Sri Arunachalam vs Sri N. Ramakrishna Murthy

This is a claimant''s appeal seeking for enhancement of compensation in respect of the injuries, which he has sustained in a motor accident. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal.

The petitioner instituted claim petition against the respondents claiming compensation in a sum of Rs. 6,00,000-00. It is his case that he was aged 22 years, a mechanic by profession earning more than Rs. 4,500-00 per month. On 12.10.2004 at about 8.10 a.m. the petitioner was walking on Swagath Main Road, Bangalore. When he was near Byrasandra Junction on the said road, a motor cycle bearing No. CKH 6672 ridden by his rider at a high speed in a rash and negligent manner came and dashed against him. On account of the impact, he sustained grievous injuries on his lower limb, for which he took treatment in the hospital by spending huge money. Despite the same, he is not completely cured of the injuries due to which he is unable to carry on his avocation as mechanic, which has resulted in loss of income. The respondents are the owner and insurer of the offending motor cycle. Hence they are jointly and severely liable to pay compensation as claimed in the claim petition.

After service of notice, the respondents appeared through their Counsel. They filed statement of objections. The first respondent denied all the averments made by the claimant. He contended that the accident did not take place on account of the negligence of the rider of the motor cycle, on the other hand, it was due to the negligence of the claimant himself. He further contended that the motor cycle had been insured with the second respondent as on the date of the accident, who had issued a valid policy, which was in force. If for any reason he is held liable to pay compensation, the same may be saddled on the second respondent-insurer.

The second respondent insurer towing the line of the first respondent-owner in connection with the manner in which the accident took place, contended that as the accident has not taken place due to the fault of the rider of the motor cycle, they are not liable to pay any compensation. However they admitted having issued a valid policy in respect of the motor cycle which was in force but their liability is subject to the terms and conditions of the policy issued in favour of the first respondent-owner. In sum and substance, they contended that as the accident has not taken place on account of the fault of the rider of the motor cycle, they are not liable to pay any compensation-;

The Tribunal on the basis of the aforesaid pleadings, framed the following three issues:

Whether the petitioner proves that the injuries sustained by him in RTA, that occurred on 12-10-2004 at about 8.10 a.m., on Swagath Main Road, near Byrasandra Junction, was due to rash and negligent act of the driver of motorcycle bearing No. KA.02.P.8017 as stated in the petition?

Whether the petitioner proves that he is entitled for compensation? If so, what amount and from whom he is entitled to?

What order?

The claimant in support of his case got himself examined as P.W-1 and two more witnesses as P.Ws-2 and 3. He produced 13 documents, which came to be marked as Exs.P-1 to P-13. On behalf of respondents, they got examined one of the official of the second respondent as R.W-1 and produced two documents, which came to be marked as Exs.R-1 and 2.

The Tribunal on the basis of the oral and documentary evidence on record held that the accident in question has taken place on account of the actionable negligence of the rider of the motor cycle resulting in injuries to the claimant. It further looked into the material on record including the medical evidence and awarded in all a sum of Rs. 97,500-00 under various heads, with interest at 6% p.a. from the date of petition till realisation. It further directed the second respondent-insurer to pay the compensation awarded and to recover the same from the first respondent-owner.

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

The learned Counsel appearing for the appellant-claimant contended that the Tribunal has erred in not awarding commensurate compensation under the heads pain and suffering., conveyance, nourishment and attendant charges, loss of amenities and it has also not considered the fact that the claimant has lost his marriage prospects despite he having placed cogent evidence supported with documents. Therefore a case for enhancement is made out.

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

Taking the rival contentions into consideration, the evidence and documents on record, the point that arises for consideration is:

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

The accident having taken place on account of the actionable negligence of the rider of the motor cycle resulting in injuries to the claimant is not disputed before us. It is the case of the claimant that he was aged 22 years, a mechanic by profession., earning Rs. 4,500-00 per month. In the impugned accident, he sustained fracture to his right leg, i.e., anterior cruciate ligment tear of right knee and inter vertebral disc prolpase and L 4 - L 5 level. He was treated at Chinmaya Hospital. He has produced the wound certificate Ex.P-4. In support of his claim he has examined the Medical Officer-P.W-2, who has fortified the testimony of the claimant in respect of the injuries he has sustained in the impugned accident. Taking all these aspects into consideration, the Tribunal has awarded a sum of Rs. 40,000-00 towards pain and suffering. Having regard to the nature and degree of the injuries the claimant has sustained, we are of the view the amount of Rs. 40,000-00 that has been awarded by the Tribunal under the head of pain and suffering is just and proper and does not call for any interference.

