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Judgment
S.N. Satyanarayana, J—The claimant in MVC No. 7910/2008 on the file of MACT, Bengaluru has come up in this appeal seeking enhancement of compensation awarded for the injuries suffered in the road traffic accident dated 29.04.2007. While preferring this appeal a clarification is also sought with reference to the error committed in the judgment rendered by the tribunal wherein while considering the issues which was framed the tribunal has committed an error in showing the accident has taken place due to the rash and negligent driving of the bus in which the claimant was traveling which is erroneous in the light of amended pleading and evidence. The same is sought to be clarified in this appeal.
Though this appeal is at the stage of admission, since LCR is received, at the request of the counsel appearing for both the parties, this matter is taken up for final disposal.
The fact that the claimant was inmate of bus bearing registration No. KA 03 B 5789 which was proceeding from Hyderabad to Bengaluru is not in dispute. It is further not in dispute that during the intervening night of 28.04.2007 and 29.04.2007 the bus in which she was traveling was proceeding near Y'' junction near Kalluru Garladinne Mandal, Ananthapur district, Andhra Pradesh. The said bus met with accident at about 3.30 p.m. at early hours of 29.04.2007 involving another bus bearing registration No. KA 38/3556 belonging to the second respondent and insured with first respondent herein.
The LCR would reveal that immediately after the accident the claimant was taken to Government Hospital, Ananthapur. From there she was shifted to Malya Hospital at Bengaluru on the same day by about 10.20 a.m. The records would disclose that she suffered grievous injuries to the right forearm right from shoulder level to the elbow with multiple fractures. The claimant was inmate in Malya hospital from 29.04.2007 to 14.05.2007, during which period three procedures were conducted on the injured right arm. The wound debridement and external fixators were provided by conducting procedure on 29.04.2007 and subsequently on 03.05.2007 open reduction and induction and internal fixation to ulna was conducted. It is seen that subsequently on 11.06.2007 she was taken to Malya Hospital as day care patient for removal of external fixator to the injured arm. The evidence on record would also disclose that subsequently on 06.09.2007 she was taken to M N Ortho Hospital at Madras for internal fixation of a titanium implant specifically designed to suit her right humerous. After conducting the said procedure she has come back to Bengaluru and she has taken follow up treatment.
In the claim petition filed by her she produced all the medical documents available with her to substantiate the nature of treatment provided to her right forearm and also the follow up treatment which is taken by her from time to time in Malya Hospital and other hospitals. However, after adducing evidence as P.W. 1 she has examined a doctor as P.W. 2, who is admittedly not connected with the treatment given to her, however he has deposed based on the documents which are available on record. The court below accepting the evidence of claimant and the doctor P.W. 2 proceeded to allow the claim petition awarding compensation to claimant in a sum of Rs. 6,31,082/-. Out of which major component is medical expenses to the tune of Rs. 4,07,282/-. The balance is compensation awarded for pain and suffering in a sum at Rs. 65,000/-, for amenities Rs. 40,000/-. In addition a sum of Rs. 1,18,800/- is awarded towards loss of income due to permanent disability which is calculated taking the notional income of claimant who is a housewife at Rs. 3,000/- and the disability to whole body at 30%. The claimant being aggrieved by the compensation awarded under the heads loss of amenities and loss of future disability has come up in this appeal seeking enhancement of the same.
While preferring this appeal she also sought further compensation payable towards conveyance charges, nutritious food, attendant charges during the period when she has taken treatment in Bengaluru as well as at Madras.
Heard the learned counsel for the appellant as well as contesting respondent. Perused the judgment impugned with reference to the pleading, oral and documentary evidence available in lower court records and also the grounds of appeal. On going through the same it is seen that the accident is not in dispute and it is also not in dispute that the accident is caused due to rash and negligent driving of bus bearing No. KA 38/3556 which is charge sheeted for the said offence. However, while filing the appeal an error is committed by the claimant in describing the accident as having taken place due to the error on the part of the driver of the bus in which she was traveling. Whereas the police records which are relied upon by her would speak otherwise. Having noticed this mistake the claimant amended the claim petition in describing the accident as having taken place due to rash and negligent driving of the bus belonging to the second respondent herein insured with first respondent.
Though the amendment was allowed and petitioner was permitted to amend the pleading, the tribunal while deciding the claim based on unaltered issues committed an error in describing in the judgment that the accident has taken place due to rash and negligent driving of the bus in which she was traveling. However, the operative portion would speak correctly that the respondents No. 1 and 2 are liable to pay the compensation with interest at 6% p.a. and the second respondent insurer of the offending bus was directed to deposit the entire compensation amount. In that view of the matter, this court would clarify that the aforesaid error would not come to the help of respondents No. 1 and 2 herein to seek exoneration of the liability fixed on them for payment of compensation. With this clarification now the prayer of the claimant seeking enhancement of compensation is taken.
On going through the entire records it is seen that the accident which is caused has left a ghastly mark on the right arm of the claimant rendering it totally useless. Therefore in the facts and circumstances taking the disability at 30% is on the lower side. The same ought to have taken atleast to a minimum of 50%. For the reason since there is no amputation the question of taking the same beyond 50% does not arise. Therefore, the court below ought to have taken the disability at 50%. If the same is taken at 50% the claimant would be entitled to additional compensation in a sum of Rs. 79,200/- towards loss of future income which has to be treated as compensation towards disability. In addition to that the claimant is also entitled to enhanced compensation under the head amenities which is required to be enhanced from Rs. 40,000/- to Rs. 75,000/- thereby holding that the claimant is entitled to additional compensation at Rs. 35,000/- on that count.
In this proceedings the claimant has sought for awarding compensation towards transportation charges, attendant charges and nutritious food and boarding and lodging when she was at Madras alongwith attender for getting her right hand fixed in M N Ortho Centre. So far as this is concerned, the counsel for the respondent Insurance Company Mr. Shivally oppose that on the ground that the claimant has already received an additional sum at Rs. 49,500/- which is included in the set of bills where it is stated that there is duplication and in respect of which there is no evidence available on record. On going through the documents it is seen that a bill dated 20.07.2009 which is produced showing the claimant has incurred a sum at Rs. 49,500/- towards treatment in M N Ortho hospital, Madras. If that is compared to the bill which is issued for the period of September, 2007, the same appears to be duplication as rightly contended by the counsel for the respondent. In that view of the matter, the amount which is awarded for that bill by the tribunal would cover the compensation which the claimant is seeking with reference to the attendant charges, transportation and other heads.
In that view of the matter, this court feel that the claimant is entitled to succeed in this appeal only to an extent of enhanced compensation in a sum of Rs. 1,14,800/- which is rounded off to Rs. 1,15,000/- which she shall be entitled to receive with interest at 6% from the date of petition till the date of deposit of entire amount. The contesting respondent Insurance Company shall deposit the same within eight weeks from the date of receipt of certified copy of the judgment in this proceedings. Accordingly, the appeal is allowed in part.