Santosh and Others vs Vittal and Others

B. Veerappa, J.—1. These appeals are filed against the common judgment and award dated 28.5.2011 passed in MVC No. 1922/2010, 1921/2010, 1924/2010 and 1926/2010 on the file of the Fast Track Court-II and Additional MACT., Belgaum, awarding Rs. 3,50,000/-, Rs. 63,500/-; Rs. 65,500/- and Rs. 1,01,900/- with 9% interest per annum from the date of petition till the date of realisation.

All these miscellaneous first appeals are arising out of the common accident occurred on 21.5.2010 and all the claimants were travelling in a Trax jeep bearing registration No. KA-24/3803 as the passengers and while it was proceeding near Chalkoppa Murgod Road, the driver of the said vehicle drove the same in a rash and negligent manner, due to which, the said vehicle turned turtle on the side of the road, as a result, all the claimants sustained fractures as shown in column No. 11 of the claim petition and they were shifted to the Government Hospital, Bailhongal and thereafter they were shifted to Gopal Jungouda Bhartesh Hospital, Belgaum for treatment and they have spent huge amount towards their treatment. It was their contention that before the accident, they were hale and healthy and they were doing coolie work earning Rs. 6,000/- per month. In view of the accident, they are not able to work as before. Therefore, they filed separate claim petitions for compensation as prayed for.

Respondent Nos. 1 and 2 appeared and filed objections denying the petition averments made therein contending that the claim made by the claimants are highly exorbitant and without any basis. They have also denied the age, occupation and income of all the claimants and also contended that the driver of the vehicle in question was driving in a moderate speed but in spite of the same, the accident had occurred. The driver was having valid and effective driving licence and the vehicle was insured with respondent No. 2. Therefore, they prayed for dismissal of the claim petitions.

In view of the pleadings, the Tribunal framed the following issues:

"1. Whether the petitioners prove that they have sustained injuries in alleged incident caused on 21.5.2010 at 6.00 p.m. while they were travelling in Trax Jeep No. KA 24/3803 near Murgod village, due to rash and negligent act of the driver of the Trax Jeep No. KA-24/3803?

Whether the petitioners are entitled for compensation? If so, for how much and from whom?

What order or award?"

In order to establish their case, the claimants examined themselves as P.Ws. 1 to 6 and two witnesses - P.Ws.7 and 8 and marked the documents - Exs.P.1 to 76. The respondents did not adduced any evidence except marked of Ex. R. 1 - the insurance policy.

After considering the entire material on record, the Tribunal awarded the amount of compensation of Rs. 3,50,000/- in MVC No. 1922/2010; Rs. 63,500/- in MVC No. 1921/2010; Rs. 65,500 in MVC No. 1924/2010 and Rs. 1,01,900/- in MVC No. 1925/2010 and interest at the rate of 9% per annum from the date of petitions till realization from respondent No. 2. Hence, the present appeals are filed by the claimants for enhancement of the same.

The insurance company has not filed any appeal against the impugned judgment and award passed by the Tribunal.

I have heard the learned Counsel for the parties to the lis.

Sri Hanamant R. Latur, learned counsel for the appellants contended that the Tribunal has not considered the age and income of the claimants while passing the impugned judgment and also the compensation awarded in respect of all the heads are on the lower side and therefore, sought for further enhancement by allowing of the appeals.

Per contra, Sri M.Y. Katagi, learned Counsel for respondent No. 2 sought to justify the impugned judgment and award passed by the Tribunal.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

The Tribunal while passing the judgment has recorded a specific finding that in all the cases that the accident occurred due to rash and negligent driving of the driver of the trax-jeep bearing registration No. KA-24/3803 and thereby all the claimants have sustained grievous injuries/fractures. The said finding recorded by the Tribunal in all these appeals are conclusive and final. Admittedly, the insurance company has not filed any appeals.

In MFA No. 24173/2011 arising out MVC No. 1922/2010, the claimant was aged about 18 years, who examined as P.W.1. He has stated on oath that he was earning Rs. 6,000/- per month when the accident occurred but the Tribunal has taken into consideration only Rs. 4,500/- as he has sustained grievous injuries as per Exs.P.5 and 6 - the wound certificates which read as under:

"1. Chest X-ray review K/C/O # clavicle right side middle 1/3rd;

Pelvis AP no obvious fracture dislocation;

Rt femur K/L/O Spinal # Left femur at junction of mid. 1/3rd;

RT elbow AP/LAT no obvious fracture dislocation."

