AI Structured Summary
Not yet generated for this judgment
Judgment
H.S. Kempanna, J.—Though this matter is listed for admission, with the consent of the learned Counsel appearing for the respective parties it is taken up for final disposal.
This appeal is by the claimant seeking for enhancement of compensation in respect of the injuries which he has sustained in a motor accident.
The brief facts are:
The Appellant/claimant filed claim petition before the Tribunal in respect of the bodily injuries which he sustained in a motor accident that took place on 18.03.2007 at about 8.15 p.m. near Thandavapura Christ School while he was walking on Mysore-Nanjangud Main Road involving Maruthi car bearing Reg. No. KA 09 M 6147 driven by the 1st Respondent, owned by the 2nd Respondent and insured with the 3rd Respondent at the relevant point of time. On account of the impact, he sustained grievous injuries for which he took treatment in the hospitals for about 31 days, underwent one surgery and also spent huge money for the same. Despite the same, he is not completely cured of the injuries on account of which he is unable to carry on his avocation of coolie work which has resulted in loss of income. Hence, on ail these grounds, he sought for enhancement of compensation.
After service of notice, Respondent Nos. 1 and 2 who are the driver and owner of the offending car remained absent. Hence they were placed exparte before the Court below.
The 3rd Respondent-insurer of the offending vehicle appeared and contested the claim of the Appellant. it was contended that the accident in question did not take place on account of the fault of the driver of the offending car They also further contended that the driver did not possess valid and effective driving licence to drive the car at the time of the accident. As such, there is breach of terms and conditions incorporated in the policy. They also denied the age, occupation, income, injury sustained, treatment taken, amount spent for the same. Hence on these grounds, they contended that they are not liable to pay any compensation and accordingly sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal funned in all three issues.
The claimant in support of his case got himself examined as P.W.1. He produced 15 documents, which came to be marked as Exs.P. 1 to 15. On behalf of the contesting Respondent:, they did not choose to lead any oral evidence. On the other hand they produced the copy of the policy of the insurance pertaining to the offending vehicle which came to be marked with consent as Ex.R.1.
The Tribunal considering the oral and documentary evidence on record held that, the accident in question has taken place on account of the rash and negligent driving of the car by its driver. As such the claimant has established actionable negligence. Further the Tribunal looking to the evidence of the claimant and the documents including the wound certificate - Ex.P.4 placed on record awarded total compensation of Rs. 69,000/- with interest at 6% per annum from the date of the petition till the realisation under various heads. It further saddled the liability of payment of compensation on the 3rd Respondent/ insurer.
The Appellant/claimant being aggrieved of the quantum of compensation is in appeal before this Court.
The learned Counsel appearing for the Appellant/claimant submitted that the Tribunal has erred in not awarding commensurate compensation to the claimant on all heads and it has further failed to consider the case of the claimant for awarding future loss of income despite the wound certificate Ex, P.4 which discloses that he has sustained permanent disability of 15% to his whole body. Hence, case for enhancement is made out.
Per contra, learned Counsel appearing for the contesting insurer supported the impugned judgment and award of the Tribunal.
Taking the rival submissions and the papers that are made available at: the time of hearing, the point that arises for my consideration is:
Whether the Appellant - claimant has made out a cast for enhancement?
The facts are not in dispute. The claimant having met with accident, injuries sustained, treatment taken and amount spent for the same are also not in dispute. According to the claimant in the impugned accident, he has sustained fracture of both bones of right leg at lower 1/3rd and also a cut injury measuring 1.5 cms., on the occipital region. He was in the hospital for 31 days. He has suffered disability to an extent of 40 to 45% to the particular limb. Taking all these aspects into consideration, the Tribunal has awarded a sum of Rs. 35,000/- towards the injury, pain and suffering. The same appeal''s to be just and reasonable and does not call for any modification.
Further the Tribunal has awarded a sum of Rs. 3,000/- towards medical expenses relying on the medical bills which are at Ex. P.6 produced by the claimant. Though the impugned order discloses that the amount covered under Ex.P.6 is only Rs. 2091/- and the Tribunal has awarded Rs. 3,000/- having regard to the nature of the fracture that be has sustained, he must have spent sum considerable amount than the one which are covered under the medical bills. The Tribunal considering the same has awarded a sum of Rs. 900/- more than what is covered under Ex. P.6. In the facts and circumstances, in the absence of all the medical bills, I deem it fit to award a further sum of Rs. 1,000/-towards medical expenses. Thus the claimant is awarded total sum of Rs. 4,000/- as against Rs. 3,000/- awarded by the Tribunal towards the medical expenses.
