Sri. C.H. Jayanna vs Sri. Nelson Paul Rebellow and ICICI Lombard General Insurance Company Limited

Budihal R.B., J.—This appeal is preferred against the judgment and award passed by the XI Additional Judge, Member, MACT, Court of Small Causes-12, Bengalore (for short Tribunal''), in MVC No. 7386/2008 dated 13.1.2010. By the impugned judgment and award, the Tribunal has awarded compensation of Rs. L92,000/- with interest at 6% p.a. from the date of petition till the date of realization for the injuries sustained by the appellant-claimant in the motor vehicle accident. Brief facts of the case are that, the appellant-claimant on 11.10.2007 at about 6.15 p.m. was riding motor cycle bearing registration No. KA-01-ED-4889 near milk booth at A.N. Krishna Rao Road from Lalbagh West Gate towards Home School Circle with great care at that time, Tata Indica Car bearing Registration No. KA-14-A-2753 driven by its driver came in high speed and rash and negligent manner and dashed against motor cycle. Due to the said impact, the claimant sustained grievous injuries on the right leg and immediately, he was taken to KIMS Hospital, Bangalore. He was an inpatient from 11.10.2007 to 25.3.2008. Prior to the accident, the claimant was hale and healthy and he was working as Inspector of Police earning Rs. 14,243/- per month. On account of the said injuries, he could not attend to his work as he was doing earlier. It is the case of the claimant that the Basavanagudi police have registered a case against the driver of the Tata India Car. Respondent No. 1-the owner and respondent No. 2-the Insurer of the Vehicle, both are jointly and severally liable to pay compensation. Respondent No. 2-Insurance Company by filing written statement has denied the averments made in the claim petition and also denied that it had issued a policy. The driver of the offending car drove the same without having a valid and effective driving licence and the owner of the vehicle willfully entrusted the vehicle knowing fully well that the driver had no effective driving licence. Hence, sought for dismissal of the claim petition. The Tribunal on consideration of the oral and documentary evidence on record, ultimately, has awarded Rs. 30,000/- towards pain and suffering, Rs. 25,000/- towards medical expenses and other incidental expenses, Rs. 87,000/- towards loss of earning during the period of treatment and Rs. 50,000/- towards disability, loss of future happiness and loss of amenities and pleasure in future life. In all, it has awarded the compensation of Rs. 1,92,000/- with interest at 6% p.a. from the date of petition till the date of realization.

We have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for respondent No. 2-Insurance Company.

Learned Counsel appearing for the appellant, during the course of his arguments, submitted that the compensation awarded by the Tribunal is meager and it has to be reassessed. He submitted that the Tribunal has not appreciated both the oral and documentary evidence properly. He further submitted that adequate compensation has to be awarded to the appellant by allowing the appeal.

Contrary to this, learned Counsel appearing for respondent No. 2-Insurance Company, during the course of his arguments, submitted that the Tribunal has taken all the facts into consideration and awarded just and reasonable compensation. There are no grounds for this Court to interfere with the impugned judgment and award passed by the Tribunal.

After hearing the arguments of learned Counsel for the both sides, and perusing the judgment and award passed by the Tribunal and oral and documentary evidence placed on record, the point that arise for our consideration is as under:

Whether the compensation awarded by the Tribunal is just and reasonable?

So far as the award of compensation towards medical expenses is concerned, the Tribunal has discussed in detail at paragraphs 16 and 17 of the judgment. Taking into consideration the medical bills issued from the hospitals, the Tribunal has rightly awarded Rs. 25,000/- towards medical expenses Regarding loss of earning during the period of treatment is concerned, the Tribunal has discussed at paragraph 18 and observed that the records produced before it does not disclose the period for which the claimant has been advised to take rest. In the absence of documents, it has taken loss of earning during the period of the treatment for six months and after deducting income tax, it has taken the salary of the claimant at Rs. 14,500/- and awarded Rs. 87,000/- towards loss of earning during the period of treatment. Therefore, the award of compensation under the heads ''medical expenses'' and ''loss of earning during the period of treatment'' is just and reasonable and it does not call for interference by this Court.

With regard to award of compensation of Rs. 30,000/- towards pain and suffering, it is necessary to look into the injuries sustained by the appellant-claimant. The Doctor, who was examined as P.W. 3, in his evidence, has deposed that the claimant is unable to walk without support, 15" varus angulation deformity in right knee and scar over the right thigh and knee, right patella and right tibia. He has further deposed that there is 3 cms. shortening in right thigh and 1 cm. shortening in the right leg and it is difficult for the claimant to sit, squat on the floor. He has assessed the disability of 15%, to the whole body. Looking to the nature of injuries sustained by the appellant-claimant, the amount of Rs. 30,000/- towards pain and suffering is inadequate. Therefore, the appellant-claimant is entitled an amount of Rs. 50,000/- towards pain and suffering as against Rs. 30,000/- awarded by the Tribunal.

Regarding disability, loss of future happiness, loss of amenities and pleasure in future life is concerned, the Tribunal has awarded Rs. 50,000/-. As we have already discussed about the nature of injuries sustained by the appellant-claimant and the percentage of disability to the whole body, the award of Rs. 50,000/- is on the lower side. Hence, we deem fit to award Rs. 75,000/- towards disability, loss of future happiness, loss of amenities and pleasure in future life, which is just and reasonable. Therefore, the appellant-claimant is entitled to Rs. 2,37,000/- as against Rs. 1,92,000/. He is entitled to enhanced compensation of Rs. 45,000/. In the result, the appeal is allowed in part. The judgment and award dated 13.1.2010 passed by the XI Additional Judge, Member, MACT, Court of Small Causes-12, Bengaluru in MVC No. 7386/2008 is hereby modified.

Respondent No. 2-Insurance Company is directed to deposit the enhanced compensation of Rs. 45,000/- with interest at 6% p.a. from the date of petition till the date of realization within three weeks from the date of receipt of a copy of this judgment.

The enhanced compensation of Rs. 45,000/- with accrued interest shall be released in favour of the appellant- claimant.