Santosh vs Manjunath and Others

B. Manohar, J.—1. Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 13.10.2010 passed in MVC No. 1431/2008 by the Motor Accident Claims Tribunal, Gulbarga (hereinafter referred to as ''MACT) has filed this appeal.

The case of the claimant is that on 29.04.2008 at about 11.00 a.m. while the claimant along with his friend was proceeding on a motorbike bearing registration No. CTD-2322 towards Sri Kottur Basaveshwar Temple at Rukmapur village, a lorry bearing registration No. KA-27/2979 being driven by its driver in a rash and negligent manner and in a zigzag manner dashed against the motorbike. Due to that, the claimant fell down and wheel of the lorry ran over his right leg and hand; due to which the claimant has sustained the fracture of Ist rib, fracture of the clavicle of right side, comminuted fracture of proximal shaft of tibia, comminuted fracture of the right femur, fracture to stylod process of right ulna, fracture of medial side of the lower end of right radius and other grievous injuries. Immediately after the accident, he was shifted to General Hospital, Shorapur. Thereafter, he was shifted to Basaveshwar Hospital, Gulbarga. He took treatment therein as an inpatient for a period of eight days. He claimed that he spent huge money for the treatment. Hence, sought for compensation of Rs. 12,80,000/-.

In pursuance of the notice issued by the MACT, though the owner of the offending vehicle was served with notice, he remained unrepresented. The 2nd respondent -insurance company filed written statement, denying the entire averments made in the claim petition and also contended that due to the negligence on the part of the rider of the motorbike, the accident occurred. Further, the driver of the lorry was not holding effective driving license at the time of accident. Hence, the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition as against the second respondent.

On the basis of the pleadings of the parties, the MACT framed necessary issues.

The claimant in order to prove his case, examined himself as P.W. 1 and got marked the documents as Exs. P1 to P123. The doctor, who has issued disability certificate, was examined as P.W. 2. On behalf of the insurance company, a Legal Officer was examined as RW. 1 and the insurance policy was marked as Ex. R1.

The MACT after considering the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, IMV report and copy of FIR, held that due to the rash and negligent driving of the lorry, the accident had occurred and the claimant is entitled for compensation.

With regard to quantum of compensation is concerned, as per the wound certificate - Ex. P6 issued by the doctor, the claimant has sustained the following 6 fractures:

"a) fracture of the first rib of right side

b) fracture of the clavicle of right side

c) fracture of the proximal aspect of tibia

d) fracture of shaft of upper 1/3rd of right femur

e) fracture of stylod process of right ulna

f) fracture of the medial side of lower end of right radius."

The doctor who has issued the disability certificate, assessed the disability to an extent of 62% to the whole body. The claimant was treated as an inpatient from 29.04.2008 to 06.05.2008 and undergone surgery and the external implant has been inserted. With regard to income of the claimant is concerned, though the claimant claimed that he was working in a wholesale shop and earning Rs. 5,000/- p.m., no document has been produced to substantiate the same. In view of that, the MACT has taken the notional income at Rs. 100/- per day and Rs. 3,000/- p.m. The MACT taking into consideration the disability to an extent of 30% to the whole body, income as Rs. 3,000/- p.m. and also considering the age of the claimant as 22 years, applied the multiplier of 18 awarded a sum of Rs. 1,94,400/- towards loss of future earning. A sum of Rs. 50,000/- has been awarded towards pain and suffering, Rs. 93,879/- towards medical expenses, Rs. 24,000/- towards attendant charges, nursing, extra nourishment and conveyance charges, Rs. 9,000/- towards loss of income during laid up period and Rs. 10,000/- towards loss of amenities. In all, the Tribunal has awarded compensation of Rs. 3,81,279/- which was rounded off to Rs. 3,81,300/- with interest at 6% p.a. The claimant being not satisfied with the quantum of compensation has filed this appeal.

Sri Sharanabasappa K. Babshetty, learned advocate appearing for the appellant contended that the compensation awarded towards loss of future earnings taking into consideration the income as Rs. 3,000/- p.m. is on the lower side. Even in respect of the daily wages employees working in the Government Department, the income was taken at Rs. 4,250/- p.m. The income of Rs. 3,000/- p.m. taken by the MACT is on the lower side. Further, a sum of Rs. 10,000/- awarded towards loss of amenities is on the lower side. The claimant has to lead the remaining life with the disability to an extent of 30% to the whole body. Further, the doctor in his evidence has categorically stated that the claimant has to undergo one more surgery for removal of the implant. No compensation was awarded towards future medical expenses. Hence, sought for enhancement of compensation.

On the other hand, Sri M. Sudarshan, learned advocate appearing for the 2nd respondent argued in support of the judgment and award passed by the MACT and contended that compensation awarded by the MACT is a just compensation and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the judgment and award passed by the MACT and oral and documentary evidence adduced by the parties.

The record clearly discloses that the claimant has sustained injuries in the road traffic accident occurred on 29.04.2008 due to the rash and negligent driving of the offending vehicle. The finding of the MACT with regard to the actionable negligence on the part of the driver of the lorry has become final. The issue is only with regard to the quantum of compensation. The wound certificate issued by the doctor clearly discloses that the claimant has sustained 6 fractures and other injuries. He was inpatient for a period of 8 days and undergone surgery with internal fixation of rod and screw is inserted. He has taken treatment for more than three months. The doctor, who treated the claimant in his evidence has assessed the disability to an extent of 62% to the whole body. At the time of accident, the claimant was aged about 22 years, working in a wholesale shop and earning Rs. 5,000/- p.m. However, the claimant has not produced any document to substantiate the same. The MACT has taken the income at Rs. 3,000/- p.m. which is on the lower side. Even the daily wagers in the Government Department would earn more than Rs. 4,000/- p.m. in the instant case, the claimant was working in a wholesale shop and earning more than Rs. 4,000/- p.m. Hence, the MACT ought to have taken Rs. 4,250/- p.m. Taking the income of the claimant at Rs. 4,250/- p.m. and considering the disability to an extent 30% and applying the multiplier of 18, the claimant is entitled for the compensation of Rs. 2,75,400/- as against Rs. 1,94,400/- towards loss of future earnings. Further, a sum of Rs. 10,000/- awarded towards loss of amenities is also on the lower side. The claimant has to lead his remaining life with 30% disability throughout his life. Hence, he is entitled for another sum of Rs. 40,000/- under this head. Further, the doctor in his evidence has stated that the claimant has to undergo one more operation for removal of implant. No compensation was awarded towards the future medical expenses. Hence, the claimant is entitled for a sum of Rs. 20,000/- towards future medical expenses. In all, the claimant is entitled for a total compensation of Rs. 5,22,300/- as against Rs. 3,81,300/- awarded by the Tribunal. Accordingly, I pass the following:

ORDER

The appeal is allowed in part. The claimant is entitled for the compensation of Rs. 5,22,300/- as against Rs. 3,81,300/- awarded by the Tribunal with interest at 6% p.a. The fixed deposit has to be made as per the orders of the Tribunal.