Venkatesh vs Lakshminarayana & Anr

The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by the Civil Judge (Sr. Dn.) and Addl. MACT, Gubbi (hereinafter referred to as ''the Tribunal'' for short) by order dated 07.08.2009 in MVC No.529/2008.

The brief facts of the case are that on 12.12.2007 the claimant-appellant and his cousin Narayanaswamy had been to Chelur for their personal work and after finishing the same they had been to their relative''s house at Hesarahalli and further, at about 1.00 p.m. they reached Hesarahalli Bus stop and were waiting for the bus on the extreme left side of the road to go to Gubbi. At that time, the rider of Hero Honda Motor Bike bearing registration No.KA-06-Q-4794 came from Chelur side with great speed in a rash and negligent manner without following the traffic rules and dashed against the claimant. Due to the said accident the claimant fell down and sustained the following injuries: 1. Lacerated injury over the left side of scalp,

Lacerated injury over the lower 1/3rd right leg,

Swelling over both the legs,

Abrasion over both the legs and arms,

Fracture of open of shaft and Tibia and Fibula.

Immediately after the accident, the claimant was shifted to P.H.C., Chelur. After first aid he was shifted to Adichunchanagiri Hospital and Research Center and there he was admitted as an inpatient and he took treatment from 12.12.2007 to 18.02.2008. When he was undergoing said treatment, orthopedic operation to his fracture has been done and injuries to his tibia and fibula and a rod has been inserted to his fractured part. As an inpatient he had taken treatment for a period of six months. It is further case of claimant that he was working as a carpenter and was earning Rs.9,000/- per month and because of the permanent injuries which he has sustained he suffered loss of income and amenities in life and his future prospects of marriage has been affected and on these grounds a claim petition was filed.

After issuance of notice, respondent No.1 remained absent and hence, he has been placed exparte. Respondent No.2 appeared and filed his objections denying the contents of the petition. It is contended that the policy was in force and the said accident has not taken place due to rash and negligent act of the rider of the motor cycle and on these grounds, he prayed for dismissal.

On the basis of the above pleadings, the Tribunal has framed the following issues: 1. Whether the claimant proves that he sustained injuries in the alleged RTA that occurred on 12.12.2007 at about 1.00 p.m. at Hesarahalli Bus-stop, Nittur Hobli, Gubbi Taluk, due to actionable negligence by the rider of the Hero Honda Motor Bike bearing Reg. No.KA.06.Q.4794?

Whether the claimant proves his entitlement for compensation? If yes, what is the quantum of compensation and from whom?

What order or award?

In order to prove his case, the petitioner got examined himself as PW-1 and got examined the Doctor as PW-1 and got marked Exs.P1 to 8 documents. The petitioner got examined one witness through commissioner, who got marked Exs.C-1 to 4 documents. Respondent No.2 got marked one document with consent as Ex.R-1.

After hearing the parties to the lis, the impugned order came to be passed, wherein the Tribunal has awarded compensation of Rs.2,42,400/-. Being aggrieved by the said order the present appeal has been preferred.

The main grounds urged by Sri. Mustan Ahmed, learned counsel for the appellant are that the impugned judgment and award passed by the Tribunal is liable to be set aside and that there is no proper appreciation of evidence. Learned counsel further contended that though PW-2, Doctor had deposed before the Tribunal that the petitioner has sustained the disability to the extent of 35%, the Tribunal has considered the disability to the extent of 20% only and has awarded a sum of Rs.1,00,800/- towards loss of future earnings. It is further contended that at the time of accident, the appellant-claimant was working as a carpenter and was earning Rs.9,000/- per months, but the Tribunal has considered income of the appellant at Rs.3,000/- per month and has awarded the compensation on the lower side.

It is further contended that at the time of accident, the appellant was aged about 30 years and the Tribunal has taken the multiplier of ''14'' instead of ''17''. He further contended that though the injuries suffered by the appellant are grievous in nature and he has taken treatment for a period of six months in Adi Chunchanagiri Hospital and Research Center, the Tribunal has awarded only Rs.30,000/- towards medical expenses, which is also on the lower side. He further contended that the Tribunal has not properly assessed the compensation towards attendant charges and loss of income during laid up period. On these grounds he prayed for enhancement of the compensation awarded by the Tribunal.

Per contra, Sri. O. Mahesh, learned counsel for respondent - Insurance Company vehemently argued that the totality of the award amount which has been awarded by the Tribunal is just and reasonable. Even though the Tribunal while assessing disability has not stated about the loss of earnings regarding his profession, which he is carrying on and the disability assessed by the PW-2, Doctor to the extent of 35% is on the higher side, the Tribunal has taken disability of 20% without there being any basis and without proof of loss of earning capacity. He further contended that during 2007 the notional income was taken at the rate of Rs.3,000/- and in this regard, the Tribunal has rightly awarded the compensation towards loss of future earnings and on other heads. On these grounds, he prayed for dismissal of the appeal.

I have gone through the judgment and award of the trial Court and I have also perused the original records, which have been secured from the trial Court. On careful perusal of the records, it is found that there is no dispute with regard to the vehicle involved in the accident and the said vehicle has been insured with respondent No.2 ? Insurance Company and the policy was in force as on the date of accident. The only question which has been raised before this Court is, whether the compensation awarded by the Tribunal is just and proper. On perusal of records, the appellantclaimant has sustained the following injuries: 1. Lacerated injury over the left side of scalp,

Lacerated injury over the lower 1/3rd right leg,

Swelling over both the legs,

Abrasion over both the legs and arms,

Fracture of open of shaft and Tibia and Fibula.

