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Judgment
H.S. Kempanna, J.—This appeal by the claimant is directed against the impugned judgment and award dated 6.1.2009 passed in MVC. No. 8777/2007 by the XVIII Addl. Judge, Court of Small Causes, Member, MACT-4, Metropolitan Area, 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 a sum of Rs. . 10,00,000/- against the Respondents on account of the bodily injuries which he sustained in a motor accident that took place on 16.11.2007 at about 2.45 p.m. in front of Karvi Consultancy situated in Basavangudi, Bangalore, involving the Tata Sumo bearing Regn. No. KA-04-N/5797 driven by the first Respondent owned by the second Respondent and insured with the third Respondent at the relevant point of time. In the impugned accident he sustained severe injuries for which he took treatment in the hospital and underwent one surgery. He spent huge money for the treatment. Despite the same, he is unable to carry on his hotel business effectively which has resulted in loss of income. Hence, he prayed for grant of compensation.
After institution of the petition, the petition as against Respondent No. 1-driver came to be dismissed as deleted. Respondents 2 and 3-owner and insurer appeared and contested the claim made by the Petitioner. The Respondents contended that the accident in question has not taken place due to the fault of the driver of the offending car, on the other hand, it took place on account of the fault, of the rider of the motor cycle in which the claimant was proceeding as a pillion rider. They further denied the age, occupation, income, injuries sustained, treatment taken and the amount spent for the same. Accordingly, sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal in all framed three issues.
The claimant in support of his case got himself examined as PW1 and examined three more witnesses as PWs 2 to 4, among whom PW4 is the medical officer who treated him. He produced 25 documents.
On behalf of the Respondents they did not choose to lead any oral evidence nor produced any documents.
The tribunal considering the oral and documentary evidence on record held that the accident has taken place solely on account of the fault of the driver of the offending car and as such the claimant has established actionable negligence. Further, the tribunal looking to the evidence of the claimant and his two workers PWs 2 and 3 and the medical officer- PW4 coupled with the medical documents Ex.P6-wound certificate Ex.P8 discharge summary, awarded a total compensation of Rs. . 1,13,000/- with interest at 6% p.a. from the date of the petition till realisation under various heads. It further saddled the payment of compensation on the second Respondent-insurer.
The Appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.
Learned Counsel appearing for the Appellant-claimant submitted that the Tribunal has erred in not awarding suitable compensation to the Appellant/claimant under various heads and further it has erred in not awarding any compensation towards conveyance, nourishing food and attendant charges and towards future loss of income despite the evidence of PW4-medical officer who has stated that he has permanent disability to the extent of 10% to the whole body on account of the injuries sustained in the accident. 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 severe injury to his right leg for which he took treatment in the hospital for five days, underwent one surgery and also spent huge money. His testimony is further fortified from the evidence of PW-4 the medical officer and the wound certificate Ex.P6 placed on record. The Petitioner has sustained comminuted fracture of right tibia and fibula. Taking all these aspects into consideration, the tribunal has awarded a sum of Rs. . 30,000/- towards injury, pain and suffering. In my view since he has sustained comminuted fracture of both bones of right leg as indicated above, he should be awarded a further sum of Rs. . 5,000/- in addition to Rs. . 30,000/- awarded by the Tribunal. Therefore, the claimant is awarded a total sum of ?35,000/- towards injury, pain and suffering.
Further, the Tribunal has awarded Rs. . 40,000/-towards medical expenses. The claimant claims that he has spent an amount of Rs. . 45,495/- for which he has produced bills and prescriptions which are at exhibits P12 and P13. Further, the Tribunal on going through Ex.P12-bills came to the conclusion that there is duplicacy in respect of the advance payment and accordingly disallowed the claim of the claimant to an extent of Rs. . 5495/-. The learned Counsel for the Appellant submits that this finding of the Tribunal cannot be justified because the claimant has produced the genuine bills which clearly indicate that he has spent amount of Rs. . 45,495/-. The advance amount that has been mentioned as duplicate is Rs. . 2,000/- which has not been claimed by the Appellant. Therefore, accepting the submission of the learned Counsel for the Appellant/claimant, the claimant is awarded a further sum of Rs. . 5,495/- towards medical expenses in addition to Rs. . 40,000/- awarded by the Tribunal.
As already pointed out the'' claimant after the accident has taken treatment in the hospital for five days. He has undergone one surgery. He has sustained comminuted fracture of right tibia and fibula. That follows he must have taken follow-up treatment after discharge from the hospital for which he must have spent considerable amount towards conveyance, nourishing food and attendant charges. The Tribunal has not considered the case of the claimant under this head. The accident has taken place on 16.11.2007. He is a businessman running a hotel, aged about 43 years. Taking these aspects into consideration a sum of Rs. . 10,000/- is awarded towards conveyance, nourishing food and attendant charges.