Further, it is the case of the claimant that he is aged about 22 years, coolie by profession and earning Rs. 6,000/- per month. No doubt, be has not placed any substantive material to substantiate the said claim. The Tribunal in the absence of any substantive material has determined his income at Rs. 3,000/- per month. The impugned accident has taken place on 18.3.2007. Having regard to the date of accident and the age of the claimant, it can safely be taken that he would have earned a sum of 3,500/- per month and not Rs. 3,000/- as determined by the Tribunal Taking this income and the injuries sustained into consideration, the question that arises is what is the compensation that the claimant is entitled to towards loss of income during laid up period?
The Tribunal has awarded a sum of Rs. 12,000/-towards loss of income during the laid up period of four months taking his income at Rs. 3,000/- per month. As already pointed out, the claimant is a collie and has sustained fracture of both bones of right leg at lower 1/3rd. Taking this injury into consideration, in my view, he could not have attended to his normal work for a period of 6 months for which period he should be compensated towards loss of income. Having determined his income at Rs. 3,500/-per month, for 6 months the claimant is awarded a total sum of Rs. 21,000/ towards loss of income during the laid up period as against Rs. 12,000/- awarded by the Tribunal.
Further the Tribunal has awarded a sum of Rs. 4,000/- towards conveyance and nourishment charges As already pointed out, the claimant after the accident has taken treatment in the hospital for 31 days. He has sustained fracture of both bones of his right leg at lower 1/3rd. That automatically follows that after his discharge from the hospital, he must have taken follow up treatment for which he must have spent some considerable amount towards conveyance, nourishment and attendant charges. The accident has taken place on 18.3.2007. Therefore, taking all these aspects into consideration, in my view, the claimant is to be awarded a further sum of Rs. 6.000/-towards conveyance, nourishment and attendant charges as in addition to Rs. 4,000/- awarded by the Tribunal.
Further the Tribunal has awarded a sum of Rs. 15,000/- towards loss of amenities taking into consideration the nature and degree of the fracture that the claimant has sustained which has been adverted to above, coupled with his age. As the claimant has also not examined the Medical Officer, the Tribunal has rightly awarded a sum of Rs. 15,000/- towards loss of amenities, which is just and proper and does not call for any modification.
As already pointed out though the claimant has sustained serious fracture to his lower limb, he has not ventured to examine the doctor who has issued the disability certificate, which is at Ex.P.15. In the absence of any medical evidence, the Court is handicapped in considering his case in awarding future loss of income. In this behalf, the learned Counsel for the Appellant was also not able to convince this Court on this point: Therefore in the facts and circumstances, in view of the compensation that has been awarded under other heads, the claimant is not entitled to future loss of income.
The claimant is aged 22 years and a young man carrying on his coolie work. He has sustained a serious fracture to his right lower limb. According to Ex.P.15, he has 50% permanent disability. Therefore, taking these aspects into consideration as his case for future loss of income is not considered, he should be, in my view, awarded a sum of Rs. 15,000/- towards loss of marriage prospectus. Accordingly, a sum of Rs. 15,000/- is awarded to him towards loss of marriage prospectus.
Thus the Appellant/claimant in all is entitled to a total compensation of Rs. 1,00,000/- as against Rs. 69,000/-with interest at 6% per annum from the date of the petition till realisation. Accordingly, the appeal has to succeed in part.
In the result, for the foregoing reasons, I proceed to pass the following:
ORDER
i) The appeal is allowed in part;
ii) The impugned judgment and award of the Tribunal in so for as the Appellant/ claimant passed in MVC No. 215 of 2007 by the Principal Civil Judge (Sr. Dn.) and MACT, Mandya, is modified and the Appellant/claimant is awarded a total compensation of 1,00,000/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 69,000/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 31,000/- which carries interest at 6% p.a. from the date of the petition till realisation;
iii) The third Respondent-insurer shall deposit the entire enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of a copy of the judgment and award;
iv) Out of the enhanced compensation, 50% of the same with proportionate interest shall be deposited in name of the Appellant in any Nationalised/Schedule Bank for a period of 5 years, renewable for a further period of 5 years. He is entitled to withdraw the interest accrued thereon periodically.
v) The balance of 50% with interest proportioned is ordered to be released in favour of the Appellant. Office to draw the award accordingly.