant.

Office to draw the award accordingly.