To substantiate his claim, he as examined the doctor as P.W.8 who has stated on oath that P.W.1 sustained permanent disability to an extent of 40% to the right lower limb, 20% to the left lower limb. Ex. P. 13 is his disability certificate issued by him. In view of the same, the doctor has opined the disability to the extent of 15% to the whole body. When the respondents have not adduced any evidence contrary to the evidence adduced by this claimant, it is appropriate to take at least 25% disability to the whole body and the income would have been taken by the Tribunal at Rs. 5,500/- per month. Taking into consideration the age of the claimant and the date of the accident as well as considering the entire material on record, it is appropriate to re-assess the compensation as under:

In all the claimant is entitled to total enhanced compensation of Rs. 1,99,200/- with interest at 9% per annum from the date of the petition till realisation.

MFA No. 24495/2011 is arising out MVC No. 1924/2010. The appellant aged about 22 years as on the date of the accident has stated that he was doing the coolie work earning Rs. 6,000/- per month and was also taking training to join Indian Army. He is examined as P.W.5 and the doctor as P.W.8. He has stated that due to the said accident, he has sustained injuries and he has spent more than Rs. 40,000/- for treatment and Exs.P.48 and 49 - wound certificates and discharge card - Ex. P. 53 clearly indicate that he has sustained the following injuries:

"1. Tenderness over left elbow joint;

CLW over left palm about 4x2 cm;

Tenderness over pelvis;

X-ray of left elbow AP/- No obvious fracture of dislocation;

X-ray of pelvis no obvious fracture or dislocation of both hips;

X-ray of left elbow: Fracture of medial condyle of humorous of left elbow joint."

Taking into consideration the evidence of P.W.5 and the evidence of the doctor - P.W.8 and considering the injuries sustained by the claimant, it is appropriate to re-assess the compensation awarded by the Tribunal as under:

In all the claimant is entitled to total enhanced compensation of Rs. 66,500/- with interest at 9% per annum from the date of the petition till realisation.

In MFA No. 24496/2011 arising out of MVC No. 1924/2010, the claimant was aged about 19 years, who examined as P.W.2. He has stated that he has spent more than Rs. 40,000/- for treatment for which he has produced the medical bills Exs.P.23 and 24. In support of his case, he has examined the doctor as P.W.8, who has issued the wound certificate - Ex. P.18 which clearly indicates that he sustained the following injuries:

"1. Abrasional wound over the left forearm;

Abrasional wound over the right little finger;

X-ray of shoulder joint - evidence of Sublaxation of acromia-clavicular joint."

Considering the entire material on record, the Tribunal has taken the permanent disability to an extent of extent of 25% to the left upper limb and the doctor also has stated the same and has issued the disability certificate Ex. P.26 and the school leaving certificate Ex. P.22. Taking into consideration the age of claimant and the date of the accident, on re-assessment, the claimant is entitled to the enhancement of the compensation as under:

In all the claimant is entitled to the total enhanced compensation of Rs. 18,500/- with 9% interest per annum from the date of the petition till realisation.

The claimant in MFA No. 24209/2011 arising out of MVC No. 1926/2010 examined as P.W.6. He has stated that due to the extent, he has sustained the permanent disability for which he has examined the doctor as P.W.8, who deposes that the claimant has sustained the permanent disability to an extent of 25% to the right upper limb and he has issued the disability certificate - Ex. P.65. The claimant has further stated that before the accident, he was hale and healthy and was doing the coolie work and thereby was earning Rs. 6,000/- per month. He has further contended that due to the accident, he has spent more than Rs. 40,000/- towards medical expenses.

Considering the evidence of P.W.6 and P.W.8 and considering the wound certificates Ex. P.59 and 60 which indicate that the claimant has sustained the following injuries:

"1. Abrasional wound over the right forehead over right eye;

Tenderness over the chest;

CLW over the upper lip;

Tenderness over the abdomen and

Tenderness over right shoulder joint;

Chest P.A. No active plural and parency mallesionX-ray right should joint -E/O Fracture clavicle at its lateral 1/3rd;

CT scan abdomen: Hepatomegaly with liver laceration with intrapaundymal haematoma in RT lobe."

On considering the gravity of the injuries sustained by him, the petitioner is entitled to the enhanced compensation on re-assessment as hereunder:

In all the claimant is entitled for enhanced compensation of Rs. 31,500/- with interest at 9% per annum from the date of petition till realisation.

In view of the aforesaid reasons, all these appeals are allowed in part modifying the impugned judgment and award of the Tribunal to the extent stated above.