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Judgment
H.S. Kempanna
Though this matter is listed for admission, with the consent of the Learned counsel for the respective parties, as records have also been received, it is taken up for final disposal
This appeal is by the claimant seeking for enhancement of the compensation in respect of the personal injuries, which he has sustained In a motor accident that took place on 16.03.2006 at about 5.00 a.m., near Madanayakanahalli situated on NH4 involving the motor cycle bearing registration No. KA-02-EF-1671 owned by the first respondent and insured with the second respondent at the relevant point of time. In the impugned accident she sustained grievous injuries which comprised of fractures for which she took treatment in the Hospital for a week dining which period she also underwent one operation. She spent huge money for the treatment of her injuries, despite the came, she is not completely cured of the injuries due to which she is unable to attend to her work, which has resulted in loss of income to her. Accordingly, she sought for grant of compensation from the respondents.
After service of notice respondents appeared and contested the claim of the petitioner. The respondents commonly contended that the accident in question has not taken place due to the fault of the rider of the motor cycle, On the other hand, it was due to the negligence of the claimant herself Further, the first respondent-owner contended that the rider did possess valid and effective driving license to ride the motor cycle and as his vehicle had been insured with the second respondent, if for any reason, he is held liable to pay any compensation, the same be saddled on the second respondent insurer The second respondent insurer further contended that the rider of the motor cycle did not possess valid and effective driving license as such there is breach of terms an conditions of the policy issued committed by the first respondent-owner. They also denied all other averments made by the claimant in her petition and condition that they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal framed in all three issues.
The claimant in support of her case got herself examined as PW1 and the doctor who has treated him as PW2. He produced in all 10 document, which came to be marked as exhibits P1 to P10. On behalf of the respondents, they did not choose to lead any oral evidence. On the other hand, they got produced one document which came to be marked with consent as exhibit R1.
The Tribunal on considering the oral and the documentary evidence on record held that the accident in question has taken place solely on account of the fault of the rider of the offending motor cycle as such the claimant has established actionable negligence. Further, the Tribunal looking to the evidence of the claimant, the medical officer who has treated him and the documents placed on record awarded a total compensation of Rs. 1,32,000/- with interest at 6% par annum from the data of petition till realisation. It further saddled the liability of payment of compensation on the second respondent-insurer.
The appellant-claimant being aggrieved fey the quantum of compensation it in appeal before this Court
Learned counsel appearing for the appellant claimant submitted that the Tribunal has erred in not awarding commensurate compensation to the claimant under all heads, despite the claimant having placed cliching evidence supported with documents. He further submitted that it has also erred in not awarding any compensation towards loss of amenities, (sic) nourishment and attendant charges toad has not considered the case of the claimant for awarding any compensation towards loss of marriage prospects though she claimed to he an young lady aged About 20 year. Therefore, a case for enhancement is made out.
Bar contra, Learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.
Taking the rival submissions into consideration and the papers that are now made available before me at the time of hearing, the point that arises for my consideration is:
Whether the appellant-claimant has made out a case for enhancement?
Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment taken mad she amount spent are also not in dispute. The claimant has claimed that in the accident she has sustained fracture to her left thigh bone for which she took treatment in the Hospital for one week during which period she also underwent one operation. Her testimony is fortified from the evidence of PW2 Medical officer and also wound certificate Exhibit P5 and the discharge summary Exhibit P7 placed on record. A perusal of the evidence of PW2-Medical officer reveals that the claimant has sustained fracture of Supra Condylor of left femur and three more injuries which are sample in nature. It is also fortified from the wound certificate exhibit P5 and the discharge summary exhibit P7. The evidence of the doctor further reveals that the claimant has permanent functional disability of her left lower limb to an extent of 30% Taking these factors into consideration, the Tribunal has awarded a sum of Rs. 35.000/- towards injury, pain and suffering. The same in the facts and circumstances, in my view is just and proper and does not call for any modification.
But the Tribunal has not considered the case of the claimant for awarding any compensation towards loss of amenities. I have already adverted to the nature and the degree of the injuries sustained by the claimant including the percentage of disability that she has suffered as spoken to by the PW2. These materials on record would clearly indicate that the claimant who is a young lady, aged 20 years has to suffer discomfort and unhappiness in future. Taking the same into consideration, I deem it fit to award a turn of Rs. 20,000/- towards lose, of amenities which has not been considered and awarded by the Tribunal
Further- the Tribunal has awarded a turn of Rs. 40,000/- towards medical expenses relying upon the medical bills which are at exhibit P6 series. The Tribunal has awarded the said sum which is also inclusive of compensation in a sum of Rs. 2,016/- awarded towards conveyance, nourishment and attendant charges. The Tribunal accepting the geniuses of the bills has awarded the said sum towards medical expenses. No grievance was made in respect of the same before this Court, hence, the some does not call for any modification.
Further, the Tribunal has not awarded just compensation towards conveyance, nourishment and attendant charges. The same has to be considered for being awarded to the claimant. The claimant has claimed that aha has sustained fracture of left thigh bone for which she has taken treatment in the Hospital for one week during which period she has also undergone one operation that is also fortified from the evidence of PW2-Medical officer who has treated her that follows that the claimant both during her stay in the Hospital and after the discharge for taking follow up treatment must have spent some considerable amount towards conveyance, nourishment and attendant charges, The accident has taken place on 16.03,2006, taking the same into consideration, I deem it fi to award a sum of Rs. 5,000/- exclusively towards conveyance, nourishment and attendant charges.
