T. Raju and Harinakshi @ Padma vs Kumara and National Insurance Co. Ltd.

B.S. Indrakala, J.—Though the matter is posted for Admission, with the consent of the learned Counsel for both parties, the same is taken up for final disposal. The above appeal is preferred against the judgment and award dated: 15.01.2010 passed in MVC No. 551/2009 on the file of the Principal Civil Judge (Sr.Dn.) and Additional MACT, Hassan,

It is the case of the claimant/appellant that on 3.12.2008 about 3.00 p.m. while he was riding the motor cycle bearing registration No. KA 13 S 9334 along with a pillion rider on Hassan-Arkalgud road near Indrapura, the rider of another motor cycle bearing registration No. KA 13 R 7508 drove the same in rash manner and dashed against the motor cycle of which the claimant was the rider and caused the accident, on account of which, both the claimant as well as the pillion rider fell and sustained grievous injuries. It is further contended that prior to the accident, the claimant was hale and healthy and due to the injuries sustained by him, he suffered loss of income, pain and agony, permanent disability, he was in-patient at Mangala Nursing Home, Hassan for about 20 days and spent an amount of Rs. 50,000/- towards treatment etc. and sought awarding of compensation.

In the statement of objections filed by respondent No. 2/insurer while denying the cause of accident, nature of injuries sustained by the claimant and the amount of expenditure incurred, disability to which the claimant is alleged to have been exposed, it is specifically pleaded that its liability, if any, the same is subject to the terms and conditions of the policy.

The claimant to prove his case along with the claimant in another connected case filed by the pillion rider got examined 4 witnesses and got marked Exs. P.1 to 18. On behalf of the respondents, though no oral evidence is adduced, a copy of the policy of the insurance is got marked as Ex. R. 1.

The Tribunal on appreciating the evidence so lead in, deemed it fit to award a sum of Rs. 1,43,469/- with interest at the rate of 6% p.a. from the date of petition till realisation.

Aggrieved by the said judgment and award, the claimant is in appeal inter-alia contending amongst other grounds that the amount of compensation so awarded is too inadequate and seeks enhancement of the same.

Learned Counsel for the appellant submitted that the Tribunal erred in not taking into consideration the entire gross salary as evidenced in Ex. P. 5 as the income of the injured and it erred in considering the net income as the income of the injured claimant. Further he also contended that the amount awarded under different heads like pain and suffering, loss. of amenities, incidental expenses, etc., are of too low and the seeks enhancement of the same.

Per contra, learned Counsel for the respondent/insurer submitted that on the facts and circumstances available on record, amount of compensation awarded by the Tribunal is just and proper and the same does not call for any enhancement.

Thus the cause of accident as well as the appellant sustaining certain injuries in the said accident are not in dispute.

Admittedly the appellant sustained the following injuries as per Ex. P.6:

1) Laceration lip, loss of upper and lower incisor;

2) Deep laceration nose exposing the nasal bone;

3) Tenderness left shoulder (X-ray shows fracture scapula);

4) Tenderness chest with difficulty in breathing (X-ray shows fracture 4, 5, 6, 7 rib left side with hemothorax);

5) Tenderness thoracolumbar spine;

6) Abrasion right knee;

7) Laceration left knee;

8) Laceration chest;

9) Abrasion foot;

10) Laceration chin;

11) Laceration face.

Further it is the case of the claimant that he was an inpatient at Mangala Nursing Home, Hassan for 20 days; he was treated conservatively and he lost his two incisors, etc. Thus considering the nature of injuries i.e., fracture of 4, 5, 6 and 7 rib on the left side, fracture of scapula and other injuries, it is reasonable to award a sum of Rs. 50,000/- towards pain and suffering.

Further it is seen that the claimant filed the medical bills amounting to Rs. 83,500/- and the Tribunal taking into consideration the said documents, awarded the said amount towards the medical expenses, which is proper and the same does not call for interference.

Though the claimant was hospitalized only for 20 days, he applied leave for 88 days and in the circumstances, the Tribunal has considered the laid up period as 3 months. However, while calculating the loss of income for the period of 3 months, the Tribunal erred in taking into consideration the net salary of the claimant. On the other hand as per Ex. P.8, the claimant got Rs. 8,827/- as gross salary out of which he has paid Rs. 100/- towards professional tax. In the circumstances, while calculating the income of the injured, it is proper to calculate the same as gross salary - professional tax = Rs. 8,827/- - Rs. 100/- = Rs. 8,727/-. In the circumstances, for the laid up period of 3 months, the claimant is entitled to be compensated at Rs. 26,181/-.

In view of the observation of the Tribunal that the claimant did not suffer any loss of income as he continued to carry out the same work, which he was doing prior to the accident and even after accident, though he is not entitled to be compensated under the heading loss of future income, an account of disability he is in fact entitled to be compensated under the heading loss of amenities and disability and considering the nature of injuries sustained it is reasonable to award a sum of Rs. 30,000/- towards the same.

Considering the nature of injuries, number of days of hospitalization and the laid up period, it is reasonable to award a sum of Rs. 10,000/- towards incidental expenses like attendant charges, conveyance, nourishing food, etc. Thus in all the claimant is entitled to be compensated at Rs. 1,99,681/-. Accordingly, the impugned judgment and award passed by the Tribunal is liable to be modified. Hence, the following:

ORDER

The above appeal is allowed in part by modifying the judgment and award dated: 15.01.2010 passed in MVC No. 551/2009 on the file of the Principal Civil Judge (Sr.Dn.) and Additional MACT, Hassan, by awarding a sum of Rs. 1,99,681/- with interest at the rate of 6% per annum from the date of petition till realisation as against a sum of Rs. 1,43,469/- awarded by the Tribunal.

The respondent/insurance company shall deposit the enhanced amount so awarded within 4 weeks from the date of receipt of a copy of this judgment and on such deposit, a sum of Rs. 25,000/- shall be invested in fixed deposit in the name of the claimant in any of the Nationalised Bank of his choice for a period of 5 years with liberty to him to withdraw the interest as and when it accrues on the same. The balance amount of Rs. 31,212/- along with entire interest accrued till date shall be released in favour of claimant for his immediate necessity.

Office to draw the award accordingly.