Apart from this the Tribunal has awarded a sum of Rs. . 15,000/- towards loss of amenities. As already pointed out the claimant has sustained comminuted fracture of his right lower limb, the medical officer PW4 who has examined him has stated that he has disability to an extent of 30% to the right lower limb and 10% to the whole body. Taking these aspects into consideration, I am of the view that the claimant should be awarded a further sum of Rs. . 10,000/- in addition to Rs. . 15.000/- awarded by the Tribunal under the head loss of amenities as he has to put up with discomfort and unhappiness in future on account of the injuries sustained.
The next aspect that dwells upon for consideration is the income of the claimant and the loss of income during laid-up period. The claimant claims that he is carrying on business in hotel. He has filed his IT returns for the years 2006-07. That discloses that his annual income is Rs. . 1,12,630/-. It further discloses that the tax that has been determined p.m. is Rs. . 1,230/-
However, the claimant has not produced his returns for the previous two years. In the absence of the same, the Tribunal has taken his income at Rs. . 8,000/- p.m. In my view, since the claimant has not produced his IT returns for the previous two years, the income of Rs. . 8,000/-which has been taken by the Tribunal appears to be just and proper. Normally, in such cases the average of three years income declared is taken as the -income of an individual Therefore, in the facts and circumstances, the income of Rs. . 8,000/- is just and proper and does not call for any interference. The Tribunal has awarded only a sum of Rs. . 16,000/ towards loss of income during laid-up period i.e. for only two months. As already pointed out the claimant has sustained comminuted fracture of right tibia and fibula. Therefore, in the circumstance, he could not have attended to his normal work effectively for a period of four months. Therefore, the claimant, should be awarded compensation towards loss of income during laid-up period for a further period of two months. Thus, the claimant in all is entitled to Rs. . 32,000/- ( Rs. . 8,000 x 4) as against Rs. . 16,000/- awarded by the Tribunal towards loss of income during laid-up period.
Apart from this, the Tribunal has awarded a sum of Rs. . 5,000/- towards future medical expenses relying upon the testimony of PW4-medical officer. The learned Counsel for the claimant submits that PW4 has stated that he requires a further sum of Rs. . 20.000/- for future medical expenses. The Tribunal has awarded Rs. . 5,000/-The material on record reveals that he requires future medical expenses for removal of implants that are in situ. The accident is of the year 2007. Hence, in my view the claimant should be awarded a further sum of Rs. . 5.000/- in addition to Rs. . 5,000/- awarded by the Tribunal towards future medical expenses accordingly it is awarded.
The Tribunal further has awarded Rs. . 25,000/-towards permanent disability. I fail to understand under what head this amount has been awarded. However, in the facts and circumstances, since the contesting insurer has not challenged either by way of filing of appeal or cross objection to this appeal I do not prefer to interfere with the same.
The last aspect that dwells upon for consideration is loss of future income. As already stated, the claimant claims that he is running hotel business, He has filed the returns as indicated earlier for the year 2006-07 which is at Ex.P10 under which the income has been declared by him as Rs. . 1,12,630/-. If according to the claimant he has sustained loss in his business, he should place the material before the Court by producing subsequent returns to show that he has sustained loss in his business. Unfortunately, in this case, the claimant himself has produced the IT returns for the year 2007-08 which is at Ex.P14. That reveals that he has filed his returns for the said year disclosing his income as Rs. . 1,69,287/-. That indicates that he has not sustained loss in his business, on the other hand, he has made profit in the business. That would go to show that he has not sustained any loss in the business which he is carrying on. In that view of the matter as he has already been awarded Rs. . 25,000/- towards permanent disability, which I have adverted to above, in the facts and circumstances, the claimant is not entitled to any compensation towards loss of future income.
Thus, in all the Appellant/claimant is entitled to total compensation of Rs. . 1,82,495/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. . 1,31,000/- with interest at 8% p.a. from the date of the petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of compensation is as follows:
Towards pain and sufferings
Rs. . 35,000/-
Towards Medical expenses
Rs. . 45,495/-
Towards conveyance, nourishing food and attendant charges
Rs. . 10,000/-
Towards loss of income during laid up period
Rs. . 32,000/-
Towards loss of amenities
Rs. . 25,000/-
Towards future medical expenses
Rs. . 10,000/-
Towards Permanent disability
Rs. . 25,000/-
Total
Rs. . 1,82,495/-
In the result, for the foregoing reasons, I proceed to pass the following:
ORDER
Appeal is allowed in part.
The impugned judgment and award of the Tribunal is modified and the Appellant is awarded a total compensation of Rs. . 1,82,495/-with interest at 6% per annum from the date of petition till realisation as against Rs. . 1,31,000/-with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. . 51,495/- with interest at 6% per annum from the date of petition till realisation.
The second Respondent herein-Insurer shall deposit the entire enhanced compensation of Rs. . 51.495/- 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.
On deposit the enhanced compensation with interest, 50% with proportionate interest is ordered to be deposited in the name of the Appellant/claimant in any nationalised/scheduled bank for a period of three years renewable for a further period of three years. The balance 50% with proportionate interest is ordered to be released in favour of the Appellant/claimant.
Office to draw the award accordingly.