SATHISHA vs ARUN KUMAR & Ors

Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated: 31.05.2012 made in MVC No.1020/2011 passed by the MACT, Shivamogga, (for short hereinafter referred to as ''the tribunal''), filed this appeal seeking for enhancement of compensation.

The appellant filed a claim petition contending that on 08.04.2009, while he was proceeding in a motor cycle bearing registration No.KA-14/7987 as a pillion rider which was ridden by the 3rd respondent on Thirthahalli-Shivamogga Road near Kushavathi Bridge, a Maruthi Wagon R car bearing registration No.KA-51-M-2660 driven by its driver in a rash and negligent manner with a high speed, dashed against the motor cycle. Due to the impact, the driver as well as the pillion rider fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to JC Hospital, Shivamogga. After the first aid treatment, he was shifted to KMC Hospital, Manipa, wherein he took treatment as an inpatient for a period of 16 days. He claimed that at the time of the accident, he was aged about 34 years, working as a coolie and earning Rs.6,000/- per month. In view of the injury sustained, he has become physically disabled to do the work which he was doing prior to the accident. The said Maruthi Wagon R car was owned by the 1st respondent and insured with the 2nd respondent. Hence, both the respondents are liable to compensate the claimant to an extent of Rs.6 Lakhs.

The Insurance companies defended the case by filing written statement and contended that due to rash and negligent driving of the Maruthi Wagon R Car, the accident occurred. The driver of the car was not having valid and effective driving license. Hence, sought for dismissal of the claim petition as against respondent nos.2 and 4.

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

In order to prove the case, the claimed got examined himself as PW-1 and got marked the documents at Ex.P-1 to Ex.P-12. On behalf of the respondents, none of the witnesses were examined. However, they got marked the documents as Ex.R-1 to Ex.R-3.

The Tribunal after appreciating the oral and documentary evidence let in by the parties, taking into consideration the IMV Report, spot panchanama, copy of the complaint and charge sheet, held that due to contributory negligence on the part of driver of the car as well as the motor cycle, the accident has occurred in the middle of the road. Had the driver of the Maruthi Wagon R car has taken sufficient care, the accident could have been avoided. Therefore, fastened the liability to an extent of 90% on the driver of the Maruthi Wagon R Car and 10% liability on the rider of the two wheeler.

With regard to quantum of compensation is concerned, in the accident, the claimant has sustained fracture of tibia and fibula of right leg. He has undergone surgery, internal fixation has been made by using nails in KMC Hospital, Manipal. He has taken treatment as an inpatient for a period of 16 days. However, the doctor who treated the claimant has not been examined. The Tribunal awarded a sum of Rs.22,000/- towards ''pain and suffering'', a sum of Rs.15,223/- towards medical expenditure, Rs.10,000/- towards attendant charges, special diet and conveyance, a sum of Rs.9,000/- towards ''loss of income during laid up period''. In all, a sum of Rs.56,223/- which was rounded off to Rs.56,200/- with interest at 6% per annum has been awarded by the Tribunal. Being not satisfied with the quantum of compensation, the claimant has preferred this appeal.

I have heard Sri. K. Prakash Hegde, learned counsel appearing for the appellant, Sri. Ashok N. Patil, advocate appearing for R-2 and Sri. P.B. Raju, learned counsel appearing for Respondent No.4 and perused the judgment and award and oral and documentary evidence.

Dispute in this appeal is only with regard to quantum of compensation.

The occurrence of the accident, injuries sustained by the claimant in the road traffic accident occurred on 08.04.2009 is not in dispute. In the accident, he has sustained fracture of tibia and fibula of right leg. Initially, he has taken treatment at J.C. Hospital, Shivamogga. Thereafter, he was shifted to KMC Hospital, Manipal and undergone surgery. Internal fixation has been made by using nails. The doctor who treated the claimant had issued disability certificate as per Ex.P-8 stating that the claimant has sustained disability to an extent of 15% to the right leg and 5% to the whole body. However, the said doctor has not been examined and subjected to cross-examination. Only on the ground that the claimant has not examined the doctor who treated him and the disability is not assessed, the Tribunal has not awarded any compensation towards ''future loss of income''. The compensation awarded towards ''pain and suffering'' is on the lower side. The claimant was in-patient for a period of 16 days at KMC Hospital, Manipal. Thereafter, he has taken follow up treatment for a period of two months. He has undergone surgery, internal fixation also made. Hence, he is entitled to another sum of Rs.20,000/- towards ''pain and suffering'' in addition to Rs.22,000/- awarded by the Tribunal. Further, the Tribunal has not awarded any compensation towards ''loss of amenities in life''. The claimant is an agriculturist by profession. Injuries sustained in the accident have come in the way of his earning. The claimant has to lead the remaining life with that disability to an extent of 15% to the right leg. Hence, he is entitled for a sum of Rs.20,000/- towards ''Loss of amenities in life''. The claimant is the permanent resident of Thirthahalli. Immediately after the accident, he got admitted to JC Hospital, Shivamogga and thereafter he has taken treatment at KMC Hospital, Manipal. He has spent huge money for his treatment. Hence, he is entitled for another sum of Rs.10,000/- towards ''Diet and conveyance charges''. Hence, the claimant is entitled for enhanced compensation of Rs.50,000/- in addition to Rs.56,200/- awarded by the Tribunal. ORDER

The appeal is allowed in part. The judgment and award passed in MVC No.1020/2011 dated:31.05.2012 passed by the MACT, Shivamogga is modified. The claimant is entitled for enhanced compensation of Rs.50,000/- with 6% interest per annum in addition to a sum of Rs.56,200/- awarded by the tribunal.

However, Respondent No.2 has to pay 90% of the enhanced compensation and 10% has to be paid by the 3rd respondent.