Srinivas vs R. Babu and Others

B. Manohar, J.—Appellant is the claimant. Being not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru in MVC. No. 35/2008 dated 20.02.2010, he has filed this appeal seeking for enhancement of compensation.

The case of the claimant is that on 31.10.2007 at about 10:30 p.m., within the limits of Hosakote Police Station, while he was driving a tempo, a lorry bearing registration No. TN-04-Q-1958 driven by its driver in a rash and negligent manner with a high speed dashed against the said tempo. Due to the impact, the claimant has sustained multiple fracture and grievous injuries. He was shifted to the hospital wherein he had taken first aid treatment. Thereafter, he was shifted to R.L. Jalappa Hospital, Kolar, for further treatment. Prior to the accident, he was working as a driver and also doing milk vending business and earning more than Rs. 15,000/- per month. Due to the injuries sustained in the accident, he cannot work as a driver and milk vending business. Hence, he sought for compensation of Rs. 10,00,000/-.

On the basis of the pleadings of the parties, the tribunal has framed following issues:

"1. Whether the petitioner proves that he has sustained bodily injuries in the motor vehicle accident that occurred on 31.10.2007 at about 10:30 p.m., near Ajith Dhaba, Hosakote within the limits of Hosakote Police Station on account of rash & negligent driving of lorry bearing No. TN-04-Q-1958 by its driver as alleged in the petition?

Whether the petitioner is entitled for any compensation?, If so, what amount and from whom?

To what order or award?"

The claimant in order to prove his case examined himself as PW.1, the Doctor who has treated him was examined as PW.2 and got marked the documents as Exs.P1 to Ex. P17 on his behalf. None of the witnesses were examined on behalf of the respondents nor has any document been marked.

The tribunal after considering the oral and documentary let in by the parties and taking into consideration the spot mahazar and IMV report held that the accident had occurred due to the rash and negligent driving of the offending lorry and the claimant had sustained injuries. Hence, he is entitled for compensation. As per the wound certificate/Ex. P5, injury No. 4 is grievous in nature i.e., fracture of upper 1/3rd shaft of both bones of right leg. He has undergone surgery with open reduction and internal fixation with locking compression play and he was discharged from the hospital on 14.11.2007. The Doctor who treated the claimant has assessed the disability to an extent of 15% to the upper limb and he has assessed disability to the whole body as 8%. The claimant contends that he was earning a sum of Rs. 15,000/- per month. But to substantiate the said contention he has not produced any documents. In view of the same, the tribunal for the purpose of computation of loss of future earning has taken his income at Rs. 3,000/- per month, disability to an extent of 5%, since the age of the claimant as 20 years at the time of accident, applied the multiplier 18 and awarded a sum of Rs. 32,400/- towards loss of future income due to the disability; a sum of Rs. 5,000/- towards loss of earning during laid up period, Rs. 30,000/- towards pain and suffering. In all, the tribunal has awarded compensation of Rs. 1,44,400/- with interest at 8% per annum. Being not satisfied with the quantum of compensation, the claimant has preferred this appeal.

Heard Sri C.M. Venkata Reddy, learned counsel appearing for the appellant and Sri. M. Narayanappa, learned counsel appearing for respondent No. 2.

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

The record clearly discloses that the claimant has sustained injuries in a road traffic accident that occurred on 31.10.2007, due to the rash and negligent driving of offending lorry. The finding of the Tribunal regarding actionable negligence on the part of the driver of the offending lorry has become final. Respondent No. 2 -Insurance Company has not challenged the said finding. The dispute is only with regard to the quantum of compensation.

The appellant/claimant claims that he was earning a sum of Rs. 15,000/- per month by working as a driver and also doing milk vending business. The tribunal for the purpose of computation of loss of future earning has fixed his income at Rs. 3,000/- per month which is on the lower side. He further contends that in the road traffic accident he has sustained multiple fracture and the fracture of upper 1/3rd shaft of both bones of right leg is grievous in nature and he had taken treatment as inpatient for a period of 15 days and undergone surgery with open reduction and internal fixation with locking compression play. He has to undergone one more surgery for removal of implant and sought for enhancement of compensation under the head pain and suffering as against Rs. 30,000/- awarded by the tribunal.

On the other hand, Sri. M. Narayanappa, learned counsel appearing for respondent No. 2 argued in support of the judgment and award and contended that the tribunal has awarded just and reasonable compensation and there is no scope for enhancement. Hence, he sought for dismissal of the appeal.

The income of the claimant taken by the tribunal at Rs. 3,000/- p.m., is on the lower side. The accident occurred in the month of October 2007. He was working as a driver and doing milk vending business. Hence, the tribunal ought to have taken his income at Rs. 4,500/-. Further, the tribunal has taken the disability to an extent of 5% which is contrary to the evidence of the Doctor. The Doctor who treated the claimant has assessed the disability to an extent of 8% to the whole body, on the basis of the fracture i.e., fracture of upper 1/3rd shaft of both bones of right leg. Therefore, by taking the income of the claimant at Rs. 4,500/-, disability at 8% and by applying multiplier 18, the claimant is entitled for a sum of Rs. 77,760/- under the head loss of future earning'' as against Rs. 32,400/- awarded by the tribunal. Considering the pain and suffering the claimant has suffered due to the accident and that he was hospitalized for a period of 15 days and undergone surgery, another sum of Rs. 5,000/- is awarded towards pain and suffering. Hence, the claimant is entitled for enhanced compensation of Rs. 50,360/- which is rounded off to Rs. 50,000/- with interest at 6% per annum.

Accordingly, I pass the following:

The appeal is allowed in part. The judgment and award dated 20.02.2010 made in MVC No. 35/2008 by the MACT, Bengaluru is modified and the claimant is entitled for enhanced compensation of Rs. 50,000/- with interest 6%.