AI Structured Summary
Not yet generated for this judgment
Judgment
H.S. Kempanna, J.—Though this matter is listed for admission, with the consent of learned Counsel for the respective parties and as records have also been received, it is taken up for final disposal.
This is appeal is by the claimant seeking for enhancement of compensation in respect of the injuries which he has sustained in a motor accident.
The brief facts of the case are:
The Appellant claimant filed claim petition before the tribunal claiming compensation in a sum of Rs. 3,00,000/- against the Respondents on account of bodily injuries which he sustained in a motor accident that took place on 21.5.2007 at about 9.45 p.m. while he was proceeding as a pillion rider in the motorcycle bearing No. KA-20-S-411 near Dhupada Katte village situated in between Karkala and Nitte village. The motor cycle involved in the accident: was owned by the 1st Respondent and insured with the 2nd Respondent at the relevant point of time. On account of the accident he sustained severe injuries comprising fractures. He took treatment for the same in the hospital by spending huge amount. Despite the same, he is not completely cured of the injuries due to which he is unable to carry on his avocation as Archak which has resulted in loss of income, accordingly sought for grant of compensation to him.
Amongst the Respondents, on service of notice, the 1st Respondent-owner remained absent. Hence he was placed exparte. The 2nd Respondent-insurer appeared and contested the petition. It was contended that the accident has not occurred due to the fault of the rider of the motorcycle and further as the rider did not possess valid and effective driving licence and as there is breach of the conditions of the policy, they are not liable to pay any compensation, accordingly sought for dismissal of the petition.
The Tribunal, on considering the oral and documentary evidence on record held that the accident in question has taken place solely on account of the fault of the rider of the motorcycle, as such the claimant has established actionable negligence. Further looking to the evidence of the claimant, PW-2, the Medical Officer, who examined him and the wound certificate Ex.P2 placed on record, the Tribunal awarded total compensation of Rs. 69,300/- with interest at 6% p.a. from the date of petition till realisation. It further saddled the liability of payment of compensation on the 2nd Respondent-insurer.
The Appellant-claimant being aggrieved of the quantum of compensation is in appeal before this Court.
Learned Counsel for the Appellant submitted that the Tribunal has erred in not awarding commensurate compensation towards conveyance, nourishment and attendant charges, loss of amenities, loss of future income and further it has not awarded any compensation either towards loss of income during laid up period and loss of future income, by correctly determining the income of the claimant. Hence a case for enhancement is made out. However he fairly did not make any grievance in respect of the compensation awarded towards ''pain and suffering'' and ''medical expenses''.
Per contra, learned Counsel appearing for the contesting insurer supported the impugned judgment and award.
Taking the rival submission, the evidence and the documents on record, the point that arises for my consideration is:
Whether the Appellant-claimant has made out a case enhancement ?
Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment taken, amount spent for the same are also not in dispute. According to the claimant in the impugned accident he sustained comminuted fracture of right tibia and right medial malleolus. He took treatment in the hospital for 9 days as an inpatient during which period he also underwent, surgery. All these factors naturally follow with that, he must have spent considerable amount towards conveyance, nourishment and attendant charges. The Tribunal has awarded only a sum of Rs. 1,800/- towards the same. Having regard to what is stated above, the claimant is awarded a sum of Rs. 10,000/- towards conveyance, nourishment and attendant charges as against Rs. 1,800/- awarded by the Tribunal. Further the Tribunal has awarded a sum of Rs. 15,000/- towards loss of amenities. Having regard to the nature of fracture sustained, the disability of 25% to the right lower limb as stated to by the Medical Officer PW-2 and as he has suffered a fracture in the impugned accident despite he being a polio patient, as he has to suffer discomfort and unhappiness, he is awarded a further sum of Rs. 5,000/- in addition to Rs. 15,000/- awarded by the Tribunal towards loss of amenities. Hence the claimant his awarded a sum of Rs. 20,000/- in all towards loss of amenities. The evidence of PW-2 the Medical Officer reveals that the claimant requires future medical expenses to an extent of Rs. 20,000/- for removal of implants. The Tribunal taking the same into consideration has awarded a sum of Rs. 7,500/-. Therefore, in the facts and circumstances, having regard to the date of accident, a further sum of Rs. 2,500/- is awarded to the claimant towards future medical expenses in addition to Rs. 7,500/- awarded by the Tribunal.
