Sayyad Abbas vs Rukiyabi and Others

B. Manohar, J.—Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 21st February 2011 made in MVC No. 749/2010 passed by the Motor Accidents Claims Tribunal, D.K., Mangalore (hereinafter referred to as the ''the Tribunal'' for short) has filed this appeal.

The appellant filed a claim petition contending that on 04-01-2010 after parking his Kinetic Honda vehicle in the garage, while he was walking on the extreme left side of the road, at Aram Industries lane, a Tata 407 tempo bearing registration No.KA-18/3522 driven by its driver in a rash and negligent manner and dashed against the claimant from opposite side. Due to that, the claimant fell down on the road and sustained grievous injuries. Immediately after the accident, he was shifted to the Nursing Home at Karkala and thereafter, he was shifted to SCS Hospital at Mangalore for better treatment. He claimed that he was inpatient from 5-1-2010 to 17-1-2010 and he had spent huge money for his treatment. Prior to the accident, he was working as an agriculturist and earning Rs. 1,20,000/- p.a. In view of the accident, he cannot work as an agriculturist and sought for compensation of Rs. 5,00,000/-.

Though the owner of the offending vehicle was served with notice, he remained unrepresented.

The second respondent-Insurance Company filed written statement denying the entire averments made in the claim petition and also contended that the driver of the offending vehicle was not possessing the valid and effective driving license as on the date of the accident. Hence, the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition as against the second respondent-Insurance Company.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. The claimant in order to prove his case examined himself as P. W. 1 and also examined the doctor who treated the claimant as P.W.2 and got marked the documents as Ex.P1 to Ex.P14. On behalf of the respondents, none of the witnesses were examined nor has any document been marked.

On the basis of the oral and documentary evidence of the parties and taking into consideration the copy of the mahazar, IMV report and sketch, the Tribunal held that due to the rash and negligent driving of the offending vehicle by its driver, the accident had occurred and the claimant is entitled for compensation.

With regard to quantum of compensation is concerned, in the accident, the claimant has sustained following injuries:

"1. Cut lacerated wound over scalp at temporal region (sutured) 5 cm long.

Haemotoma at lumbar region.

Deformity and tenderness (L) leg mid 3rd and lower 3rd junction.

Swelling and tenderness at ankle and right foot.

Tenderness over (R) hip region X-ray shows fracture of left clavicle. Fracture of lateral malleolous Fracture of 5th meta tarsal bone. Fracture of both mid 3rd lower junction and fracture (R) temporal bone."

The doctor who has treated the claimant assessed the disability to an extent of 20% to the both lower limbs and spine. Though the claimant claims that he was earning Rs. 1,20,000/- p.a., no document has been produced to prove the income. In view of that, the Tribunal has taken the income at Rs. 5,000/- p.m. and taken the disability to an extent of 10%. At the time of accident, the claimant was aged about 60 years, applying the multiplier 9, the Tribunal awarded a sum of Rs. 54,000/- towards loss of earning capacity, Rs. 35,000/- towards pain and sufferings, Rs. 73,000/-towards medical expenditure, Rs. 5,000/- loss of income during the laid up period, Rs. 5,000/- towards incidental expenses. In all, the Tribunal has awarded compensation of Rs. 1,72,000/- with interest at 6% p.a. from the date of petition till realization. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal filed this appeal seeking enhancement of compensation.

Sri. B.R. Guruprasad, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law and the compensation of Rs. 1,72,000/- awarded is very meager. The compensation awarded towards pain and sufferings and loss of income during the laid up period is also on the lower side. Further, no compensation has been awarded towards attendant and nourishment and loss of amenities of life. Hence sought for enhancement of compensation.

On the other hand, Sri. B.C. Shivanne Gowda, learned counsel appearing for the second respondent-Insurance Company argued in support of the judgment and award passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the judgment and award, oral and documentary evidence adduced by the parties.

It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 4-1-2010 at about 5.45 p.m. at Aram Industries lane, due to the rash and negligent driving of Tata 407 Tempo by its driver. The finding of the Tribunal with regard to actionable negligence is not challenged by the respondents. The issue is only with regard to quantum of compensation. Looking at the wound certificate Ex.P4, it is clear that the claimant has sustained the injuries referred to above. He was inpatient from 5-1-2010 to 17-1-2010 at SCS Hospital at Mangalore. He had undergone surgery for the fracture of tibia and fibula. At the time of accident, the claimant was aged about 60 years. He was an agriculturist by profession. For the injuries sustained and sufferings undergone by the claimant, a sum of Rs. 35,000/- awarded towards pain and suffering is on the lower side. At the advanced age, if there is any fracture, it takes more time for healing. Hence, the claimant is entitled to another sum of Rs. 20,000/- towards pain and suffering. Further, no compensation has been awarded towards loss of amenities of life. The doctor who has treated the claimant has assessed the disability to an extent of 20% to both the lower limbs and spine. With the said disability, he has to lead his remaining life. Hence he is entitled to a sum of Rs. 30,000/- towards loss of amenities of life. A sum of Rs. 5,000/- awarded towards loss of income during the laid up period is very meager. In view of the fracture and injuries sustained, the claimant was out of employment at least for a period of 3 months. Hence, the claimant is entitled to another sum of Rs. 10,000/- towards loss of income during the laid up period. Further no compensation has been awarded towards attendant, nourishment and transportation charges and a sum of Rs. 5,000/-awarded towards incidental charges is also on the lower side. Hence, the claimant is entitled to another sum of Rs. 10,000/- towards attendant and nourishment charges. In all, the claimant is entitled to enhanced compensation of Rs. 70,000/- in addition to the compensation awarded by the Tribunal, with interest at the rate of 6% p.a. Accordingly, I pass the following:

The appeal is allowed in part. The judgment and award dated 21-02-2011 made in MVC No. 749/2010 is modified. The claimant is entitled to enhanced compensation of Rs. 70,000/- with interest at 6% p.a. in addition to the compensation awarded by the Tribunal.