Suresh vs Lokeshagouda and Others

Hari Nath Tilhari, J.—This appeal is filed by the injured from the judgment and award dated 1.4.1991 in M.V.C. No. 363 of 1987. The Tribunal has in total awarded a sum of Rs. 23,000 as compensation to the claimant-appellant, the details of which are as under:

(a) Rs. 20,000 towards pecuniary loss, pain and suffering and loss of amenities, enjoyment of life and temporary disability.

(b) Rs. 2,000 for medical and other expenses.

(c) Rs. 1,000 for engaging motor car to Puttur. Thus in total compensation of Rs. 23,000 has been awarded as mentioned above by the Tribunal.

The brief facts of the case are that the claimant on 12.5.1987 was going on cycle and he was on the left side of the road. According to the claimant''s case a tractor bearing No. MYH 7345 and trailer bearing No. 7346 being driven by its driver, i.e., respondent No. 1, was coming in a rash and negligent manner from cross road from the left side and dashed against the petitioner who was cycling on the left side of the road. The claimant in that accident sustained injuries including the fracture on leg and injuries on other parts of the body. According to the claimant''s case his bicycle was damaged and he was immediately taken to Mallegowda General Hospital, Chickmagalur. The claimant- appellant was treated as an in-patient for twenty days and thereafter was discharged with the advice to get the treatment from a bone specialist at Rajapalay, Andhra Pradesh The claimant''s case is that he has suffered permanent disability, loss of education for one year. He further alleged that he had incurred expenditure to the tune of Rs. 12,000 towards treatment and also claimed damages for the cycle. It was stated in the claim petition that respondent No. 1 was the driver of the tractor and trailer and respondent No. 2 was the owner of the tractor and trailer and respondent No. 3 was the insurance company with which the trailer and tractor both were insured. The claimant claimed the compensation to the tune of Rs. 1,50,000.

That on notice being issued to the owner and driver they absented themselves and the case proceeded against them ex parte. Insurance company contested the claim petition but it admitted that the tractor and trailer were insured with the respondent No. 3 and that liability was subject to the terms and conditions of the policy. The company did not admit that the claimant was injured in the accident and denied the expenses alleged to have been borne by the claimant. The company further alleged that compensation claimed is exorbitant. It has also stated that respondent No. 2 has not produced the driving licence for verification, also there is contravention of the terms and conditions of the policy, hence claim against insurance company is liable to be dismissed.

On the pleadings of the parties, the Tribunal framed the following issues:

(a) Does guardian of the petitioner prove that the petitioner Suresh sustained injuries in the motor accident that took place on 12.5.1987 at about 7 a.m. near Kudlur village, as a result of rash and negligent driving of a tractor No. MYH 7345 and trailer No. MYH 7346 by the respondent No. 1?

(b) Is the petitioner entitled for compensation, if so, to what amount and from whom?

(c) What order?

In order to prove his case the claimant examined himself as PW 1 and produced one D. Kiran Kalaiah, as PW 2 and filed about 59 documents. The respondents did not lead any evidence. On the basis of the material on record the Tribunal held that evidence and material on record clearly establish that the claimant was knocked down by the tractor in a rash and negligent manner of driving by respondent No. 1 and that claimant suffered the injuries and the record proves the negligence on the part of the respondent No. 1 in driving the tractor and trailer. The Tribunal further found that apart from abrasion and lacerated wounds, the claimant''s both the bones of the leg near ankle joint were fractured. There was fracture of lower and left ankle. The Tribunal awarded compensation of Rs. 23,000 to the claimant as mentioned in the earlier part of this judgment.

Having felt dissatisfied with the award of the Tribunal, the claimant has come up in appeal before this Court u/s 173 of the Motor Vehicles Act, 1988.

I have heard Mr. D.N. Katti, holding brief for Mr. Veeresh B. Patil, learned Counsel for the appellant as well as Mr. K.K. Vasant, counsel for respondent No. 2 and Mr. S.K.V. Chalapathy, counsel for respondent No. 3. It is brought to my notice that respondent No. 1, driver of the vehicle, has died and nobody has been brought on record in his place. It has been alleged by the learned Counsel for the respondents that appeal may be dismissed as having abated.