The next aspect to be considered is loss of income during laid up period and loss of income which has not been considered by the Tribunal at all. The claimant claims that he is aged 45 years, a Archak by profession, earning more than Rs. 15,000/- p.m. In evidence before court he has specifically stated that he is working as Archak in Mahaganapathi temple situated at Nitte village. His evidence does not reveal that he was undertaking any other archak work privately other than what he was doing in the temple, stated to above. The Tribunal, on appreciation of the material has taken his income at Rs. 3,000/- p.m. The accident has taken place on 21.5.2007. Therefore, taking these factors into consideration it: is just and proper to fix the income of the claimant at Rs. 3,500/- p.m. as against Rs. 3,000/-determined by the Tribunal. The Appellant-claimant, as already pointed out has sustained two fractures, one of which is comminuted fracture. Taking these factors into consideration, he could not have attended to his normal work at least for a period of three months for which period he should be compensated towards loss of income. Hence, the claimant is awarded Rs. 10,500/-towards loss of income during laid up period.
The next aspect, that dwells for consideration is loss of future income. According to the claimant on account of injuries sustained he is unable to discharge his functions. The medical Officer PW-2 who has examined him has stated that the claimant has disability to an extent of 25% to the right limb and has the permanent disability to an extent of 12% to the whole body. His evidence further discloses that the claimant by birth is a polio patient which has attacked his left lower limb. Therefore, in the facts and circumstances, having regard to the testimony of PW-2 the Medical Officer, it is just and proper to take the permanent disability suffered by the claimant at 8%. Admittedly the claimant is aged 45 years. Therefore, the appropriate multiplier that becomes applicable is 14. I have already held that the claimant has suffered permanent disability to an extent of 8%. Therefore, taking all these factors into consideration, the claimant would be entitled to a sum of Rs. 47,040/- towards future loss of income(3500 x 12 x 8 x 14). Thus the claimant in all would be entitled to total compensation of Rs. 1,42,540/-, the break up of which is as follows:
a) Pain and suffering
- Rs.
30,000/-
b) Medical expenses
- Rs.
15,000/-
e) Conveyance, nourishment
& attendant charges
-Rs.
10,000/-
d) loss of amenities
- Rs.
20,000/-
e) Future medical expenses
- Rs.
10,000/-
f) Loss of income during laid
up period
- Rs.
10,500/-
g) Loss of future income
- Rs.
47,040/-
Total
-Rs.
1,42,540/-
Accordingly the appeal has to succeed in part. Thus, the Appellant-claimant is entitled to Rs. 1,42,540/-.
In the result, for the foregoing reasons, I proceed to pass the following:
ORDER
i) The appeal is allowed in part. The impugned judgment and award passed by the Tribunal is modified and the Appellant-claimant is awarded total compensation of Rs. 1.42,540/- as against Rs. 69,300/-awarded by the Tribunal with interest: at 6% p.m. from the date of petition till realisation. Enhanced compensation comes to Rs. 73,240/-.
ii) 2nd Respondent-insurer shall deposit the entire enhanced compensation before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award.
iii) On deposit of enhanced compensation with interest, a sum of Rs. 40,000/- with proportionate interest shall be deposited in the name of the Appellant-claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years renewable for a further period of three years. He is entitled to draw the interest accrued on the said deposit periodically. The balance of Rs. 33,240/- with proportionate interest is ordered to be released in favour of the Appellant-claimant.
Office to draw the award accordingly.