Smt. Gowramma vs Rajesh and National Insurance Co. Ltd.

H.S. Kempanna

This appeal is by the claimant seeking for enhancement of compensation in respect of the personal injuries sustained by him in a motor accident that took place on 5.2.2006 at about 10.30 a.m. near Kempegowdanadoddi of Kanakapura Taluk involving the bus bearing Regn.No. KA-16-A-6633, owned by the first respondent and insured with the second respondent at the relevant point of time. In the impugned accident she sustained severe injuries for which she took treatment in the hospital by spending huge money. Despite the same, she is not completely cured of her injuries, due to which she is unable to carry on her avocation which has resulted in loss of income to her. Accordingly, she sought for grant of compensation from the respondents.

2., After service of notice, the first respondent-owner remained absent and hence, he was placed exparte. The second respondent insurer appeared and contested the claim of the claimant. They contended that the accident in question has not taken place due to the fault of the driver of the bus, on the other hand, it was due to the negligence of the claimant herself. They further contended that the driver of the offending bus did not possess valid and effective driving license to drive the bus in question at the time of accident in question as such there is breach of terms and conditions of the policy committed by the owner. They further denied all the averments made by the claimant in her claim petition and contended that they are not liable to pay any compensation and accordingly they prayed for dismissal of the petition as against them.

On the basis of the above pleadings, the Tribunal framed in all four issues.

The claimant in support of her case got herself examined as PW1 and the doctor who had treated her as PW2. She has produced in all 6 documents which came to be marked as exhibits P1 to P6.

On behalf of the respondents, they did not choose to lead any oral evidence or got marked any documents in support of their case.

The tribunal on considering the oral and documentary evidence on record placed before it held that the accident has occurred solely on account of the rash and negligent driving of the offending bus by its driver and accordingly, the claimant has established actionable negligence. Further, looking to the evidence of the claimant and the medical officer who has examined her and the documents placed on record, awarded total compensation of Rs. 51,835/- with interest at 6% p.a. from the date of the petition till realisation and further saddled the liability of payment of compensation on the second respondent-insurer.

The appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.

Learned counsel appearing for the appellant-claimant submitted that the Tribunal has erred in not awarding commensurate compensation to the appellant/claimant under all heads despite the claimant placing clinching evidence supported with documents. Hence, a case for enhancement is made out.

Per contra, Learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.

Taking the rival submissions into consideration and the papers that are made available, the point that arises for my consideration is:

Whether the appellant-claimant has made out a case for enhancement of the compensation?

Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment that she has taken and the amount spent are not in dispute. The evidence on record and the documents placed on record reveal that the claimant in the impugned accident has sustained fracture of her left hand for which she took treatment in the hospital and spent huge money. Her testimony is fortified from the evidence of PW2, the medical officer and the wound certificate Ex.P5 placed on record. A perusal of evidence of PW2 medical officer reveals the claimant has sustained fracture of her left numerous which is also fortified from what is reflected in wound certificate Ex.P5. Further, the evidence of PW2 reveals that the claimant has disability to an extent of 19% of her left upper limb. Taking these material on record, the Tribunal has awarded Rs. 15,000/- towards injury, pain and suffering. The same, in my view, in the facts and circumstances is just and proper and does not call for any modification.

Further, the tribunal has awarded a sum of Rs. 11,735/- towards medical expenses relying upon the medical bills which are at Ex.P6. The Tribunal accepting the genuineness of the said bills has awarded the said sum cowards medical expenses. No grievance in respect of the same was made before this Court. Therefore, the same does not call for any modification.

The claimant has sustained fracture of her left hand for which she took treatment in the hospital. The evidence of the doctor reveals that she has sustained fracture of left humorous and took treatment in the hospital. The evidence of the doctor reveals that she has sustained fracture of the left humorous and has disability to an extent of 19% of her left upper limb. These material on record would go to show that the claimant has to suffer discomfort and unhappiness. Taking the same into consideration in the facts and circumstances, I deem fit to award a sum of Rs. 10,000/- towards loss of amenities which has not been considered and awarded by the tribunal.

Further, the Tribunal has not considered the case of the claimant for awarding any compensation towards conveyance, nourishing food and attendant charges. Having regard to the nature and degree of injuries the claimant has sustained, it follows that she must have spent some considerable amount towards conveyance, nourishing food and attendant charges. The accident has taken place on 5.2.2006. Taking all these factors into consideration, I deem it fit to award a sum of Rs. 5.000/- towards conveyance, nourishing food and attendant charges which has not been considered and awarded by the tribunal.