Next aspect that dwells upon for consideration is the determination of the income of the claimant, compensation to be awarded towards loss of income during laid-up period and loss of future income the claimant has claimed that she is aged 20 years, working in L.T.Karle Garments factory situated near Madanayakanahalli located on NH4, earning more than Rs. 3,500/- per month. In support of her claim she has produced her salary certificate which is at Exhibit P8. However, mho has not taken steps to examine either the author of exhibit PS or her employer to show that she was being paid the said salary of Rs. 3,500/- per month. In her evidence though she claims that the was working in garment factory, aha has not spelt out what exact work she was undertaking in the garment factory in order So assess her skill to assess the salary that she was being paid. Therefore, under these circumstances, having regard to the age and the date of accident, we can safety take that she would have earned atleast a sum of Rs. 100/- per day, accepting the same, an amount of Rs. 3,000/- that has been determined by that Tribunal per month appears to be just and reasonable and does not call for any interference. The Tribunal baa awarded a turn of Rs. 6,000/- towards loss of incomes during laid-up period at the rate of Rs. 3,000/- per month for two months. In my view having regard to the nature of fracture that the claimant has sustained, taking into account that she it a young lady of 20 years, she could not have attended to her normal work atleast for a period of 4 months for which period she should be compensated toward loss of income during kid-up period, taking the same into consideration, I deem it fit to award & further sum of Rs. 6,000/- in addition to Rs. 6,000/- awarded by the Tribunal towards lose of income during laid-up period,
Next aspect that falls for consideration is the compensation to be awarded towards loss of future income. The claimant has claimed that she is aged 20 years, therefore the proper multiplier that becomes applicable to the facts of the case would be 18 which has boon rightly taken by the Tribunal Her income is determined at Rs. 3,000/- per month. Next factor to be considered is what is the permanent disability that the claimant has suffered on account of the injury sustained. PW2-Medical officer in his evidence stated that the claimant has permanent functional disability to her left lower limb to an extent of 30% and the has permanent disability to an extent of 15% to the whole body. However, the Tribunal has taken the permanent disability at 7% and has awarded a turn of Rs. 46,000/- towards future loss of income Learned counsel for the appellant vehemently submitted since the evidence of PW2 reveals that the claimant has permanent disability to an extent of 15% to the whole body the same has to be taken as permanent disability to the whole body the Tribunal as adverted to above has assessed the disability at 7% However, normally 1/3rd of the functional disability of the lower limb would be taken as permanent disability to the whole body. In this case hawing regard to the nature of the fracture that the claimant has sustained to her left thigh bone, the permanent disability at 7% determined by the Tribunal appears to be just and proper and does not call for any interference. Therefore the amount of Rs. 45,000/- that has been awarded by the Tribunal towards future loss of income, having regard to the factors of age, income and the permanent disability of 7% is just and proper and does not call for any modification
Further the Tribunal hat awarded a turn of Rs. 5,000/- towards fixture medical expenses relying upon the testimony of the PW2-Medical officer. The Medical officer has stated that the claimant would require a sum of Rs. 15,000/- for undergoing future medical treatment. The said future medical expenses is for removal of implants which according to the PW2-Medical officer are stilt in situ. The same does not involve heavy expenditure, Hence, the amount of Rs. 5,000/- awarded towards future medical expenses is also just and proper and does not call for any modification. The claimant is a young lady of 20 years, she has sustained fracture of her left thigh bone. The evidence of PW2-Medical officer reveals that there it slight malunion of fracture. Therefore taking these factors into consideration, I deem it fit to award a sum of Rs. 15,000/- towards loss of marriage prospects. Thus in my view the claimant in all would be entitled to total compensation of Rs. 1,78,000/- with interest at 6% per annum from the date of petition till realisation as against Rs. 1,32,000/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of the compensation is as follows:
Towards pain and suffering
Rs. 35,000/-
Towards Medical expenses
Rs. 40,000/-
Towards conveyance, nourishment and attendant charges
Rs. 05.000/-
Towards loss of income during
Rs. 13,000/-
Towards loss of future income
Rs. 45,000/-
Towards future medical expenses
Rs. 05,000/-
Towards loss of marriage prospect
Rs. 15,000/-
Towards lose of amenities,
Rs. 20,000/-
Total
Rs. 78,000/-
In the result for the FORGOING reasons, I proceed to pass the following:
ORDER
1) Appeal is allowed in part.
2) The impugned judgment and award passed by the Tribunal is modified and the appellant-claimant is awarded a total compensation of Rs. 1,78,000/- with interest at 6% per annum from the date of petition till realisation as against Rs. 1,32,000/- with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal, The enhanced compensation comes to Rs. 46,000/- with interest at 6% per annum from the date of petition till realization.
3) The second respondent Insurer in this appeal shall deposit the entire enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award excluding the interest for a period of 461 days on the enhanced compensation which has occurred on account of delay in filing the appeal
4) On deposit of the enhanced compensation with interest, a sum of Rs. 25,000/- with proportionate interest shall be deposited in the name of the appellant-claimant in any Nationalized/Scheduled Bank for a period of five years and renewable by further period of five years. She is entitled in withdraw the interest accrued on the said deposit periodically. The balance Rs. 21,000/- with proportionate interest is ordered to be released in favor of the appellant claimant.
5) Office to draw the award accordingly.