Shivashankar Naika vs Mohammed and Others

N.K. Patil, J—Though this appeal is posted for orders, it is taken up for final disposal with the consent of the learned counsel appearing for the parties.

This appeal by the claimant is arising out of the impugned judgment and award dated 15th September 2010 passed in MVC No. 71/2010 on the file of the District Judge, Additional MACT II, I Fast track Court, Shimoga (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 1,10,769/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road traffic accident.

It is the case of the appellant that, he was aged about 38 years as on the date of accident, hale and healthy and working as police Constable in KSRP. On 11.7.2004 at about 5.15 p.m. the appellant and his colleague were coming from Machenahalli to Shimoga on motor cycle No. KA-14-E-9483. At that time the Maruthi car bearing No. KA-17-M-2063 came in a rash and negligent manner from Shimoga side and dashed against the motor cycle and due to the said accident the appellant sustained grievous injuries. The left leg was fractured and there was a blood clot outside the brain and blood was oozing. Left side Petmus temporal bone was fractured. Immediately after the accident, the appellant was shifted to MC. Gann Hospital, and subsequently he was shifted to Nanjappa Hospital, Shimoga on account of which he under gone treatment from 11.7.2004 to 18.07.2004 and he was inpatient for 7 days. The appellant has spent huge amount for medicines, treatment, food, conveyance and other charges. Inspite of best medical treatment, the appellant is suffering from the physical disability. Due to the accidental injuries and physical disability. It is not possible for him to carry on his profession as before. The doctors have advised for rest. Further case of the appellant is that, he has spent huge amount for treatment, conveyance, nourishing food and attendant charges. Taking all these factors into consideration, he filed a claim petition under Section 166 of MV Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. To substantiate his case, he examined himself as PW1 and PWs 2 and 3 and got marked documents as Exs. P1 to P99. Respondents examined RW1 and RW2 and got marked Exs.R1 to R5. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum of Rs. 59,269/- towards Medical treatment, Rs. 500/- towards Special diet, Rs. 1,000/- towards Conveyance and attendant charges, Rs. 25,000/- towards Pain and sufferings and Rs. 25,000/- towards Loss of comforts, happiness etc. in all, Rs. 1,10,769/- is awarded as compensation under different heads with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, so far as it relates to pain and sufferings, medical and traveling expenses, attendance charges, special diet etc. loss of future earning capacity and also disability on account of the injuries sustained in the road traffic accident, appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3rd respondent.

Sri G. Nataraj, appearing for M/S. Law Nest, learned counsel appearing for the appellant submits that, the Tribunal erred in not awarding reasonable compensation towards pain and sufferings, loss of amenities and future medical expenses and other heads. Further he submitted that the appellant examined the Doctor and got marked Exs. P83 to Ex. P97. The doctor has deposed that the left leg was fractured and blood was clotted outside the brain and blood was clotted outside the brain and blood was oozing. The left side Petmus temporal bone was fracture. The Tribunal has erred in not assessing the reasonable functional and whole body disability as per Exs. P89-P97. In view of the non-assessment of percentage of disability, the Tribunal erred in not awarding compensation towards disability. Even now he is suffering from the injuries sustained in the accident but the Tribunal has not taken this aspect in to consideration. The compensation awarded is lower side and therefore, impugned judgment and award passed by the Tribunal is liable to be modified awarding just and reasonable compensation.

Per contra, Sri. R. Gunashekar, the learned counsel appearing for the 3rd respondent-Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and after considering the oral and documentary evidence and hence, interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that the appellant was aged about 38 years as on the date of accident and hale and healthy and working as Police Constable in KSRP at Kote Thanda, Ayanur, Shimoga. He met with an accident on 11.7.2004 and sustained grievous injuries as stated supra and he has examined the doctor and with reference to Exs. P92 - P97 the doctor deposed that the left leg was fractured and blood was clotted outside the brain and blood was oozing. Further he under gone treatment for period of 7 days in the hospital from 11.07.2004 to 19.07.2004. He has spent reasonable amount for medical treatment and other heads. There is permanent disability and the appellant has to suffer the disability thought his life. The Tribunal has erred in appreciating the oral and documentary evidence on record. Taking all these aspects into consideration and the evidence of doctor, wound certificate and age and avocation of the appellant we deem it fit to award another Rs. 50,000/- with 6% interest in addition to the amount awarded by the Tribunal.

Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award dated 15th September 2010 passed by the Tribunal in MVC No. 71/2010 is hereby modified. The total compensation payable comes to Rs. 1,60,769/- with 6% interest per annum on the enhanced sum as against Rs. 1,10,769/-, excluding interest for the delayed period of 1415 days in filing the recalling application on enhanced compensation.

The 3rd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 50,000/- with interest at 6% p.a., from the date of petition till the date of realisation, excluding interest for the delayed period of 1415 days in filing the recalling application, within three weeks from the date of receipt of a copy of this judgment and award.

The enhanced amount with interest shall be released in favour of the appellant immediately, on deposit by the Insurer.

Draw the award, accordingly.