Rehamath Ali and Others vs R. Ramachandran and Others

S.N. Satyanarayana, J—The claimants and the insurer in MVC. No. 1009/2006 and MVC. No. 1045/07 on the file of the MACT, Kundapur have come up in these four appeals. The appeals in MFA. Nos. 3151/11 and 3152/11 are filed by the claimants seeking enhancement of compensation and MFA. Nos. 3615/11 and 3616/11 are filed by insurer questioning the quantum as well liability to pay the entire compensation saddled on it, instead of considering to shift liability to pay compensation to claimants in both claim petitions on another lorry involved in the accident.

Though all these four appeals are at the stage of admission, this Court on an earlier occasion had ordered for securing trial Court records with a view to dispose of all the four appeals at the stage of admission. Accordingly, at the request of learned counsel appearing for both the parties, all these appeals are taken up for final disposal.

The undisputed facts leading to these four appeals are as under:-

The claimants in MVC. Nos. 1009/06 and 1045/07 were inmates of the lorry bearing Regn. No. KA-20-A-8087 which was insured with New India Assurance Company. According to the claimants, when they were traveling in the said lorry as driver and cleaner, the said lorry met with an accident on 12.9.2006 at about 8.30 P.M. near Gandhi Maidan, Voderhobli Village, Kundapur Taluk on NH 17 involving another lorry bearing Regn. No. TAE-799 insured with Oriental Insurance Company which is the appellant in MFA. No. 3615 and 3616/11. The aforesaid accident is not disputed so also the injuries suffered by the claimants in the said accident. It is seen that in addition to these two claimants there were two other persons traveling in the lorry bearing Regn. No. KA-20-A-8087 at the relevant point of time who also suffered certain injuries.

Hence, in all four claim petitions came to be filed, which were taken up for consideration by the Tribunal. In the said proceedings, the insurer of the lorry bearing No. TAE-799 namely Oriental Insurance Company took up the defence that the accident has taken place due to the rash and negligent driving of the other lorry also. However, the said defence was not considered by the Tribunal for the reason that the complaint which was registered immediately after the accident is against the driver of the lorry bearing No. TAE-799. Based on the complaint, investigation was conducted by the police and charge sheet was also filed against the driver of the lorry bearing No. KA-20-A-8087 In that view of the matter, though defence was taken up by the insurer of the lorry bearing No. TAE-799 that there is contributory negligence on the part of the driver of another lorry No. KA-20-A-8087 was not considered and it was accepted by the Tribunal that the injuries suffered by the claimants in all the four claim petitions were due to rash and negligent driving of the driver of the lorry bearing Regn. No. TAE-799 and proceeded to consider the four claim petitions for awarding compensation to them for the injuries suffered in the said accident.

As could be seen all the four claim petitions filed by four inmates of the lorry bearing Regn. No. KA-20-A-8087 was allowed and compensation was awarded to each one of them. In respect of the claimant in MVC. No. 1009/2006 who is said to be cleaner by name Udaya Devadiga, the compensation awarded by the Tribunal is in a sum of Rs. 2,00,000/- for the injuries suffered which are as under:-

Right hip is deformed, head at femur;

Left hummus is deformed with painful abnormal mobility at distal 1/3rd;

There is evidence for radial nerve palsy;

There is a laceration 4 x 2 cm. right eyebrow;

There is a laceration 3 x 1 cm. over the chin bone deep.

X-ray shows: 1. Fracture dislocation posterior right hip;

Comminuted fracture humorous left.

The claimant being aggrieved by the quantum of compensation has come up in appeal No. 3151/11 and the insurer of the lorry bearing No. TAE-799 has come up in appeal in MFA. No. 3615/11 contending that, fastening of entire liability on the said insurer is erroneous and the same should have been distributed between the insurer of lorry bearing TEA 7999 and KA-20-A-8087.

Similarly in the said proceedings, in MVC. No. 1045/07 the claimant was awarded compensation of Rs. 6,22,120/- for the following injuries:-

Fracture shaft or right femur.

Open fracture of left tibia.

Fracture of right clavicle.

2 cm, laceration over right upper eyelid and chin.

Fracture right I Premolar tooth.

Multiple lacerations over both feet.

Closed head injury.

The claimant in the said proceedings has come up in appeal in MFA. 3152/11 seeking enhancement of compensation whereas the insurer of lorry bearing No. TAE-799 has come up in appeal in MFA. 3616/11 on the same ground on which he has filed the other appeal.

Heard the learned counsel for the appellants-claimants and the respondent-Insurance company in all the four appeals and the appeals are taken up for final disposal in the following manner:-

