Shashidhar vs Anil

P.D. Waingankar, J.—This appeal by the appellant/claimant is preferred questioning the correctness of the judgment and award dated 09.05.2008 passed in M.V.C. No. 194/2006 on the file of the Motor Accident Claims Tribunal-II, Bagalkot, insofar as it relates to the quantum of compensation awarded by the Tribunal. On 01.02.2006, the appellant/claimant along with his friend one Prabhu as a pillion rider was proceeding on his Hero Honda Splendor motor cycle bearing registration No. KA-29/L-3715 on Badami- Kulageri road. While he was so proceeding slowly and cautiously, a tipper lorry bearing No. KA-22/A-2704 came from the opposite direction in a rash and negligent manner and dashed against the motor cycle and as a result, the claimant fell down and suffered grievous injuries. He was immediately shifted to a Government Hospital at Badami and thereafter to Dr. Daddenavar''s Hospital at Bagalkot where he was treated as an inpatient. He also underwent surgeries. He spent substantial amount for his treatment. He lost his earnings and suffered disability in spite of the best treatment. He filed a claim petition in M.V.C. No. 194/2006 u/s 166 of the Motor Vehicles Act, against owner and insurer of the tipper lorry claiming compensation of Rs. 10,00,000/-.

The claim petition was opposed by the insurance company. In its statement of objections, the insurance company denied all the material averments made out in the claim petition as to the manner of the accident, the nature of injuries sustained by the claimant, the nature and period of treatment, expenditure incurred for the treatment, avocation of the claimant, his income, loss of earnings, the disability etc., etc., apart from denying the negligence attributed to the driver of the tipper lorry and sought for dismissal of the claim petition.

The Tribunal upon consideration of the respective contentions taken by the claimant and the insurance company framed issues regarding negligence and quantum of compensation to be awarded. In order to establish the claim, the claimant got himself examined as P.W. 1 apart from examining Dr. Vijaya Kanthi as P.W. 2 and Dr. M.S. Daddenavar as P.W. 3. Claimant also relied upon as many as 15 documents marked as Exs. P.1 to P. 15. On behalf of the insurance company, insurance policy was marked as Ex. R. 1 and a copy of the driving licence as Ex. R.2.

The Tribunal upon hearing the arguments addressed by both the learned counsel appearing for the claimant and the insurance company and upon going through the evidence on record both oral and documentary and more particularly, the police papers i.e., Ex. P.1-FIR, Ex. P.2-complaint, Ex. P.3-spot panchanama, Ex. P.4-M.V.I Report and Ex. P.7-charge-sheet recorded a finding that the accident and the resultant injuries sustained by the claimant were due to rash and negligent driving of the tipper lorry by its driver. Sofar as the quantum of compensation is concerned, the Tribunal having considered the evidence on record awarded a sum of Rs. 60,000/- under the head ''pain and suffering'', Rs. 10,000/- towards ''loss of amenities'', Rs. 46,700/- towards medical expenses, Rs. 2,000/- towards special nourishment and attendants charges and Rs. 85,000/- under the head ''disability''. Thus, the Tribunal awarded a total compensation of Rs. 2,03,700/-.

The appellant/claimant not being happy with the quantum of compensation awarded by the Tribunal has preferred this appeal. The grounds urged are that the compensation awarded by the Tribunal under all heads is on the lower side and requires to be enhanced to a considerable extent.

Per contra, the learned counsel appearing for the insurance company would contend that the Tribunal upon proper appreciation of the evidence both oral and documentary has awarded just compensation under all heads and the question of interference by this Court does not arise and hence he sought for dismissal of the appeal.

I have heard the submissions of both the learned counsel. Perused the records secured from the Tribunal.

Insofar as the finding recorded by the Tribunal on the issue regarding negligence the same has not been seriously challenged by the insurance company. Even otherwise, the Tribunal upon consideration of the oral and documentary evidence, more particularly, the police papers and that the charge-sheet was filed against the driver of the tipper lorry, has rightly recorded a finding that the accident and the resultant injuries sustained by the claimant were on account of rash and negligent driving of the tipper lorry by its driver.

Coming to the compensation to be determined, it is noticed that the Tribunal has awarded a total compensation of Rs. 2,03,700/-. The evidence of the claimant who has been examined as P.W. 1 would go to show that he sustained grievous injuries for which he was initially treated in Primary Health Centre, Badami. Ex. P.5 is the wound certificate issued by the Primary Health Centre, Badami, wherein the injuries shown are as under:

CLW right eyebrow 2 cms. x 1/2 cm.

CLW anterior chest 10 cms. x 1/2 cm.

CLW both lips 1/2 x 1/2 cms.

Loss of upper incisor teeth with fracture aructria (missing) 12th upper and front teeth.

Fracture of both bones left leg.

Fracture of proximal phalanx right middle finger.

