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Judgment
Budihal R.B., J.—This is an appeal preferred by the appellant-claimant being aggrieved by the judgment and award dated 28.9.2011 passed in MVC No. 2700/2010 by VI Additional Judge and Court of Small Causes and Motor Accident Claims Tribunal; Bangalore (for short ''the Tribunal''). By the judgment and award, the Tribunal has awarded compensation of Rs. 3,66,000/- with interest at 6% p.a. from the date of petition till realisation. Brief facts leading to this case are that on 24.3.2010 at about 11.15 a.m., when the appellant was proceeding on a motor cycle bearing No. KA-04-EJ-1530 as a pillion rider, on Old Madras Road and when he reached near Suranjan Das Road junction, at that time, a lorry bearing No. RJ-20-G-6168 driven by its driver at high speed in a rash and negligent manner came from behind and dashed against the appellant''s motor cycle. As a result of the accident, the appellant fell down and sustained grievous injuries. He was shifted to CMH hospital and after first aid, he was shifted to Hosmat hospital wherein he was treated as an inpatient from 24.3.2010 to 31.3.2010. He spent Rs. 2,00,000/- towards medical expenses and Rs. 50,000/- towards conveyance and nourishment. It is the case of the appellant that he was working as a mason and was also doing Gang Mastery work earning Rs. 10,000/- per month. Due to the accidental injuries, he is not in a position to do any work and thereby, he suffered loss of income.
Respondent Nos. 1 and 2 by filling objection statements in the claim petition, totally denied the case of the appellant. They contended that the lorry is insured with 3rd respondent-insurance company which has to indemnify the appellant. Respondent No. 3-insurance company filed a separate objection statement to the claim petition denying the averments made by the appellant and contended that at the time of the accident, the driver of the offending lorry and the rider of the motor cycle had no valid and effective driving licence to drive the said vehicle and hence there is no liability on its side. It has further contended that the amount of compensation claimed by the appellant is exorbitant and sought for dismissal of the claim petition. The Tribunal after considering the materials on record and the evidence, both-oral and documentary, partly allowed the petition and awarded the compensation of Rs. 3,66,000/- with interest at 6% p.a. from the date of petition till realisation.
Learned Counsel appearing for the appellant, during the course of his arguments, submitted that the appellant was working as a mason and also a Gang Mastery and was earning Rs. 10,000/- p.m. Though the appellant has led evidence before the Tribunal that he was earning Rs. 10,000/- per month, the Tribunal has assessed his monthly income at Rs. 4,000/- p.m. which is totally inadequate. He submitted that P.W. 2-Doctor, on clinical examination, has assessed the disability for the right lower limb stump at 90% and 30% to the whole body. He further submitted that in spite of the evidence of the Doctor regarding disability, the Tribunal has not taken this aspects into consideration. He submitted that the compensation awarded on all the heads is inadequate and requires reasonable enhancement. Therefore, impugned judgment and award passed by the Tribunal, is liable to be modified awarding just and reasonable compensation.
As against this, learned Counsel appearing for respondent No. 3 insurance Company, during the course of his arguments, submitted that the Tribunal taking into consideration the oral and documentary evidence on record has rightly assessed the monthly income of the appellant and awarded just and reasonable compensation. He submitted that there is no need for this Court to interfere with the impugned the judgment and award of the Tribunal. Hence he sought for dismissal of the appeal.
We have perused the judgment and award passed by the Tribunal and the oral and documentary evidence produced in the case.
The occurrence of the accident and the appellant sustaining injuries in the said accident are not in dispute. Perusal of the materials on record would disclose that the appellant has deposed in his evidence about the injuries-sustained. He has also deposed that he was doing mason work and also gang mastery work earning Rs. 10,000/- p.m. Looking to the evidence of P.W. 2 Doctor, he has deposed in his evidence that the appellant came to Hosmat hospital on 24.3.2010 with history of road traffic accident and on examination, he noticed crush injury right foot leading to below knee amputation and the said injuries were grievous in nature. He further deposed that the appellant underwent below knee amputation of right leg on 24.3.2010 and stump closure on 30.3.2010. The appellant was discharged on 31.3.2010 and was advised follow up treatment. The Doctor has further deposed that appellant was examined on 18.8.2011 and found that he was having the complaint of constant pain over the right below knee stump and movements of right knee were restricted and painful. He has deposed that the appellant cannot walk with artificial limb for more than half an hour as it increases pressure on the stump and he is not able to do masonry work. Therefore, looking to the evidence of P.Ws. 1 and 2, nature of injuries sustained by the appellant and his age and avocation, we are of the opinion, that the income of the appellant assessed by, the Tribunal at Rs. 4,000/- p.m. is on the lower side and we reassess his income at Rs. 6,000/- p.m. Accordingly, the appellant is entitled to Rs. 4,68,000/- towards loss of future income as against Rs. 1,56,000/- i.e., (6,000 x 12 x 13 x 50/100). He is also entitled to Rs. 1,50,000/- towards pain and suffering, Rs. 50,000/- towards medical expenses, Rs. 24,000/- towards loss of income during the laid up period (i.e. Rs. 6,000 x 4), Rs. 1,00,000/- towards loss of amenities, as against what has been awarded by the Tribunal under the said heads. In all, the appellant is entitled to compensation amount of Rs. 7,92,000/- with 6% interest per annum. After deducting Rs. 3,66,000/- awarded by the Tribunal, enhanced compensation comes to Rs. 4,26,000/- and the break-up is as follows:
Having regard to the facts and circumstances of the case as stated above, the appeal is allowed in part. The judgment and award dated 28.9.2011 passed in MVC No. 2700/2010 by VI Additional Judge and Court of Small Causes and Motor Accident Claims Tribunal, Bangalore, is hereby modified.
The 3rd respondent-insurance company is directed to deposit the enhanced compensation of Rs. 4,26,000/- with interest at 6% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.
Out of the enhanced compensation, Rs. 3,50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant for a period of ten years and renewable for another five years, with liberty to him to withdraw the interest accrued on it.
The remaining Rs. 76,000/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the insurance Company.
Draw the award, accordingly.