Learned counsel for the appellant replied and submitted that prima facie liability for payment is on the owner, as master is responsible for the act of the servant and of the insurance company and as such owner of vehicle, insurance company being on record, decree passed in appeal subsists and so entire appeal is not to abate. The insurance company has taken the liability to pay the amount decreed jointly and severally and therefore claim for enhancement can be considered with reference to the owner of the vehicle who is primarily liable to pay the amount. The insurance company is also there to reimburse the owner. The driver is an employee of respondent No. 2 and evidence is that there was rash and negligent driving by him. The insurance company being also liable to the extent the liabilities covered by the policy, in my opinion abatement of the appeal against the driver on account of his death will not affect the maintainability of appeal in view of the fact that substantive responsibility of payment of compensation awarded is of owner of vehicle and along with that it will be of insurance company. Even if the insured (owner) would have died, cause of action for claim or enhancement of claim against the estate of insured and against the insurance company would have survived u/s 155 of the Motor Vehicles Act, 1988. Section 155 of Act, 1988 reads as under:

Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given, rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.

Thus there is no force in this contention of objection of respondent. The contention of respondent is rejected. Thus the appeal survives for decision on merits.

The main contention of the learned Counsel for the appellant that compensation awarded is too low as well as insufficient and the amount has been fixed ignoring the material of evidence on record. Learned counsel for the appellant submitted that as regards the conveyance charges, Exh. P-5 has been provided which is for a sum of Rs. 2,000, the appellant has proved it. He submitted that Rs. 2,000 should be awarded for conveyance charges and not Rs. 1,000. Learned counsel further submitted that Exhs. 4 to 22 are the cash receipts filed by the appellant and the Tribunal concerned has committed mistake in not awarding the amount of compensation towards medical and other expenses as claimed. Learned counsel for the appellant further submitted that evidence of PW 2 also indicates that appellant has suffered fracture of two bones of the left leg. However, it is in the evidence of PW 1 that left leg is shortened by inch or so. So he is unable to run and he will suffer the disability for whole life apart from other injuries. A compensation of Rs. 75,000 at least should have been awarded for injuries, pain and suffering and loss of amenities, etc. These contentions of the learned Counsel for the appellant have broadly been contested. In my opinion, the compensation that has been awarded, no doubt, is insufficient and inadequate. In my opinion looking into the age of the boy who was aged 16 at the time of occurrence and another factor that he will have to bear the inability of defect of the leg for whole life. I think, proper compensation in this case due to pain and suffering, pecuniary loss and incapacity to run, etc., would be Rs. 35,000. As regards medical expenses, claimant has alleged that Rs. 15,000 has been spent. In claim petition, claim was made for Rs. 12,000 for medical and other expenses. I think the proper sum to be awarded towards medical expenses, would be Rs. 7,500 and towards nourishment and shelter, it would be proper to award a sum of Rs. 2,000. That Exh. P-45 produced by the appellant as mentioned in the judgment also indicates that Rs. 2,000 was spent towards hiring of the car. The Tribunal has said that Exh. P-45 has been examined and on that basis it is said that car has been engaged, so it awarded Rs. 1,000. I think it has taken too technical a view. Therefore, Rs. 2,000 is awarded towards expenditure of engaging the car to take the person to Puttur. Thus award is modified and appeal is allowed in part. The appellant-claimant to be entitled to get the compensation as under:

(a) For non-pecuniary loss, namely, pain and suffering, loss of future prospects, loss of amenities and enjoyment of life... Rs. 35,000

(b) For medical expenditure, attendant... Rs. 7,500

(c) For engaging car... Rs. 2,000

(d) For nourishment and accommodation, etc... Rs. 2,000

Thus a total sum of Rs. 46,500 is being allowed as compensation payable by the respondents jointly and severally. Thus the award given by the Tribunal is being modified as above. This enhanced amount will also carry an interest at the rate as awarded by the Tribunal. Thus the appeal is allowed in part.