D.M. Manjunatha vs The Managing Partner, Bindu Enterprises and Others

S.N. Satyanarayana, J.

The claimant in MVC No. 2066/2010 on the file of MACT. Bengaluru, has come up in this appeal seeking enhancement of compensation awarded by the Tribunal and for setting aside the finding of Tribunal in so far as it pertains to attributing contributory negligence on his part at 50% and consequently, reducing the compensation to an extent of 50%.

Though this appeal is at the stage of admission, since lower Court records are received, at the request of learned counsel appearing for both the parties, this matter is taken up for final disposal.

Brief facts leading to this appeal are as under:--

The claimant, who was a bar bender, while driving a Maruthi omni Van bearing registration No. KA-53-M-5093 on 01.01.2010 at about 12:30 p.m. near New Horizon School on Hoskote-Chintamani Road, Nandagudi hobli, Hosakote Taluk, met with an accident involving lorry bearing registration No. KA-53-4689 owned by the 1st respondent and insured with the 2nd respondent and sustained serious injury to his right hand and consequently, resulting in amputation of his right hand above the elbow level leaving a stump of about 10 inches. The claimant filed claim petition before the Tribunal seeking compensation.

In the proceedings before the Tribunal, the claimant examined himself as P.W. 1 and got examined the Doctor, who assessed his disability as P.W. 2 and got marked documents as per Exs. P1 to P20. Respondents have not chosen to adduce either oral or documentary evidence before the Tribunal. Taking into consideration the injury suffered by the claimant resulting in amputation of his right hand above the elbow level and the fact that he was hospitalized for about 7 days from 01.01.2010 to 07.01.2010, the Tribunal awarded compensation to the claimant in a sum of Rs. 3,62,000/-. Relying on the IMV report, Ex. P6, to the effect that damage was caused to the doors and windows of the Maruthi Omni Van on the right side and having regard to the fact that only claimant was injured in the accident though he was traveling along with his wife and child at the relevant time and that too injury was caused to his right hand resulting in amputation of the same above elbow, the Tribunal has drawn a presumption that the petitioner would have kept his hand outside the window while driving the Van and accordingly, fixed contributory negligence on his part in occurrence of the accident at 50% while restricting liability of the owner and insurer of the lorry to pay compensation at 50%.

The aforesaid accident is not in dispute so also the injury suffered by the claimant. On going through the material on record, it is clearly seen that at the relevant time of the accident, the claimant, who was driving the Van belonging to his brother-in-law was taking along with him his wife and child. Other than the claimant, none is injured. The claimant has suffered injury to his right hand. Therefore, the presumption drawn by the Tribunal in holding that the said injury suffered by the claimant is due to contributory negligence on his part appears to be just and proper. If only he had kept his hand away from the window frame of Maruti Omni, he would not have suffered the said injury and would not have come before the Court with the history of the accident seeking compensation. Therefore, this Court feel that the finding of the Tribunal in so far as it relates to holding that the claimant has also attributed to the occurrence of the accident is correct. Though such finding is correct, the contributory negligence fixed on the part of the claimant in occurrence of the accident at 50% by the Tribunal is on the higher side and the same is reduced to 40%.

Now, coming to the compensation awarded by the Tribunal, having regard to the injury sustained by the claimant to his right hand in the accident resulting in amputation of the same above elbow, the compensation awarded towards pain and suffering is on the lower side and same is enhanced from Rs. 50,000/- to Rs. 75,000/-. Similarly, compensation awarded towards loss of happiness and future amenities is enhanced from Rs. 50,000/- to Rs. 75,000/-.

It is the case of the claimant that he was working as a bar bender prior to the accident. The claimant has not produced any material to show his income. Since the accident is of the year 2010, his income is taken notionally at Rs. 6,000/- per month. So far as loss of income during the treatment period is concerned, the claimant is entitled to compensation of Rs. 18,000/-, which is calculated by taking his income notionally at Rs. 6,000/- p.m. and laid-up period for three months. The compensation awarded towards incidental charges at Rs. 12,000/- is retained. Having regard to the fact that the claimant has furnished medical bills to an extent of Rs. 45,481/-, compensation awarded under the said head at Rs. 50,000/- is left undisturbed.

Coming to the compensation awarded towards loss of future income, the disability taken by the Tribunal at 25% to the whole body is retained. By taking the income of the claimant at Rs. 6,000/- p.m and applying the appropriate multiplier of 16, the compensation is reassessed as under:--

"Rs. 6000/- x 25% x 12 x 16 = Rs. 2,88,000/-"

With this, the total compensation payable to the claimant is arrived at Rs. 5,18,000/-. In view of the fact that contributory negligence on the part of the claimant in occurrence of the accident is fixed at 40%, the compensation is reduced proportionately (Rs. 5,18,000/- - Rs. 2,07,200/-). The claimant is entitled to compensation in a sum of Rs. 3,10,800/- as against Rs. 1,81,000/- awarded by the Tribunal.

Accordingly, this appeal is allowed in part. The claimant is entitled to compensation of Rs. 3,10,800/- as against Rs. 1,81,000/- awarded by the Tribunal i.e., enhanced compensation of 1,29,800/- with interest at 6% per annum from the date of the petition till the date of deposit of the entire amount. Respondent Nos. 1 and 2, who are the owner and insurer of the offending lorry respectively, either jointly or severally, shall deposit the enhanced compensation with interest within 8 weeks from the date of receipt of certified copy of this judgment.