It is evident from the medical records that after initial treatment at Primary Health Centre at Badami, he was shifted to Daddenavar Hospital & Research Centre at Bagalkot. Ex. P.6 is the certificate issued by Dr. M.S. Daddenavar, an Orthopedic Surgeon. It reveals that the claimant had fracture of both bones of left leg and fracture of proximal phalynx of right middle finger and fracture of 12 aructria (missing) upper and front tooth. The claimant has also produced the disability certificate issued by Kanthi Nursing Home, Bagalkot, which is marked as Ex. P.14. Ex. P.14 also reveals that the claimant sustained fracture of both bone of left leg and fracture or proximal phalanges right middle finger. Ex. P.15 is the discharge summary issued by Daddenavar Hospital & Research Centre, Bagalkot. Even Ex. P. 15 confirms the aforesaid injuries sustained by the petitioner. It is seen from the discharge summary that the claimant underwent closed reduction and internal fixation of "JK" nail with interlocking screws of left leg under special anesthesia on 02.02.2006. Claimant also underwent open reduction and internal fixation of "K" wire to the right middle finger on the same day. Even after his discharge from the hospital, he took follow-up treatment with the same doctor. Therefore, having regard to the nature of injuries, the nature of treatment and the period of hospitalisation, an amount of Rs. 60,000/- is awarded by the Tribunal under the head ''pain and sufferings'' which appears to be just and proper and therefore, the question of enhancement of the said amount awarded by the Tribunal does not arise.

So far as the amount of Rs. 46,700/- awarded by the Tribunal under the head medical expenses is concerned, it is supported by the medical bills and therefore, in my opinion, it is just and proper.

The Tribunal has awarded a meagre amount of Rs. 2,000/- towards special nourishment and attendants charges. It is a fact that the claimant sustained fracture of both bones of left leg for which he underwent two surgeries and therefore, it was virtually impossible for him to move from the bed at least for a period of 3 to 4 months. He was in constant need of service of an attendant for a period of 3 to 4 months. Therefore, in addition to Rs. 2,000/- awarded by the Tribunal towards special nourishment and attendant charges, I deem it just and proper on my part to award another sum of Rs. 12,000/- under the head ''attendant''s charges'' at the rate of Rs. 3,000/- per month for a period of four months.

The Tribunal has failed to award any amount under the head ''loss of earnings during the period of treatment''. It is borne out from the records that the claimant was incapacitated from attending to his work for a minimum period of four months on account of the fracture of both bones of his left leg. The claimant has spoken in his evidence that he was a student as well as a tutor, but no evidence is forthcoming to support the same. Under the circumstances, having regard to his age as 20 years at the time of the accident, I deem it appropriate on my part to take the monthly income of the claimant as Rs. 3,000/-. On account of the accident, claimant has lost his income for a period of four months. So, an amount of Rs. 12,000/- is awarded under the head ''loss of earnings during the period of treatment''.

The Tribunal has awarded a sum of Rs. 85,000/- under the head ''disability''. The claimant has examined Dr. Vijay, an Orthopedic Surgeon at Kanthi Nursing Home, Bagalkot as R.W. 2. His evidence would go to show that the claimant had suffered fracture of both bones of left leg and fracture of proximal phalanges of right middle finger, for which he underwent surgeries. His evidence would further go to show that on 18.10.2007 he examined the claimant for assessment of disability and observed as under: 1. Malunited fracture left leg both bones.

Implant in situ in left tibia.

Malunited fracture proximal phalanges right middle finger.

Hypotrophy of left leg muscles.

Restriction of left knee joint by 30%

Shortening of left leg by 21/2 cms.

Thus, he has opined that the claimant has suffered 40% permanent physical disability to the whole body on account of which he cannot do heavy work as he was doing prior to the accident. Though P.W. 2 is the doctor who treated the claimant, having regard to the nature of injuries and the nature of treatment, the disability of 40% spoken to by him seems to be on higher side. Though the Tribunal has taken into account the disability at 40%, its judgment does not reveal as to how it has come to the conclusion to award a sum of Rs. 85,000/-. Upon consideration of the evidence of R.W. 2 and the disability certificate, I am inclined to take the disability to the whole body at 20%. Therefore, the monthly loss of future income on account of disability comes to Rs. 600/- and annually Rs. 7,200/-. The claimant is hardly aged about 20 years at the time of the accident, therefore, the multiplier to be pressed into service is ''18''. If the annual loss of future income of Rs. 7,200/- is multiplied by ''18'', the total loss of future income on account of disability comes to Rs. 1,29,600/-. So, an amount of Rs. 1,29,600/- is awarded under the head ''loss of future earnings on account of disability'' as against an amount of Rs. 85,000/- awarded by the Tribunal.

Thus, the claimant is held to be entitled for the compensation under various heads as under:

In all, the appellant/claimant is held to be entitled for a total compensation of Rs. 2,62,300/- as against Rs. 2,03,700/- awarded by the Tribunal. There shall be an enhancement of Rs. 58,600/-. Accordingly, I proceed to pass the following:

ORDER

(i) The appeal is partly allowed. The judgment and award dated 09.05.2008 passed in M.V.C. No. 194/2006 on the file the Motor Accident Claims Tribunal-II Bagalkot, stands modified.

(ii) The appellant/claimant is awarded enhanced compensation of Rs. 58,600/- together with interest at the rate of 6% per annum from the date of claim petition till realisation.

(iii) The 2nd respondent-insurance company is directed to deposit the enhanced compensation within a period of 30 days from the date of receipt of the award

(iv) In the event of deposit, the entire compensation amount shall be released to the appellant/claimant.