Tippanna vs Rudrappa

B. Manohar, J.—Appellant is the claimant. Being dissatisfied with the compensation awarded in judgment and award dated 22.10.2008 made in M.V.C. No. 1843/2006 passed by the Additional Motor Accident Claims Tribunal, Gokak, (for short the ''MACT''), he has filed this appeal seeking enhancement of compensation.

For the sake of convenience, parties are referred to as per their rank in the claim petition.

The claimant filed the claim petition contending that on 28.10.2006, while he was returning to Mudalagi from Gokak on a motor cycle bearing registration No. KA-23/R-598, as a pillion rider, the rider of the motor cycle in a rash and negligent manner without noticing the road hump drove the motor cycle over the same. Due to the said impact, he fell down and sustained grievous injuries. He was shifted to a private hospital in Gokak and took treatment therein for a period of one week and follow-up treatment for a period of three month. He spent Rs. 30,000/- towards medical expenses. He was aged 52 years at the time of the accident, doing agricultural work and cattle business earning Rs. 6,000/- per month and maintaining his family. Due to the accident, he suffered permanent disability and cannot do the work of an agriculturist as well as carry on the cattle business and hence sought for compensation.

Respondents No. 1 and 2 filed written statement denying the averments made in the claim petition and also denying rash and negligent riding of the motor cycle. They also contended that the compensation claimed was exorbitant. Since the motor cycle was covered by insurance policy issued by the 3rd respondent, the 3rd respondent-insurer has to pay compensation arid as such, sought for dismissal of the claim petition as against them.

Respondent No. 3 filed written statement denying the entire averments made in the petition. It contended that the rider of the motor bike was not having a valid and effective driving licence as on the date of the accident. The owner of the vehicle had not paid the additional premium to cover the risk of the pillion rider. Therefore, the 3rd respondent is not liable to satisfy the award and sought for dismissal of the claim petition as against it.

On the basis of the pleadings of parties, the Tribunal framed necessary issues. Claimant, in order to prove his case, got himself examined as P.W. 1 and examined the doctor, who treated him, as P.W. 2 and got marked the documents as Exs. P.1 to P.27. Respondents did not lead any oral evidence. However, with the consent of the parties, the insurance policy was marked as Ex. R.1.

The MACT on the basis of the oral and documentary evidence let in by the parties and taking into consideration the FIR, spot panchanama and M.V.I. Report and further taking note that a criminal case in Crime No. 76/2006 was registered against the 1st respondent, held that due to rash and negligent riding of the motor cycle, the accident had occurred and hence, the claimant was entitled for compensation. With regard to quantum of compensation is concerned, taking into consideration the wound certificate-Ex. P.5 which disclosed that the claimant sustained comminuted fracture of lower end of right tibia and fibula and other injuries to body; that he was inpatient for a period of 10 days and underwent operation; taking the whole body disability to an extent of 10% as against the permanent disability assessed by the doctor to an extent of 40% to the particular limb, awarded in all a sum of Rs. 99,300/- with interest at 6% per annum and directed the 3rd respondent-insurer to compensate the claimant.

Claimant not being satisfied with the quantum of compensation has filed this appeal seeking enhancement.

I have carefully considered the arguments addressed by the parties, perused the judgment and award and oral and documentary evidence adduced by the parties.

The record clearly discloses that due to rash and negligent riding of the motor cycle by its rider, the claimant, who was a pillion rider, sustained grievous injuries in the road traffic accident that occurred on 28.10.2006. He sustained comminuted fracture of lower end of right tibia and fibula and other injuries He underwent operation. He was inpatient for a period of 10 days. Thereafter, he has taken follow-up treatment for a period of three months and thereby he was out of employment for the said period. At the time of the accident, the claimant was aged about 53 years doing the agricultural work and business of selling and buying cattles. Though he claimed that he earned a sum of Rs. 6,000/- per month, in the absence of any document to prove the same, the Tribunal took the income of the claimant as Rs. 2,500/- which is on lower side. Taking into consideration that the accident occurred in the year 2006 and that an agricultural labourer earned a sum of Rs. 3,750/- per month, the income of the claimant in the instant case is also taken at Rs. 3,750/- per month. Though the doctor has assessed the disability to an extent of 40% to the particular limb, the Tribunal has taken the disability to the whole body 10%, which is on lower side. The Tribunal ought to have taken 1/3rd of the permanent disability assessed by the doctor.

Taking into consideration the income of the claimant as Rs. 3,750/- per month, the whole body disability as 13% and applying the multiplier ''11'', the claimant is entitled to a sum of Rs. 64,350/- towards ''loss of future income'' as against Rs. 33,000/- awarded by the Tribunal.

The sum of Rs. 20,000/- awarded towards pain and suffering is on the lower side. In the accident, the claimant has sustained comminuted fracture of lower end of right tibia and fibula and underwent operation and thereafter he has taken follow-up treatment for a period of three months. Hence, he is entitled for another sum of Rs. 10,000/- towards pain and suffering.

Though the claimant had submitted the medical bills for Rs. 26,230/-, the Tribunal without assigning any reason awarded a sum of Rs. 20,000/-. The medical expenses claimed by the claimant is supported by medical bills. Hence, the claimant is entitled to another sum of Rs. 6,000/ towards medical expenses.

Further, the attendant charges of Rs. 800/-awarded by the Tribunal is on the lower side. The claimant is a resident of Mudalagi village of Gokak District. Every time he was required to go to Gokak for the follow-up treatment. Hence, he is entitled for another sum of Rs. 6,000/- towards attendant charges.

The MACT has awarded a sum of Rs. 7,500/-towards loss of earnings during laid up period'' at the rate of Rs. 2,500/- per month. Since, the income of the claimant is taken as Rs. 3,750/-, another sum of Rs. 3,750/-is awarded under the head loss of earnings during laid up period''.

Further, a sum of Rs. 20,000/- awarded towards loss of amenities and happiness is also on the lower side. The claimant has to survive through out his life with the disability suffered by him. Hence, he is entitled to another sum of Rs. 10,000/- towards loss of amenities and happiness

In all, the claimant is entitled for enhanced compensation of Rs. 67,100/-, rounded off to Rs. 67,000/-, with interest at 6% per annum from the date of claim petition till realisation. Accordingly, I pass the following:

ORDER

Appeal is partly allowed. The judgment and award dated 22.10.2008 passed in M.V.C. No. 1843/2006 by the MACT, is hereby modified. The claimant is entitled to an enhanced compensation of Rs. 67,000/- with interest at 6% from the date of claim petition till realisation.