SRI.CHANDRAPPA vs N.E.MOHAN KUMAR & Anr

Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and award dated 31-12-2010 passed in MVC No.1623/2008 by the Motor Accident Claims Tribunal, Tumakuru (hereinafter referred to as "the Tribunal" for short) filed this appeal seeking enhancement of compensation.

The appellant filed a claim petition contending that on 07-09-2008 while he was proceeding as a pillion rider in a motorcycle bearing Registration No.KA-06/EA-4340 at about 12.00 noon, in front of Herur Grama Panchayathi, one Maruthi Omni car bearing Registration No.KA-06/5841 driven by its driver in a rash and negligent manner which was proceeding in front of the motorcycle suddenly took the car to the right side without putting on the indicators, which resulted in the accident. In view of that the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, he was shifted to Government Hospital at Gubbi and after the first aid, he took treatment at Aditya Orthopedic and Trauma Center at Tumakuru. In the accident, he had sustained fracture of left femur supra condylar and other injuries to the body. He had undergone surgery; internal fixation has been made and he has spent more than Rs.80,000/- towards medical expenditure. At the time of accident, he was aged about 50 years and doing coconut vending business and earning Rs.10,000/- p.m. In view of the injuries he had sustained in the accident, he cannot do the work as efficiently as he was doing prior to the accident. Hence sought for compensation of Rs.5,00,000/-.

The insurance company alone defended the case by filing the written statement.

After trial, the Tribunal held that due to the actionable negligence on the part of driver of the Omni Car, the accident occurred. The claimant who was proceeding in the motorcycle as a pillion rider sustained injuries and he is entitled for compensation. With regard to quantum of compensation is concerned, in the accident, he had sustained fracture of left femur supra condylar, he has undergone surgery, internal fixation has been made. The doctor who treated the claimant has assessed the disability to an extent of 30% to a particular limb and 10% to the whole body. The Tribunal taking into consideration the injuries sustained and suffering undergone by the claimant has awarded a sum of Rs.40,000/- under the head future unhappiness and a sum of Rs.30,000/- towards future medical expenditure i.e. for removal of implants; Rs.40,000/- towards pain and suffering; Rs.8,446/- toward medical expenditure, though the claimant had submitted the medical bills to the tune of Rs.29,956/-, further a sum of Rs.2,600/- towards attendant and nutrition charges. In all, the Tribunal has awarded compensation of Rs.1,21,066/- with interest at the rate of 6% p.a. The claimant, being not satisfied with the quantum of compensation awarded by the Tribunal has filed this appeal.

Sri.M.Nagaraj, learned counsel appearing for the appellant contended that the judgment and award passed by the Tribunal is contrary to law. Though the claimant had submitted a medical bill for a sum of Rs.22,485/- for having undergone operation for the fracture of left femur supra condylar, the Tribunal has not taken into consideration the same only on the ground that in the said bill, name of the hospital has not been mentioned. Though the doctor assessed the disability to an extent of 10% to the whole body, the Tribunal has not reckoned the monthly income to award compensation towards future loss of income. Further, the Tribunal has not awarded any compensation towards loss of income during the laid up period. Though the claimant has not produced any documents in proof of his income, the Tribunal ought to have reckoned the reasonable monthly income and awarded future loss of income. Hence, sought for enhancement of compensation.

On the other hand, Sri.Ashok N.Patil, learned counsel appearing for the insurance company argued in support of the judgment and award passed by the Tribunal and contended that the Tribunal has awarded a sum of Rs.8,466/- towards medical expenditure. Insofar as medical bill for a sum of Rs.22,485/- is concerned, the bill does not contain name of the hospital. Hence, the Tribunal has not taken into consideration the said bill and the compensation awarded towards future unhappiness and future medical expenditure and pain and suffering is higher side. Hence, sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.

The only dispute in this appeal is with regard to quantum of compensation is concerned.

In the road traffic accident occurred on 07-09-2008, due to the actionable negligence on the part of driver of the offending Maruthi Omni car, the accident occurred and the claimant sustained grievous injuries. Initially he took treatment at Government Hospital, Gubbi and thereafter he was shifted to Aditya Orthopedic and Trauma Center at Tumakuru. He had undergone surgery for the fracture of left femur supra condylar. The hospital records clearly disclose that he has undergone surgery on 07-09-2008 with DSS plates and screws. He was discharged from the hospital on 19-09-2008. The photographs produced by the appellant clearly disclose that the claimant has undergone surgery for the fracture of left femur supra condylar with DSS plates and screws. Though the doctor had assessed the disability to an extent of 30% to the particular limb, the Tribunal has not awarded any compensation towards future loss of income. The accident occurred in the year 2008, the Tribunal ought to have taken the income of the claimant as Rs.4,500/- p.m. Hence, reckoning the monthly income of the claimant as Rs.4,500/-, taking the disability to an extent of 10%, applying the multiplier 13 as he was aged about 50 years as on the date of accident, the claimant is entitled to compensation of Rs.70,200/- towards future loss of income against Rs.40,000/- awarded towards future unhappiness. The evidence on record clearly disclose that the claimant has undergone surgery for the fracture of left femur supra condylar by using DSS plates and screws. Though the hospital name is not depicted in the said bill, surgery undergone by the claimant cannot be disputed. It is clear from the disputed bill that the claimant has paid the doctor charges, nursing charges, operation charges conducted under anesthesia. There is some substance in the contention of the learned counsel for the appellant. Hence, the claimant is entitled to a sum of Rs.22,485/- towards operation charges. Further, no compensation has been awarded towards loss of income during the laid up period. Hence, a sum of Rs.10,000/- is awarded under the said head. In all, the claimant is entitled to enhanced compensation of Rs.62,685/- in addition to Rs.1,21,066/- awarded by the Tribunal with interest at the rate of 6% p.a. Accordingly, I pass the following: ORDER

The appeal is allowed in part. The judgment and award dated 31-12-2010 made in MVC No.1623/2008 passed by the Additional Senior Civil Judge and JMFC and Motor Accident Claims Tribunal, Tumkur is modified. The claimant is entitled to enhanced compensation of Rs.62,685/- with interest at the rate of 6% p.a., in addition to Rs.1,21,066/- awarded by the Tribunal.