a) Coming to the appeal in MFA. No. 3151 and 3615/11 which are with reference to the injuries suffered by Udaya Devadiga. It is seen that the injuries suffered by him was treated in Chinmaya Hospital, Kundapur, where he is said to have taken treatment for 25 days. Admittedly, he is the resident of Kundapur. He has taken treatment in the hospital closer to his residence. He has spent Rs. 26,000/- towards medical expenses. The Court below has taken into consideration two serious fractures which he has suffered which would render him disabled in his day to day activities compared to the condition with which he was able to attend to his duties earlier to the accident has awarded Rs. 60,000/- towards pain and suffering; Rs. 40,000/- towards attendant charges which appears to be just and proper. Based on the evidence of Dr. Dinesh Kumar Shetty, the Court below has accepted that the claimant requires medical expenses for treatment of his hip as well as removal of implants with reference to which the doctor has opined that claimant may need Rs. 75,000/-, the Court below has awarded Rs. 50,000/- towards future medical expenses which appears to be just and proper. When it comes to the compensation payable under other heads, the Court below has awarded lumpsum of Rs. 50,000/- towards loss of income during laid up period, loss of future earning capacity and under other heads which is erroneous according to this Court. Therefore, this Court would consider the notional income of the claimant at Rs. 3,500/- in the absence of acceptable proof of income for the accident which took place in the year 2006 and award compensation under the head of loss of income during treatment period for four months at Rs. 14,000/-. Taking the whole body disability of the claimant at 10% with income at Rs. 3,500/- and multiplier applicable to the claimant as 17, the claimant is entitled to compensation under loss of future income at Rs. 71,400/- in addition to that he is entitled to loss of amenities in a sum of Rs. 20,000/-. With this the total compensation which the claimant would be entitled to would be in a sum of Rs. 2,55,400/-. In other words, the claimant is entitled to enhanced compensation of Rs. 55,400/-.

b) Now coming to the appeal which is filed by Rehamath Ali @ Rehaman, the claimant in MVC. 1045/07 and appellant in MFA. No. 3152/11, it is seen that he has suffered three major fractures and other related injuries for which the compensation awarded by the Tribunal towards pain and suffering at Rs. 90,000/- appears to be just and proper. It is seen that he has produced medical bills to the tune of Rs. 1,66,000/- and he has stated that he was inpatient for a period of 90 days in KMC Hospital. Admittedly, Rehamath Ali is resident of Shimogga District whereas he has taken treatment in Manipal Hospital, Udupi, staying away from his family along with an attender attending to him regularly in that place. In that view of the matter, the Court below has awarded Rs. 2,20,000/- towards medical expenses, nourishment and attendant charges which appears to be just and proper. The medical records would disclose that the claimant Rehamath Ali was under continuous treatment and was walking with crutches upto 2008 September and he had visited the doctor till 2009 December. This Court would not like to disturb the compensation awarded for loss of income during treatment period which is Rs. 1,14,000/-. However, when it comes to loss of future income, the Court below has taken the whole body disability to the claimant at 19% and income at Rs. 3,000/- and awarded compensation in a sum of Rs. 1,59,120/- which is reassessed taking his income at Rs. 4,500/- and whole body disability at 15% as against 30% limb disability stated by the doctor. With this the claimant is entitled to Rs. 1,45,800/- with reduction of Rs. 14,000/- from what was awarded by the Tribunal. In addition to that the Court below has awarded Rs. 30,000/- towards loss of amenities, which is retained. When it comes to future medical expenses, a sum of Rs. 9,000/- is awarded, which is increased to Rs. 30,000/- considering that two more surgeries are required for removal of tibia and fibula in right and left leg. The claimant in this case was aged about 25 years at the time of accident. It is stated that he was not married and there is diminishing chances of his marriage, for which no compensation is awarded. Since nine years has elapsed since accident, this Court is not aware whether he has remained bachelor or married. However, there is difficulty in leading normal marital life with such deformity. Therefore, Rs. 50,000/- is awarded towards diminishing happiness in marital life. Thus, the claimant would be entitled to revised compensation of Rs. 6,79,800/- as against Rs. 6,22,120/- awarded by the Tribunal with interest only on Rs. 6,49,800/- since Rs. 30,000/- awarded is towards future medical expenses.

c) With the above, the appeal filed by the claimants in both the appeals is allowed partially enhancing compensation.

When it comes to the appeal filed by the Insurance Company, it is seen that insofar as quantum of compensation, there is no serious opposition by the learned counsel appearing for the appellant-Insurance Company in MFA. No. 3615 and 3616/11. However, the objection is with reference to the saddling of entire liability on the Insurance company. This Court on going through the police records would notice that the insurer of lorry bearing No. TAE-799 has failed to assail the charge sheet which was filed against its driver as erroneous. In that view of the matter, this Court find that in the absence of proof of negligence on the part of the driver of lorry bearing Regn. No. KA-20-8087, question of disturbing liability saddled on the driver of the lorry bearing No. TAE-799 and shifting a portion of that on the driver of another lorry does not arise. Accordingly, the appeals filed by the insurer of lorry bearing No. TAE-799 who is appellant in MFA. No. 3615 and 3616/11 does not merit consideration and hence, both the appeals are dismissed. In view of the appeals filed by the Insurance Company being dismissed the amount in deposit is ordered to be sent to the Tribunal for disbursement to the claimant.

So far as the appeal in MFA. No. 3151/11 is concerned the claimant is entitled to total compensation of Rs. 2,55,400/- which he shall be entitled to receive with interest at 6% per annum on Rs. 2,05,500/- since Rs. 50,000/- is towards future medical treatment. Out of the total compensation awarded to him, 80% is ordered to be deposited in Fixed Deposit in any Nationalised Bank for a period of three years and it is made clear that in the event of the claimant approaching the Court with necessary documents to show that he intends to utilize the amount in deposit towards setting up of a business, the Court below shall release the same in his favour to enable him to set up the business if he could convince the Court regarding the same.

In MFA. No. 3152/11 since out of the entire compensation awarded, since no amount is released till today, 80% of the compensation with interest is ordered to be kept in fixed deposit in any Nationalised Bank for a period of five years with right to receive interest periodically and the balance 20% shall be released in his favour.