SRI.VEERAYYA vs SAYYADMUBARAKALI & ANR

This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the Addl. Civil Judge (Sr.Dn.) and Addl. M.A.C.T., at Ranebennur(hereinafter referred to as ''The Tribunal'', for short), by its judgment and award dated 23.06.2009 passed in MVC No.104/2005.

In his memorandum of appeal, the appellant/claimant has taken a contention that the compensation awarded by the Tribunal below is totally disproportionate to the damage and injuries suffered by him in the accident. Thus, the compensation is required to be enhanced. He has further stated that the Tribunal below did not consider the disability certificate at Ex.P96 and also the evidence of PW2. The compensation awarded under different heads are meager. Further stating that the Tribunal below ignored the fact that the injured was admitted twice to the hospital and was following up physiotherapy, towards which no compensation has been awarded, the appellant has prayed for enhancement of compensation.

In response to the notice, respondent No.1 is being represented by his counsel. As could be seen in the order sheet, in spite giving sufficient opportunities, since the appellant fails to take appropriate steps, by virtue of order dated 29.01.2013, the appeal against respondent No.2 has stood dismissed.

Heard the arguments from both sides and perused the memorandum of appeal, impugned judgment and the entire materials placed before this Court.

The point that arises for my consideration is: "Whether the appellant/claimant has made out grounds for enhancement of compensation?

The summary of the case of the appellant as could be gathered from the materials placed before me is that, on 17.05.2004 at about 1.00 pm, he was travelling as a pillion rider on the motorcycle bearing registration No.KA27/H-1043. One Sri. Rudrappa Mudinaikar was riding the motorcycle. They were proceeding from Ranebennur towards Harogoppa village. At that time, a vehicle bearing registration No. KA-27/5689 being driven by its driver in a rash and negligent manner dashed to the motorcycle upon which he was travelling as a pillion rider. By the said accident, he fell down and sustained several injuries. He was shifted to Ranebennur Government Hospital and later to Bapuji Hospital at Davangere, where he was treated for the injuries suffered by him. It is his further case that he spent about Rs.20,000/- for treatment and even after medical treatment, he was suffering with some percentage of physical disability. He has stated that, at the time of accident, he was aged 35 years and earning Rs.5,000/- per month by working as Karnataka State Government Employee. Holding the owner and insurer of the alleged offending vehicle KA-27/5689 as liable to pay him the compensation, the appellant, as claimant in the Tribunal below, has claimed a total compensation of a sum of Rs.3,10,000/-. The Tribunal below, after recording the evidence led before it and perusing the materials placed before it and also after hearing the parties, by its judgment and award dated 23.06.2009 awarded a sum of Rs.52,000/- together with interest at the rate of 6% p.a. and held both the respondents before it as jointly and severally liable to pay the said compensation. It is the said judgment and award, the claimant has challenged in this appeal, seeking enhancement of compensation awarded.

For the sake of convenience, the parties would be referred to with the rankings they were holding in the Tribunal below.

The learned counsel for the appellant in his argument has vehemently submitted that the injured has sustained comminuted fracture to both the bones of his right leg and as such, the compensation awarded under the head pain and suffering is a meager amount. Giving similar reason even for the compensation awarded under the head of loss of amenities and attendant charges also, the learned counsel submitted that the appeal deserves to be allowed and compensation be granted as prayed for in the claim petition.

On the other hand, the learned counsel 1st respondent in his argument submitted that the compensation awarded by the Tribunal below is a reasonable and just compensation in the circumstances of the case and as such, does not warrant interference at the hands of this Court.

The present appeal being the claimant''s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place alleged by the claimant and also the alleged fault on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of the accident and the alleged liability of the respondents to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be reanalysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal below.

After analysing the evidence and the materials placed before it, the Tribunal below has awarded the compensation under the following heads with the sum shown against them:

Amount(Rs.)

