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Judgment
H.S. Kempanna, J.—This appeal by the claimant is directed against the common impugned judgment and award dated 26.2.2009 passed in MVC. No. 353/2007 by the Presiding Officer of MACT and X Addl. Judge Small Causes Court, Bangalore, seeking for enhancement of compensation in respect of the injuries sustained by the claimant in the motor accident.
The facts in brief are:
The Appellant-Claimant filed claim petition before the Tribunal seeking compensation in respect of the injuries which he sustained in a motor accident that took place on 29.11.2006 at about 8.15 p.m. while he was proceeding to his village Jodipura located on Malur-Narasapura Road involving the Lorry bearing Regn. No. KA-11-3238 owned by the first Respondent and insured with the second Respondent at the relevant point of time. In the impugned accident, he sustained severe injuries for which he took treatment in the hospital by spending huge amount. Despite the same, he is not completely cured of his injuries due to which, he is not able to carry on his avocation of agriculture which has resulted in loss of income. Accordingly, he prayed for grant of compensation.
On service of notice, the Respondents who are the owner and insurer appeared. Among them, only Respondent No.2 - insurer contested the claim by filing statement.
Respondent No. 2 insurer contended that the accident in question has not taken place due to the fault of the driver of the offending lorry, on the other hand, it has taken place on account of the fault of the claimant himself. They further contended that the driver of the offending lorry did not possess valid and effective driving licence to drive the same as such there is breach of terms and conditions of the policy and hence, they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal framed in all three issues.
The claimant and the co-claimant in support of their case got themselves examined as P Ws 1 and 2. They produced 13 documents which came to be marked as exhibits P1 to P13.
On behalf of the Respondents (Respondent No. 2-insurer), they got examined one witness as RW1 and produced two documents which came to be marked as exhibits R1 and R2.
The tribunal considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the fault of the driver of the offending lorry and as such the claimant has established actionable negligence. Further, the tribunal looking to the evidence of the claimant who is examined as PW2 and the doctor who examined him as PW3 and the medical records, awarded a total compensation of Rs. 20,000/- with interest at 6% p.a. from the date of the petition till realisation. It further saddled the liability of payment of compensation on the second Respondent-insurer.
The Appellant-claimant being aggrieved by the quantum of compensation awarded is in appeal before this Court.
Learned Counsel appearing for the Appellant-claimant submitted that the Tribunal has erred in not awarding commensurate compensation under all heads having regard to the nature of injuries, the evidence on record and 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?
The facts are not in dispute. The claimant having met with accident, injuries sustained, treatment that he has taken and the amount spent are not in dispute. The claimant claims that in the impugned accident he has sustained in all eight injuries which comprises of two grievous injuries and six simple injuries. Out of the two grievous injuries, one is fracture of incissor tooth and first injury is deep laceration. All other injuries are simple in nature. However, one of the injury among others is an avulsion of right bit toe. The claimant has claimed that he was in the hospital for 20 days. However, the claimant has not chosen to examine the doctor who has treated him. The tribunal taking into consideration the evidence of the claimant, the wound certificate-Ex.P8 and the discharge summary Ex.P9 has awarded a sum of Rs. 11,000/- towards injury, pain and suffering. As already pointed out Ex.P8 reveals that the claimant has sustained in all 8 injuries. Among the said injuries, injury Nos. 1 and 8 are described as grievous injuries, among which injury No. 8 is a fracture to the incissor tooth and injury No. 1 is a serious lacerated wound measuring 4 x 1 cms. situated over the head just above the right eye-brow. Among other six injuries, injury No. 6 is an avulsion of right toe nail. Despite these injuries, the Tribunal ahs awarded a sum of Rs. 11,000/-towards injury, pain and suffering. Having regard to the nature of injuries which the claimant has sustained, he is awarded a further sum of Rs. 9,000/- in addition to Rs. 11,000/- awarded by the Tribunal under the head towards injury, pain and suffering. Thus, the claimant in all is entitled to Rs. 20,000/- towards injury, pain and suffering.
Further, the Tribunal has awarded Rs. 4,000/-towards medical expenses relying upon the medical bills that have been produced by the claimant which are at Ex.P10 series. No grievance in respect of the same was made before this Court. Hence, the same does not call for any modification.
Apart: from this, the tribunal has awarded a sum of Rs. 5,000/- towards conveyance, nourishing food and attendant charges. The claimant claimed that he was in the hospital for 20 days. He is an agriculturist by profession. The accident has taken place on 29.11.2006. Having regard to the nature of injuries that he has sustained, the amount of Rs. 5,000/- awarded towards conveyance, nourishing food and attendant charges in the facts and circumstances, appears to be just and proper and does not call for any modification.
However, the learned Counsel for the Appellant submitted that the tribunal has not awarded compensation atleast towards loss of income during laid-up period. In this connection he submitted that since the claimant has sustained 8 injuries, among which two are grievous and one of the simple injury which is serious in nature i.e. avulsion of big toe nail, the claimant could not have attended to his normal work. This submission of the counsel for the Appellant in this connection has to be accepted and in the facts and circumstance, having regard to the nature of injuries sustained, in my view, the claimant could not have attended to his normal work atleast for a period of two months for which period he should be compensated towards loss of income. The claimant claims that he is aged about 35 years an agriculturist by profession. The accident has taken place on 29.11.2006. Therefore, the income of Rs. 3,000/- p.m. determined by the Tribunal is just and proper and taking the same for two months, the claimant is awarded a sum of Rs. 6,000/- towards loss of income during laid up period.
As already pointed out, the Appellant claimant has not chosen to examine the doctor who has treated him. In the absence of any medical evidence having regard to the nature of injuries that he has sustained and in view of the compensation that is now awarded under other heads, he is not entitled to any other compensation.
Thus, in all the Appellant/claimant is entitled to total compensation of Rs. 35,000/- with interest at 6% p.a.
from the date of the petition till realisation as against Rs. 20,000/- 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.
In the result for the foregoing reasons, 1 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. 35,000/-with interest at 6% per annum from the date of petition till realisation as against Rs. 20,000/-with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 15,000/- 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. 15,000/- 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 and award,
4) On deposit the enhanced compensation with interest, the same is ordered to be released in favour of the Appellant/claimant.
Office to draw the award accordingly.