The appellant has also got examined PW-2, Dr. Gunnaiah and in his evidence he has deposed that after surgical treatment to the claimant, an operation was done on 19.10.2007 and fixed a steel rod on right leg fracture and the claimant has undergone another orthopedic operation on his left leg fracture, where implants were fixed to fractured parts. After taking into consideration the injuries and after examining the claimant on 11.10.2008, the Doctor has found the following disabilities: 1. Shortening of 2 cm of right leg.

Restricted the rotation of right knee about 30 degree.

Restricted the movements of right leg dorsum about 20 degree.

Shortening 3 cm of left leg.

Restricted the rotation of right knee about 40 degree.

Restricted the movements of right leg dorsum about 20 degree.

Thereafter, the Doctor has assessed the disability of total body to the extent of 35 %. On going through the evidence of PW.2 he has assessed disability to the extent of 35% but he has not assessed the loss of earning capacity with reference to the profession of the claimant and even in this regard no proper evidence has been led, so as to assess the loss of earning capacity of the claimant-appellant. But any how, the Tribunal has taken the disability to the whole body to the extent of 20% and on the basis of that the calculation has been done for the purpose of assessing the loss of future earnings. Admittedly, respondent No.2 has not preferred any appeal against the said finding. Under these circumstances, I feel that whatever the disability which has been taken into account by the Tribunal appears to be just and proper. Though it is contended that the appellant-claimant was working as a Carpenter and was earning Rs.9,000/- per month, but in order to substantiate the said fact, the appellant-claimant has not produced any material to substantiate the said fact and also he has not led any evidence of any persons with whom he has worked as a carpenter or he has performed the work of carpentry in any of the place.

In the said facts and circumstances, taking into consideration 2007 is the year of the accident, if the notional income of Rs.4,000/- per month is taken for the purpose of assessment of loss of future earnings, which was the yardstick even in the case of settlement or Lok-Adalath. during laid up period, that appears to be just and proper. In such circumstances, by taking into consideration the age of the appellant-claimant, disability to the whole body to the extent of 20%, the claimant-appellant is entitled to an amount of Rs.1,63,200/- towards loss of future earnings.

As discussed above, there is shortening of 2 cm of right leg, restricted the rotation of right knee about 30 degree, restricted the movements of right leg dorsum about 20 degree, shortening 3 cm of left leg, restricted the rotation of right knee about 40 degree and restricted the movements of right leg dorsum about 20 degree. Keeping in view the said facts and circumstances, the compensation awarded towards pain and agony appears to be on the lower side. In that light, under the head pain and agony, the appellant is entitled to a total compensation of Rs.55,000/-.

Considering the injury sustained by the claimant, some persons might have attended the appellant-claimant and he might have spent some amount for his diet and nourishment. In this behalf, he is entitled for a sum of Rs.8,000/- towards attendants and nourishment charges instead of Rs.5,000/-.

Though the learned counsel for the appellant had contended that the appellant-claimant has taken treatment in Adi Chunchanagiri Hospital and Research Center from 12.12.2007 till 18.02.2008 and has spent huge amount for medical expenses but in order to substantiate the said fact, he has not produced any documents, he has only produced Ex.P-6, Medical Bills. After considering the said bills, the Tribunal has awarded whatever amount which has been spent on medical bills to the extent of Rs.30,000/-. In this regard, I feel that there is no need to enhance any amount under the said head.

The fact remains that when the appellantclaimant has sustained above said injuries, he might have taken treatment for a minimum period of three months, under such circumstance, even though he was a daily earner, in such circumstances there will be loss of income during the treatment period. In the above circumstance, he is also entitled for some amount of compensation.

Learned counsel for respondent No.2 has vehemently argued and contended that while assessing the loss of future earnings, already the total income will be taken into consideration. IN that light he contended that percentage of income which has been awarded under the head of loss of future earnings has to be deducted while awarding loss of income during laid up period. The said contention appears to be having some force, if that is taken into consideration and on that basis if the loss of income during laid up period is assessed for a period of three months, then it will be Rs.9,600/- instead of Rs.6,600/- and even though by taking into consideration the injuries suffered by the appellant-claimant, there will be a loss of amenities in the life of the appellant. As such, he is entitled for an amount of Rs.20,000/- towards loss of amenities instead of Rs.15,000/-.

The Doctor, PW-2 has also specifically stated that for having inserted the implants, he shall have to undergo two operations for removal of rods and his hospitalization and has deposed that for the said purposes, a sum of Rs.30,000/- to Rs.35,000/- is required. Though such is the evidence, but the Tribunal has awarded only Rs.20,000/- towards loss of future medical expenses. In this behalf, the appellantclaimant is entitled to a compensation of Rs.35,000/- towards loss of future medical expenses.

Keeping in view the above discussions, the compensation requires to be enhanced by Rs.1,08,400/- Accordingly, I proceed to pass the following ORDER i) The appeal is partly allowed.

ii) The judgment and award of the Tribunal in MVC No.529/2008 is modified as indicated above.

ii) The appellant-claimant is entitled to a total compensation of Rs.3,50,800/- with interest at 6% per annum from the date of petition till realization. Since, already the Tribunal has awarded Rs.2,42,400/-, after deducting the same the appellant-claimant is entitled to additional compensation of Rs.1,08,400/- with interest at 6% per annum.

iii) Respondent No.2 - Insurance Company is directed to deposit the compensation awarded by the Tribunal as well as the enhanced compensation awarded by this Court within a period of six months from the date of receipt of certified copy of this order.