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Judgment
K. Govindarajulu, J.—Claimant in MVC 108/2005 on the file of Prl. Civil Judge (Sr. Dn.), Srirangapama is the Appellant.
Case of the Appellant is that on 24.11.2004 he was travelling in a bus bearing registration No. KA-19-4319 to reach Government hospital at Mandya. When the bus was moving on Bannur road, the driver of another bus bearing registration No. KA-1. l-A-4554, has driven the bus rashly, negligently, dashed against the back side of the bus in which the Petitioner was travelling. On account of it the Petitioner has sustained injuries. So pray for a compensation of Rs. 1,50,000/-.
The insurer of the bus-Respondent No. 3 has filed objections, called upon the Petitioner to prove the impact of the accident, contend that the claim is exaggerated. Plead for dismissal of the claim application.
PW-1 examined is the claimant. CW-1 examined is the doctor who has given the disability certificate and spoken about the disability of PW-1. Exs.P1 to P5, Exs.C1 to C4 are marked. Learned Trial Judge disbelieved the case of the claimant in regard to permanent disability awarded a sum of Rs. 32,300/-.
Learned advocate for the claimant contend that the compensation awarded by the learned member of the Tribunal is inadequate to the impact on the claimant on account of the accident. The principle to be borne in by the Court is to award just compensation. This is missing from the reasoning of the learned member of the Tribunal. So pray for enhancing the compensation.
It is rebutted by the learned advocate for the insurance company contending that the Tribunal has considered ail aspects of the case, had the opportunity to observe the witness. So the approach of the Tribunal is just. So pray for dismissal of the appeal.
Material submissions probabilise, accident is admitted, actionable negligence is not disputed, Court has to give a finding on the quantum of compensation.
PW-1 in the course of his evidence has got marked Ex.P4 the wound certificate. The particulars of the wound are as follows:
i. Abrasion L/3 fibula (L)
ii. Swelling tenderness (L) ankle
Claimant also contends that in the accident, left fibula, ankle has received grievous injuries and he was inpatient for a week at General Hospital, Mandya, for six months he has taken treatment as out patient, spent Rs. 15,000/- for medicines.
CW-1 examined is a Dr. Pandarinath. Dr. Pandarinath has opined that there is a disability to the Petitioner to an extent of 25% of the Left Lower Limb. The learned member of the Tribunal has not awarded any compensation under the head of loss of earning capacity on the ground that the Petitioner has not lost his employment, he is serving as a ''D'' group employee.
The law declared by the Apex Court in Sarla Verma would lay down the principle that Court should he active and find out the real impact and award compensation. In the facts of the case the injured claimant is aged about 40 years, he is working as a ''D'' group workman in Health Department. Petitioner has not produced any salary certificate to support, the salary drawn, leave lost, pecuniary loss on account of the accident. A mention is made in the chief examination of loosing the earned leave, it is a very vague assertion. In view of fracture of L3 fibula, immobilization for nearly 5 to 6 months is probabilised. So under the head of pain and sufferings a sum of Rs. 20,000/- is awarded. Under the head of laid up period assessing the income at Rs. 4,000/- for a period of 6 months a sum of Rs. 24,000/-is awarded. In view of the disability of the limb at 25%, it works out to 8% of the whole body, 8% of Rs. 4000/- is Rs. 320/- � 12 Rs. 3,840/- the multiplier i.e., applicable is ''15''. It works out to Rs. 57,600/-. The same is awarded under the head of loss of earning capacity. Under the head of medicines including future medical expenses, a sum of � 15,000/- is awarded. Under the head of attendant, diet, transportation a sum of Rs. 10,000/- is awarded. In total the claimant is entitled for Rs. 1.26,600/-. Rs. 32,300/- being awarded by the Tribunal the difference will work out to Rs. 94,300/-. The claimant-is entitled for interest at. 6% (sic) on the enhanced amount from the date of petition till deposit. 70% of the enhanced amount with interest be deposited in a Nationalised bank authorising the Petitioner to draw interest at an interval of 3 months.
Appeal is allowed in part.
Learned advocate for the Insurance Company has filed a memo for being spoken to.
Heard.
Two submissions are addressed. One on the ground of Court awarding compensation under the head loss of earning capacity'', secondly under the head of laid up period''.
According to the learned advocate, the claimant is a Government servant, there is no chances of he loosing the employment. So he cannot be awarded compensation under the head of loss of earning capacity''. No evidence is forthcoming as to the availment of leave and also no documents are produced in support of the loss of leave.
On the other hand he submitted that the approach of the Court below in arriving at the compensation should not be assessed technically.
The main grievance of the learned advocate for the Insurance Company is that the Petitioner is a Government servant. So he is not entitled for any compensation under the bead ''loss of earning capacity'' as the Petitioner is a ''D'' group workman in the Health Department. He has not produced any single document to show that he is a Government servant.
When there is a dispute in regard to the status of the person, it has not been taken note of while arriving at the compensation. So, if the approach of the Insurance Company is accepted, it amounts to appropriate reprobate. If it is admitted that the claimant is a Government servant and considered for compensation, this method could have been accepted. When the Petitioner come before the Court as a Government servant, the Respondent Insurance Company call upon the Petitioner to prove the same. Petitioner did not produce any document in regard to his Government service. Now, the Insurance Company wants to treat him as a Government servant. This dual approach is not permissible. Court holds that the method adopted by the Insurance Company to come up with the explanation is not satisfactory. The reason recorded by the Court for compensation do not require any interference.