Further, the Tribunal has awarded a sum Rs. 28,000-00 towards medical expenses relying on the medical bills which are at Ex.P-8 series. No grievance in respect of the same is made before us. Hence, the amount awarded by the Tribunal under medical expenses is affirmed.

However, the Tribunal has awarded a sum of Rs. 4,000-00 only towards conveyance and nourishment charges. The material on record reveals that the claimant has taken treatment in hospital for about 10 days, during which period he has also undergone surgery. The accident has taken place in the year 2004. Having regard to the nature of injury sustained, more particularly anterior cruciate ligament tear, we deem it fit to award a sum of Rs. 10,000-00 towards conveyance, nourishment and attendant charges, in addition to a sum of Rs. 4,000-00 awarded by the Tribunal.

Further the Tribunal has awarded a sum of Rs. 15,000-00 towards loss of amenities. In our view it is on the lower side. Therefore in the facts and circumstances, we deem it fit to award a further sum of Rs. 10,000-00 towards loss of amenities in addition to Rs. 15,000-00 awarded by the Tribunal.

The next question that dwells for our consideration is the determination of the income of the claimant, loss of income during the laid up period and loss of future income. The claimant has claimed that he was aged 22 years as on the date of the accident, a mechanic by profession and earning more than Rs. 4,500 per month. In support of his claim, except producing the salary certificate, he has not placed any clinching material to show that he was working as mechanic as on the date of the accident. However, the Tribunal in the absence of any clinching material on record has taken the income of the claimant at Rs. 3,500-00 per month. In the facts and circumstances, the income of the claimant determined by the Tribunal is just and proper and does not call for interference. The Tribunal taking the income of the claimant at Rs. 3,500-00 has awarded a sum of Rs. 10,500-00 towards loss of income during the laid up period. The injuries that the claimant has sustained have already been adverted to above. The Medical Officer who has been examined in the case by the claimant is not the Medical Officer who has treated him. There is no material on record to show any permanent disability suffered by the claimant on account of the injuries sustained in the accident. However, having regard to the claim of the claimant and the wound certificate Ex.P-4 placed on record which reveals that he has suffered a ligament tear, we are of the view that the claimant could not have attended to his work for a period of more than six months. In that view of the matter though there is no loss of future income, the claimant must be compensated towards loss of income during the laid up period. Therefore we deem it proper to award an additional sum of Rs. 10,500-00 in addition to Rs. 10,500-00 awarded by the Tribunal towards loss of income during the laid up period. The claimant has claimed that he was aged 22 years as on the date of the accident. It is brought to our notice that he is a bachelor. Having regard to the nature of injury sustained, the Tribunal ought to have awarded compensation towards loss of marriage prospects. Under these circumstances, we deem it proper to award a sum of Rs. 10,000-00 towards loss of marriage prospects. Further we find from the material on record that the Tribunal has not considered the case of the claimant to award any compensation towards future medical treatment. Having regard to the nature of the injury, more particularly the ligament tear, we are of the view that the claimant should be awarded compensation towards future medical expenses. Hence we award Rs. 10,000-00 towards future medical expenses. Therefore the appellant-claimant in all, would be entitled to compensation of Rs. 50,500-00 over and above the compensation awarded by the Tribunal with interest at 6% p.a. from the date of petition till realisation Accordingly, we proceed to pass the following order:

Appeal is allowed in part.

The appellant-claimant is awarded additional compensation of Rs. 50,500-00 with interest at 6% per annum from the date of petition till realisation, over and above the compensation awarded by the Tribunal.

The enhanced compensation is ordered to be released with interest in favour of the appellant-claimant.

In so far as the order passed by the Tribunal directing the second respondent insurer to pay and then recover from respondent No. 1, is affirmed.