Ashok Nethalkar Nethalkar vs Kempegowda and Others

N.K. Patil, J.—This appeal is filed by the claimant against the common judgment and award dated 31st January 2006 passed in M.V.C. No. 234/2005 on the file of the II Addl. Civil Judge (Sr. Dvn.) and G.J.M. and Motor Accident Claims Tribunal, Davanagere.

The Tribunal by its judgment and award, awarded compensation of Rs. 56,902/- with interest at 6% p.a. from the date of petition till the date of realisation on account of the injuries sustained by the appellant in the road traffic accident The appellant contending that quantum of compensation awarded as inadequate and require to be enhanced, has presented this appeal

3 The appellant/ claimant was aged about 46 years at the time of accident and was working in Karnataka Bank and he was hale and healthy prior to the accident. He met with an accident on 28.06.2003 due to the rash and negligent driving by the Driver of the offending vehicle. He sustained injuries i.e. swelling over the right knee joint, clinically evidence of fracture of patella, abrasion over the knee present, the left lag and as per the X-ray of right knee shows fracture of patella. The Doctor has assessed the disability of 25% to the limb, It is the further case of the appellant/claimant that he undergone treatment for a period of 10 days as inpatient The claimant has spent huge amount towards conveyance, nourishing food and attendant charges apart from incidental expenses. Taking all these aspects, he fifed the claim petition u/s 166 of the Motor Vehicles Act, claiming compensation against the owner, driver and insurer of the offending vehicle.

The said matter has come up before the Tribunal for consideration and the Tribunal after appreciation of the oral and documentary evidence available on record allowed the claim petition in part by awarding a sum of Rs. 56,902/- under different heads, but did not award any compensation towards loss of amenities, discomfort and unhappiness. Being not satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal claiming enhancement of compensation.

We have heard the learned Counsel appearing for the appellant and the respondents.

After careful perusal of the impugned judgment and award passed by the Tribunal, the Tribunal has rightly awarded compensation of Rs. 33,538/- towards medical expenses and the same is just and reasonable and does not call for interference by this Court However, the Tribunal erred in not awarding reasonable compensation under the head injury, pain and suffering, loss of income during the laid up period, conveyance, nourishing food and attendant changes and has not awarded any compensation under the head loss of amenities, discomfort and unhappiness. The appellant has spent huge amount on account of the injuries sustained in the road traffic accident as referred above. The appellant had undergone treatment for a period of 10 days in the hospital as an inpatient and spent considerable amount towards conveyance, nourishing food and attendant charges. It is the further case of the appellant that the Doctor has advised the appellant to take rest due to the mental agony and discomfort and the Doctor has also assessed 25% disability to the particular limb and discomfort and unhappiness persists through out his life.

Having regard to the facts and circumstances of the case as stated above the appellant is entitled for a compensation of Rs. 25,000/- towards injury, pain and suffering Rs. 10,000/- towards conveyance, nourishing food and attendant charges, Rs. 10,000/- towards loss of income during treatment period and Rs. 15,000/- towards loss of amenities, discomfort and unhappiness. In all the appellant is entitled for a total compensation of Rs. 93,538/- as against Rs. 56,902/- awarded by the Tribunal. There will be an enhancement of Rs. 36,636/-with interest at 6% p.a. from the date of petition till the date of realisation.

In the light of the facts and circumstances referred above, the instant appeal filed by the appellant-claimant is allowed in part. The impugned common judgment and award dated 31.01.2006 in M.V.C. No. 234/2005 passed by the II Addl. Civil Judge (Sr. Dvn.) and C.J.M. Davanagere is hereby modified by awarding a sum of Rs. 36,536/- with interest at 6% p.a. from the date of petition till the date of realisation in addition to the compensation awarded by the Tribunal.

The 3rd respondent - Insurance Company is directed to deposit the enhanced amount with interest within a period of three weeks from the date of receipt of copy of this judgment.

The enhanced amount with accrued interest shall be released in favour of the appellant/ claimant immediately on deposit.

Office to draw the award accordingly.