Srinivasa and Others vs Dayachand Gupta and Others

N.K. Patil, J.—These appeals by the claimant and by the Insurer are directed against the same impugned judgment and award dated 25/01/2012, passed in MVC No. 5865/2010, by the XXI ACMM and XXIII Additional Small Cause Judge, Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru, (for short Tribunal'').

The Tribunal, by its judgment and award, has awarded a sum of Rs. 3,90,000/-, with interest at 6% p.a. (excluding interest on the amount awarded towards future medical expenses) from the date of petition till its actual deposit, fastening the liability on the Insurer, on account of the injuries sustained by the claimant in the road traffic accident.

In brief, the facts of the case are:

"That on 6.3.2010 at about 12.30 p.m. the claimant was driving the Indica Car bearing Reg. No. KA. 01.MA.320 on the extreme side of Bangalore -Mysore road and when he was proceeding near Vaddarahalli, the driver of the Tata 407 goods vehicle bearing Reg. No. AK.05.AB.6805 came from opposite side in a rash and negligent manner without observing the traffic rules on the wrong side and dashed against the car. Due to which, claimant sustained grievous injuries and fell unconscious. The publics have shifted the claimant to Government Hospital at Ramanagaram, where he took first aid and then he was referred to Hosmat Hospital, Bangalore, for higher treatment, where, he took treatment as an inpatient from 6.3.2010 to 12.3.2010, underwent surgery on the spinal cord and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment." 4. It is the further case of the claimant that, he spent considerable amount towards medical and other incidental expenses. On account of the injuries sustained by claimant, he suffered permanent disability and Doctor has assessed the disability at 20% to the limb. Therefore, claimant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the owner and Insurer of the offending vehicle. The said claim petition had come up for consideration before the Tribunal. The Tribunal, in turn, after appreciating the oral and documentary evidence and other material available on file, taking into consideration the nature of injuries sustained, the nature and duration of the treatment taken by the injured, has allowed the said claim petition in part, awarding a sum of Rs. 3,90,000/- with interest at 6% p.a., (excluding the amount awarded towards future medical expenses) from the date of petition till its actual deposit.

Being aggrieved by the said judgment and award, the claimant has filed an appeal for enhancement of compensation and the Insurer has filed an appeal for reduction of compensation, on the ground that the Tribunal ought to have fixed some negligence on the part of the claimant.

I have heard learned counsel for claimant and learned counsel for Insurer and perused the impugned judgment and award passed by the Tribunal.

The submission of the learned counsel Sri. P.S. Divakara, appearing for the claimant is that, the Tribunal has erred in not assessing the income of the claimant reasonably and what is assessed is on the lower side and is liable to be reassessed, on the ground that, he is aged about 48 years, driver by profession and the accident is of the year 2010. He further submits that, claimant has sustained permanent disability at 20% to the whole body as he has sustained injuries on his spinal chord, but the Tribunal has failed to consider this aspect. He further submits that, on account of the injuries, claimant has taken treatment as inpatient for 7 days, underwent surgery, on the advise of the Doctor he has taken bed rest and follow up treatment for more than three months and the Doctor has deposed in his evidence that, he has to undergo one more surgery and for that, he may require Rs. 1,50,000/-, as he has no control over urine. But this aspect of the matter has not been considered or appreciated or awarded reasonable compensation by the Tribunal. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified.

Learned counsel appearing for the claimant further submits regarding the specific ground taken by the Insurer that there is negligence on the part of the claimant also that, the said submission cannot be sustained on the ground that, the Tribunal, after due consideration of the oral and documentary evidence available on file and after assigning valid reasons has held that inspite of granting sufficient opportunity to the insurer, he has failed to enter the witness box nor examined the driver of the vehicle involved in the accident and fixed the entire negligence on the part of the driver of the offending vehicle and therefore, interference by this Court is not called for.

Per contra, learned counsel appearing for the Insurer, submitted that, the contents of the spot mahazar and the sketch establish that there is some negligence on the part of the claimant also and non examination of the driver and not entering the witness box by the Authorized Officer of the Insurer does not take away their case that there is negligence on the part of the claimant, the driver of the Tata Indica car. But this aspect of the matter has not been looked into or considered or appreciated by the Tribunal while fixing negligence. He further submits that the compensation awarded by the Tribunal under different heads is on the higher side and disproportionate to the injuries sustained by the claimant and it is liable to be reduced substantially. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by fixing reasonable negligence on the part of the claimant and reducing the compensation.

After hearing the learned counsel for both the parties and after careful perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the point that arises for my consideration is:

"(i) Whether the Tribunal is justified in fixing the entire negligence on the part of the driver of the offending goods vehicle?

(ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

Re. Point No. 1:

The occurrence of the accident and the resultant injuries sustained by the claimant are not in dispute. It is also not in dispute that two vehicles are involved in the accident, viz., Tata Indica Car bearing Reg. No. KA.01.MA.320 and Tata 407 Goods vehicle bearing Reg. No. KA.05.AB.6805. The Tribunal, after considering the oral evidence of PW1 and Ex.P6 has held that the accident is a head on collusion. Further, the Tribunal has observed that, Insurer has not examined the driver of the offending goods vehicle, but on going through the sketch, Ex.P6, it is clear that there is negligence on the part of the claimant also. The copies of the FIR and list of witnesses in the charge sheet marked as Ex.P1 and P3 respectively disclose that crime has been registered against the driver of 407 goods vehicle and Ex.P2-copy of the complaint shows that it has been lodged by PW1 after three days of the accident and as per Ex.P4-copy of the order sheet in the criminal case, accused therein has pleaded guilty and paid the sentenced fine amount and on going through the order sheet it is not clear against whom crime has been registered because the accused name is not forthcoming, but only the name of owner is shown with regard to releasing of the vehicle Tata 407 goods vehicle. The Tribunal, has further held that, as per Ex.P7, copy of the Motor Vehicle accident report of the offending vehicle, no fresh damages noticed at the time of inspection and the Inspector has opined that the accident is not due to any mechanical defect since the accident is on 6.3.2010 and vehicle was inspected on 7.4.2010 and therefore, one cannot expect the damages on the vehicle one month after the accident and PW1 has not produced the Motor Vehicles Accident Report of his vehicle even though he has stated that his vehicle is badly damaged. However, the Tribunal has observed that the accident is not in dispute, but the manner in which the accident occurred is in dispute and held that since the Insurer has failed to substantiate his defence, it can be said that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle and accordingly, answered issue No. 1 in the affirmative and fixed the entire liability on the Insurer of the offending goods vehicle. The said finding recorded by the Tribunal is just and proper and interference by this court is not called for, nor I find any good ground as such made out by the Insurer to interfere with the same.

Re. Point No. 2:

It is not in dispute that claimant is aged about 48 years, driver by profession and accident has occurred on 6.2.2010. It is the case of the claimant that he was earning Rs. 8,000/- per month. The Tribunal has assessed the income of the claimant at Rs. 3,500/- per month which is on the lower side. Having regard to the age, occupation of the claimant and the year of accident, I re-assess his income at Rs. 5,500/- per month. Further, it is significant to note that, on account of the injuries sustained by the claimant in the accident as per Ex.P8-wound certificate, he has taken treatment as inpatient for 7 days, underwent surgery. He examined the Doctor, who after clinical examination has opined that there is 20% disability and 1/3rd of which i.e. 6.67% would be the whole body disability and I rounded off it to 7%. During the period of treatment, he might have incurred reasonable amount towards medical expenses, conveyance, nourishing food and attendant charges. I presume that, on the advise of the Doctor, claimant might have taken bed rest and follow up treatment atleast for three months, during the said period, he might have incurred financial loss as he could not have attended his work regularly. Discomfort and unhappiness persists through out his life on account of the permanent disability suffered by him. As per the evidence of the Doctor, claimant has to undergo one more major surgery and the tentative costs of the same wound be Rs. 1,50,000/-, the same may be an exaggeration and therefore, some reasonable amount has to be awarded towards the same.

Taking all these factors into consideration, we award a sum of Rs. 10,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 3,000/-, Rs. 16,500/- towards loss of income during the treatment period for three months at the rate of Rs. 5,500/- per month instead of Rs. 7,000/-, Rs. 50,000/- towards loss of amenities instead of Rs. 40,000/- and Rs. 75,000/- towards future medical expenses instead of Rs. 30,000/-.

However, the Tribunal has justified in awarding a sum of Rs. 80,000/- towards injury, pain and sufferings, Rs. 1,50,000/- towards medical expenses as per the medical bills produced and Rs. 80,000/- towards disability and therefore, interference by this Court is not called for.

In all, the claimant is entitled to the total compensation of Rs. 4,61,500/- instead of Rs. 3,90,000/- and the break- up is as follows:

For the foregoing reasons, the appeal filed by the claimant is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merits.

The impugned judgment and award dated 25/01/2012, passed in MVC No. 5865/2010, by the XXI ACMM and XXIII Additional Small Cause Judge, Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru, is hereby modified, awarding the compensation of Rs. 71,500/- with interest at 8% p.a., (excluding interest for delayed period of 225 days in filing the appeal) from the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

The Insurer is directed to deposit the enhanced compensation of Rs. 71,500/- with interest at 8% p.a., from the date of the petition till its realization (excluding interest for delayed period of 225 days in filing the appeal), within three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the Insurer, the entire enhanced compensation with interest shall be released in favour of the claimant.

The amount deposited by the Insurer shall be transmitted to the jurisdictional claims Tribunal immediately.

Draw the award, accordingly.