Ravi Kumar vs Pratkiba Dai and Reliance General Insurance Co. Ltd.

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 impugned judgment and award dated 01.06.2009 passed in M.V.C. No. 5747/2008 by the XVI Addl. Judge. Court of Small Causes. Member, MACT, Metropolitan Area, Bangalore 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 19.6.2008 at about 1.00 p.m. near Amruthahalli cross situated on Bangalore-Bellary Road involving the Car bearing Regn. No. KA-03-D-1112 owned by the first Respondent and insured with the second Respondent at the relevant point of tine. In the impugned accident he sustained fracture of patella of his right knee. 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 discharge his functions as a driver which has resulted in loss of income to him. Accordingly, he sought for grant of compensation.

After notice, the Respondents appeared and contested the claim of 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 oilier hand it took place on account of the fault of the driver of the canter bearing Regn. No. KA-41-5863. They further contended that as the claimant has not impleaded the driver, owner and insurer of the canter, the petition is bad for non-joinder of the necessary parties and further contended that as the accident has not taken place due to the fault of the driver of the offending car they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition as against them.

The tribunal on considering the oral and documentary evidence on record held that the accident has taken place solely on account of the fault of the driver of the car in which the claimant was proceeding and as such the claimant has established actionable negligence. Further, the tribunal looking to the evidence of the claimant and the doctor P.W. 3 who has examined him and the medical evidence on record awarded a total compensation of Rs. 1,49,600/- 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 of 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 just and reasonable compensation to the Appellant/claimant towards loss of income during laid-up period and loss of future income having regard to his income, avocation and date of accident. Hence, 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 for the same are not in dispute. According to the claimant in the impugned accident he has sustained the following injuries:

Lacerated wound over the right knee joint with diffused swelling and deformity.

A sutured wound over scalp 10 cms in length near forehead.

X-ray shows fracture of right patella.

The same is fortified from the testimony of P.W. 3 -medical officer and the wound certificate Ex. P6 which is placed on record. Further, the material on record discloses that the claimant was in the hospital for about 25 days and he has suffered disability to the right lower limb as per the evidence of PW3 to an extent of 23%. Taking all these factors into consideration, the tribunal was justified in awarding compensation of Rs. 35,000/-towards injury, pain and suffering.

Further, the Tribunal has awarded a sum of Rs. 5.000/- towards medical expenses and Rs. 20,000/- towards loss of amenities, Rs. 10,000/- towards conveyance, nourishing food and attendant charges and a sum of Rs. 10,000/- towards future surgery as per the evidence of PW3 and the same in the facts and circumstances appears to be just and reasonable and does not call for any modification.

The Tribunal has determined the income of the Appellant having regard to his profession of driver at. Rs. 4,000/- p.m. The accident has taken place on 19.6.2008. The claimant is aged about 35 years. Therefore, the said income of Rs. 4,000/- p.m. determined by the Tribunal is rust and proper and does not call for any modification. The Tribunal taking the said income per month and having regard to the nature of fracture that the claimant has sustained and further taking into account his avocation being a driver by profession has awarded Rs. 12,000/- towards loss of income during laid-up period for 3 months. In my view, as the claimant is a driver by profession as he has sustained fracture to his right patella, he should be awarded loss of income for a further period of one month and accordingly, he is awarded a further sum of Rs. 4,000/- in addition to 2,000/- awarded by the Tribunal. Therefore, the claimant in all is entitled to Rs. 16,000/- towards loss of income during laid-up period.

The next aspect to be considered is loss of future income to the claimant. The Tribunal taking his income at Rs. 4,000/- p.m. having regard to his age by applying the multiplier at 15, has awarded compensation of Rs. 57,600/- by taking the disability at 8%. This appears to be not correct having regard to the age of the claimant and the percentage of disability that he has suffered as spoken to by PW3. The evidence of PW3 discloses that the claimant has suffered disability to an extent of 23% to the right lower limb. Further, the doctor has deposed that he has disability to the extent of 11.5%.

The learned Counsel for the contesting insurer submitted that even accepting the testimony of PW3, the permanent disability of 8% assessed by the Tribunal appears to be just and proper and does not call for any interference.

Despite the submission made by the learned Counsel for the insurer, in the facts and circumstances, it is just and proper to take the permanent disability at 10% as against 8% taken by the Tribunal. The claimant admittedly is aged 35 years. The proper multiplier that becomes applicable would be 16 and not 15 as applied by the Tribunal. Taking these factors into consideration, the claimant would be entitled to a sum of Rs. 6,800/- ( Rs. 4,000 � 12 � 16 � 10/100) towards loss of income as against Rs. 57,600/- awarded by the Tribunal.

Thus, in all the Appellant/claimant is entitled to total compensation of Rs. 1,72,800/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 1,49,600/- 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:

1

Towards injury pain and suffering

Rs. 35,000/-

2

Towards Medical expenses

Rs. 5,000/-

3

Towards conveyance, nourishing Food and attendant charges

Rs. 10,000/-

4

Towards loss of amenities, discomforts & unhappiness

Rs. 20,000/-

5

Towards loss of income during laid up period

Rs. 16,000/-

6

Towards Loss of future income

Rs. 76,000/-

7

Towards future medical expenses

Rs. 10,000/-

Total

Rs. 1,72,800

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. 1,72,800/- with interest at 6% per annum from the date of petition till realisation as against Rs. 1,49,600/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 23,200/- 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. 23,200/- with interest at 6% per annum from the elate 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, is ordered to be released in favour of the Appellant/claimant.

Office to draw the award accordingly.