The next aspect that dwells upon for consideration is the determination of income of the claimant, compensation to be awarded "towards loss of income during laid-up period and future loss of income. The claimant has claimed that she is aged 45 years, an agriculturist and having a dairy earning more than Rs. 5,000/- p.m. However, in respect of the age of the claimant the Tribunal has determined 60 years relying on the stray admission that she ahs given in the cross examination, In the claim petition she has claimed that she is aged 45 years. Before the Tribunal at the time she has tendered her evidence, she has claimed that she is aged 45 years. In the wound certificate-Ex.P5, her age is mentioned as 45 years. In the charge sheet Ex.P2 that has been produced where she ahs been cited as a charge sheet witness, her age is mentioned as 45 years. Therefore, under these circumstance, we can safely take her age as between 46-50 years as against 60 ye are-determined by the Tribunal. Therefore, taking the age of the claimant at 46 years, the proper multiplier that becomes applicable to the facts of the case is 13.

Coming to the question of income, as already pointed out, the claimant has claimed that she is an agriculturist running a dairy in the village and earning more than Rs. 5,000/- p.m. However, as she is a rustic villager, she has not maintained any documents to show what exactly is her income. The accident has taken place on 5.2.2006. Therefore, having regard to the age of 46 years in the facts and circumstances, we can safely take even to be a house wife, her services to the family could be assessed at Rs. 100/- per day and accordingly, her income has to be determined at Rs. 3,000/- p.m. which has been rightly done by the Tribunal. Having determined the income of the claimant at Rs. 3,000/- p.m., the next question that falls for consideration is, the compensation that has to be awarded towards loss of income during laid-up period, which the Tribunal has not considered. The evidence on record reveals that the claimant has sustained fracture of her left numerous and she has disability to an extent of 19% of her left upper limb. Therefore, under these circumstances, in my view, the claimant could not have attended to her normal work for a period of three months for which period she should be compensated towards loss of income. Therefore the claimant is awarded a sum of Rs. 9,000/- ( Rs. 3,000 x 3) towards loss of income during laid up period at the rate of Rs. 3,000/- p.m. for three months.

The next aspect that falls for consideration is what is the compensation that is to be awarded towards loss of future income to the claimant. The age of the claimant is determined as 46 years. Therefore, the proper multiplier that becomes applicable to the facts of the case is 13. Coming to the question of permanent disability, the medical officer has stated that the claimant has permanent functional disability to her left upper limb to an extent of 19% and to an extent of 6% to her whole body. Therefore, taking all these factors into consideration the claimant, in my view, is entitled to Rs. 28,080/- ( Rs. 3,000 x 12 x 13 x 6/100) towards future loss of income as against Rs. 28,080/- awarded by the tribunal as against Rs. 15,000/- awarded by the tribunal.

Further, the Tribunal has awarded a sum of Rs. 10,000/- towards future medical expenses relying upon the testimony of PW2 medical officer which amount is required by the claimant for removal of the implants which are at situ. The same in the facts and circumstances, is just and proper and does not call for any modification.

Thus, in all the appellant/claimant is entitled to total compensation of Rs. 88,795/- with interest at. 6% p.a. from the date of the petition till realisation as against. Rs. 51,835/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of compensation is as follows :-

1

Towards injury, pain and suffering

Rs. 15,000/-

2

Towards Medical expenses

Rs. 11,715/-

3

Towards conveyance, nourishing Food and attendant charges

Rs. 5,000/-

4

Towards loss of amenities, discomfort & unhappiness

Rs. 10,000A

5

Towards loss of income during laid up period

Rs. 9,000/-

6

Towards Loss of future income

Rs. 28,080/-

7

Towards future medical expenses

Rs. 10,000/-

Total

Rs. 88,795/-

In the result for the foregoing reasons, I proceed to pass the following:

ORDER

1) Appeal is allowed in part.

2) The impugned judgment and award of the Tribunal is modified and the appellant is awarded a total compensation of Rs. 88,795/- with interest at 6% per annum from the date of petition till realisation as against Rs. 51,835/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 36,960/- with interest at 6% per annum from the date of petition till realisation.

3) The second respondent herein-Insurer shall deposit the entire enhanced compensation of Rs. 36,960/-, rounded of to Rs. 37,000/-, with interest at 6% per annum from the date of petition till realisation before the Tribunal within four weeks from the date of receipt of the copy of the judgment arid award.

4) On deposit of the enhanced compensation with interest, a sum of Rs. 20,000/- with proportionate interest is ordered to be deposited in the name of the appellant in any nationalized/scheduled bank for a period of three years renewable for a further period of three years. She is entitled to withdraw the interest accrued on the said deposit periodically. The balance compensation of Rs. 17,000/ with proportionate interest shall be released in favor of the appellant/claimant.

Office to draw the award accordingly.