Towards pain and suffering 30,000.00

Towards medical expenses 5,000.00

Towards diet, conveyance and attendant charges 5,000.00

Towards Loss of amenities in life 12,000.00

Total

52,000.00

The wound certificate at Ex.P24 shows that the claimant, in the accident, has suffered a comminuted fracture of mid 1/3rd of shaft of right tibia, fracture of 1/3rd of shaft of right fibula. In addition to this, the claimant has suffered abrasion of right leg and toe. Ex.P25 - discharge card shows that, initially on 18.05.2004, he was admitted to Bapuji Hospital, Davangere as inpatient and was treated for the injuries suffered by him in the accident. Ex.P28, which is one more discharge card from the same hospital, further shows that the injured was once again admitted as an inpatient in the same hospital for 3 more days from 11.10.2004 to 13.10.2004 and was treated by the hospital for the complaints he had at that time. This aspect go to show that the accident, which has resulted in injury to the complainant, did not end with an initial treatment given by the hospital on 18.05.2004, but made the injured to take one more round to the same hospital after few months with certain ailments and complaints still remaining. As such, it appears that, throughout the said period, the injured was continuously suffering with pain. As such, when the nature of injuries coupled with the patient''s visit to the hospital for repeated treatment when noticed, the compensation awarded by the Tribunal below towards pain and suffering appears to be less than what the reasonable amount is. Thus, the said quantum requires enhancement in it. Accordingly, I enhance the said quantum under the head of ''pain and suffering'' and fix it at Rs.45,000/-.

The Tribunal below has awarded a sum of Rs.5,000/- towards ''medical expenses''. The total of the sum of the medical bills produced by him though is lesser than the said amount awarded by the Tribunal below, I do not want to disturb the said quantum awarded by the Tribunal below.

Towards ''diet, conveyance and attendant charges'', the Tribunal below has awarded a sum of Rs.5,000/-. Considering the nature of injuries, which was fracture to both the bones of right leg, which obviously has made the injured immobile for a considerable period of time, during which period there ought to be some attendant to attend him, I am of the opinion that the compensation under the said head also deserves to be enhanced. Thus, I enhance it and fix it at Rs.8,000/-.

The learned counsel for the appellant in his argument submitted that the claimant is also entitled for a compensation under the head of future loss of income and that the doctor has assessed his disability at 55%. The Tribunal below has not accepted the said contention. No doubt PW2 has deposed to the effect that he has suffered certain percentage of disability. However, neither the evidence of PW2 nor the disability certificate at Ex.P96 are sufficient to arrive at a conclusion that the alleged disability has, in any manner, hindered or restricted the earnings of the injured. Undisputedly, the injured was a Government official who now claims to be a retired Deputy Tahasildar. He has not produced any documents or nowhere stated that, by virtue of disability either his rank was reduced or salary was reduced. It is not even his case that his pension quantum has been reduced. That being the case, in the absence of any proof to believe that there is any future loss of income, I am of the view that the Tribunal below has rightly not awarded any compensation under the said head.

However, the Tribunal below has awarded a compensation towards ''loss of amenities'' at Rs.12,000/-. Considering the nature of the injuries and the social status of the injured, I am of the view that the gravity of loss of amenities suffered by him would be of some considerable figure. As such, the quantum of compensation awarded under the head ''loss of amenities'' also deserves to be enhanced. Thus, I enhance the said compensation and fix it at Rs.22,000/-.

Barring the above, the appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads.

Accordingly, the claimant/appellant is entitled for compensation under the following heads with the sum shown against them:

Amount(Rs.)

Towards pain and suffering 45,000.00

Towards medical expenses 5,000.00

Towards diet, conveyance and attendant charges 8,000.00

Towards Loss of amenities in life 22,000.00

Total

80,000.00

Thus, the claimant is entitled for a total sum of Rs.80,000/- (Rupees Eighty Thousand Only) as compensation towards the injuries sustained by him in the alleged motor vehicle accident. Since the judgment and award passed by the Tribunal below is a lower amount than what the reasonable compensation is, appeal deserves to be partly allowed and the judgment and award under appeal requires to be modified.

Accordingly, I answer the above point partly in the affirmative and proceed to pass the following order: The appeal is allowed in part.

The judgment and award passed by the Addl. Civil Judge (Sr.Dn.) and Addl. M.A.C.T., at Ranebennur, in MVC No.104/2005 dated 23.06.2009 is modified to the extent that the compensation awarded at Rs.52,000/- is enhanced and fixed at Rs.80,000/- (Rupees Eighty Thousand Only).

The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded, shall remain unaltered.