SRI. BUDDAPPA vs ANJINEYA

This appeal is filed by the claimant challenging the judgment and award passed by the Tribunal on the ground of negligence as well as quantum.

Heard Sri. Amaresh N., learned counsel appearing for the appellant/claimant and Sri. Janardhan Reddy, learned counsel appearing for respondent No.2/insurer of offending lorry. Perused the Judgment and award passed by the Tribunal including the records.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 23.04.2008, points that arise for consideration in the appeal are: "1) Whether the finding of the Tribunal on negligence in holding that accident occurred due to 40% contributory negligence on the part of deceased in riding his two wheeler and 60% negligence on the part of the driver of the lorry bearing registration No.CNG-5585 is sustainable in law?

2) Whether quantum of compensation awarded by the Tribunal in MVC No.95/2008 is just and reasonable or does it call for enhancement?"

Sri. Amaresh N, learned counsel appearing for the claimant submits that claimant while traveling in a motorcycle of one Ekal Muniyappa as a pillion rider, accident took place and he sustained injuries and the rider Ekal Muniyappa succumbed to the injuries. Legal Representatives of Ekal Muniyappa filed a claim petition in MVC No.94/2008 and appellant herein filed a claim petition in MVC No.95/2008 before the Ist Additional Civil Judge (Sr. Dn.) and Additional MACT, Kolar, seeking compensation from the owner and insurer of the lorry. The Tribunal by its common impugned judgment has held that accident occurred due to 40% contributory negligence on the part of deceased in riding his two wheeler and 60% negligence on the part of the driver of the lorry. Claimants in MVC No.94/2008 aggrieved by the said finding of the Tribunal challenged the same by preferring an appeal in MFA No.5839/2009 before this Court and this Court by judgment dated 26.11.2013 partly allowed the appeal and modified the finding of the Tribunal both on negligence as well as quantum and held that accident had occurred due to sole rash and negligent driving of the driver of the lorry and enhanced the compensation. The above fact is not disputed by Sri. Janardhan Reddy, learned counsel appearing for respondent No.2/insurer of the offending lorry. If that is so, finding of the Tribunal on negligence is to be modified holding that accident had occurred due to sole rash and negligent driving of the lorry. Regarding quantum.

Regarding quantum, learned counsel appearing for the claimant submits that compensation awarded by the Tribunal is on the lower side and therefore, he prays for allowing the appeal both on negligence as well as quantum.

As per Ex.P8-wound certificate, the claimant had sustained following injuries:- a) Multiple abrasion over upper lip varying size.

b) Multiple abrasion over medial maleoli on left leg of varying size.

c) Swelling and tenderness over right lower limb and multiple punctured wound on right leg.

d) Fracture of both bones of right leg. As per Ex.P14-X-ray, claimant had sustained fracture of both bones of right leg.

Injuries sustained and treatment underwent by the claimant are evident from the medical bills produced at Ex.P9, prescription-Ex.P10, photo with negative-Ex.P11, case sheet-Ex.P12, OPD sheet-Ex.P13 and corroborated by the oral evidence of the claimant and doctor, who were examined as PWs-2 and 3 respectively.

Considering the nature of injuries sustained by the claimant, a sum of Rs.50,000/- is awarded towards ''pain and suffering'' as against Rs.45,000/- awarded by the Tribunal.

As Rs.19,810/- awarded by the Tribunal towards ''medical expenses'' is based on the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head.

The claimant was treated as inpatient for a period of 25 days in Devraj Urs Medical College, Kolar. Considering the duration of treatment, a sum of Rs.12,000/- is awarded towards ''incidental expenses'' such as conveyance, nourishment and attendant charges as against Rs.6,480/- awarded by the Tribunal.

The claimant claims to have been working as a mason and earning a sum of Rs.10,000/- per month, but the same is not established by producing any documents. In the absence of proof of income, considering his age as 30 years, year of accident as 2008 and avocation as daily wager, his income is assessed at Rs.4,500/- per month. The nature of injuries suggest that the claimant must have been under rest and treatment for a period of 4 months and therefore a sum of Rs.18,000/- is awarded towards ''loss of income during laid up period'' as against Rs.4,600/- awarded by the Tribunal.

According to the claimant, doctor has stated that claimant has suffered 75% disability to the limb and 25% to the whole body. Considering the nature of injuries, disability caused to the whole body is taken at 12%. Multiplier applicable to his age group is ''17''. So, the ''loss of future income'' works out to Rs.1,10,160/- (4500 x 12 x 17 x 12/100) and it is awarded.

Considering the disability and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.30,000/- is awarded towards ''loss of amenities''.

Considering the nature of injuries, a sum of Rs.10,000/- is awarded towards ''future medical expenses for removal of implants''.

Thus, the compensation awarded by the Tribunal is reassessed as under:-

Heads Amount

1 Pain and sufferings 50,000

2 Medical Expenses 19,810

3 Incidental expenses 12,000

4 Loss of income during laid up period 18,000

5 Loss of amenities 30,000

6 Loss of future income 1,10,160

7 Future medical expenses 10,000

TOTAL 2,49,970

The claimant is entitled for a total compensation of Rs.2,49,970/- with interest at 6% per annum from the date of claim petition till the date of realisation.

Accordingly, the appeal is allowed in part. The judgment and award dated 04.04.2009 passed in MVC No.95/2008 by the I Additional Civil Judge (Sr. Dn.) and Additional MACT, Kolar, stands modified both on negligence as well as quantum. The claimant is entitled for a total compensation of Rs.2,49,970/- with interest at 6% per annum from the date of claim petition till the date of realisation.

The Insurance Company is directed to deposit the total compensation amount together with interest within two months from the date of receipt of a copy of this judgment. Out of the compensation amount to be deposited by the insurer of offending lorry, 70% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any nationalised nank/scheduled bank/post office for a period of 3 years with a right of option to withdraw interest periodically. Remaining 30% amount with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit.

The Tribunal while releasing 30% of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal. No order as to costs.