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Judgment
S. Abdul Nazeer, J.—These two appeals are directed against the judgment and award in MVC No. 3923/2011 dated 27.2.2013 on the file of the IX Addl. Senior Civil Judge, Small Causes Court at Bangalore. MFA No. 4479/13 is filed by the insurer of the offending vehicle by contending that the Tribunal was not justified in fastening the liability entirely on the insurance company. The other connected appeal MFA No. 3727/2013 has been filed by the claimant seeking enhancement of compensation.
Chikkasiddaiah filed the above claim petition seeking compensation on account of the injuries sustained by him in a motor vehicle accident occurred on 1.4.2011. It is his case that on 1.4.2011 at about 9.15 p.m. he was proceeding in his autorickshaw bearing registration No. KA-05 AA-6048 slowly along with passengers on 60 ft. Road, 1st Main Road, Koramangala from West to East. When he reached opposite to Santro Driving School, the driver of the offending car bearing registration No. KA-01-MF-4697 driven in a rash and negligent manner from opposite side dashed against autorickshaw. Due to the impact, autorickshaw was toppled and he suffered severe head injury and injuries to the hand and leg. Immediately, he was shifted to St. John''s Medical College Hospital. In the said hospital, x-ray and CT scan were taken and as the claimant had suffered severe head injury, he was shifted to NIMHANS Hospital and then to Popular Trauma and ICU care wherein he was admitted as an inpatient from 2.4.2011 to 16.4.2011. After some time, he was discharged from the said hospital and was shifted to Government Hospital, Mandya. In the said hospital, he took treatment from 16.4.2011 to 27.6.2011. He was under regular follow up treatment. Because of the injuries sustained by him, he could not recover completely. He was suffering from permanent disability and cannot work as an autorickshaw driver and was deprived of his earnings. In all, he has claimed compensation of Rs. 15,00,000/-.
The insurer has entered appearance in the said case and has filed the written statement opposing the claim petition.
On the basis of the pleadings, the Tribunal has framed the following issues:
Whether the petitioner proves that the accident occurred due to rash and negligent driving of the Car bearing Reg. No. KA-01-MF-4697 by its driver and in the said accident, the Petitioner sustained injuries?
Whether the Petitioner is entitled for compensation? If so, how much and from whom?
What Order or Award?
The claimant got himself examined as PW1 and two witnesses were examined as PW2 and PW3. In all, 21 documents were marked in their evidence at Ex. P1 to Ex. P21. The insurer did not lead any evidence. The insurance policy was marked by consent of the parties at Ex. R1. The Tribunal on appreciation of the materials on record has answered issue No. 1 in the affirmative holding that the driver of the car was responsible for the accident and awarded total compensation of Rs. 5,56,200/- with interest at 6% p.a. from the date of the petition till the date of deposit.
Learned counsel for the insurer argues that the Tribunal was not justified in holding that the driver of the car alone was responsible for the accident. The autorickshaw driver was also negligent to some extent. Therefore, the Tribunal ought to have apportioned the liability. It is his further contention that the Tribunal was not justified in granting compensation towards medical expenses in a sum of Rs. 2,00,000/-. It is argued that some of the medical bills do not contain the name of the claimant. Those bills should have been excluded while calculating the medical expenses.
On the other hand, learned counsel appearing for the claimant submits that accident had occurred solely on account of rash and negligent driving of the offending car by its driver. He has taken me through the evidence of the driver so also spot sketch in this connection. It is argued that the insurer has not let in any evidence in order to establish the contributory negligence. In this connection, he has relied on the decision of the Full Bench of this Court in North East Karnataka Road Transport Corporation Vs. Vijayalaxmi and Others, .
It is his further submission that the claimant had sustained grievous injuries in the accident both to his head and other parts of the body. He was admitted atleast for 81 days in different hospitals. He has taken me through the evidence of the Doctor. It is further argued that having regard to the injuries sustained by him, he was not in a position to drive the autorickshaw and earn his livelihood. Therefore, the Tribunal ought to have determined the functional disability of the claimant and ought to have awarded suitable compensation.
It is further argued that before the accident, the claimant was earning more than Rs. 8,000/- per month. The Tribunal has taken his income at Rs. 4,000/- per month for the purpose of computation of loss of future earning capacity. The award of compensation towards pain and suffering; loss of earning during the laid up period; food, conveyance, etc.; loss of amenities and loss of future earning capacity is also on the lower side.
Having regard to the contentions urged, the first question for consideration is whether the Tribunal is right in holding that the driver of the car is entirely responsible for the accident?
The claimant in his examination-in-chief has stated that he was driving the autorickshaw slowly and cautiously on the left side of the road. When he reached near Santro Driving School, the offending car driven by its driver in a rash and negligent manner dashed against the autorickshaw. A complaint was lodged against the driver of the car on the basis of which FIR was registered against him. No complaint has been lodged against the claimant. The claimant has produced the documents such as FIR, complaint, hand sketch, spot panchanama, wound certificate MVI report and charge sheet, which are marked at Ex. P1 to Ex. P7. Though he was cross-examined at length, nothing worthwhile has been elicited except his statement that the accident had occurred in the middle of the road as per the sketch. The contents of the hand sketch at Ex. P3 are not disputed. The sketch would clearly indicate that the autorickshaw was coming on the extreme left side of the road. It was on the proper side of the road. The car coming from the opposite direction was driven from the left side of the road and after crossing the median, it dashed against the autorickshaw. Added to this, it is not in dispute that the driver of the car had admitted his guilt before the Criminal Court and penalty has been paid, which is clear from Ex. P15, certified copy of the order sheet in C.C. No. 505/2011.
In order to establish that the autorickshaw driver was also responsible for the accident, the Insurance Company has not let in evidence. In Vijayalakshmi''s case (supra), the Full Bench of this Court has held that before the Tribunal is called upon the decide the question of contributory negligence, the plea that is available to the driver and conductor of the bus/driver, conductor and owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence. In the instant case, no such effort has been made by the Insurance Company. Having re-assessed the entire evidence on record, I am of the view that the Tribunal is right in holding that the driver of the car alone was responsible for the accident.
That brings me to the next question as to the adequacy of the compensation determined by the Tribunal?
The contention of the learned Counsel for the Insurance Company is that the Tribunal has erred in awarding medical expenses in terms of the bills. It is true that two bills do not contain the name of the claimant. However, if all the bills are examined together and the medicines prescribed and purchased are compared, there cannot be any doubt that the claimant had purchased those medicines. I am not inclined to accept the arguments of the learned Counsel for the insurer that those medical bills do not pertain to the claimant.
The claimant had sustained serious injuries in the accident. The Doctor on the basis of the medical reports and x-rays has given the details of the injuries sustained by the claimant. It is clear from the evidence that after the accident, he was taken to St. John''s hospital and then to Nimhans where a coma scores of 6/15 was recorded. The CT scan done there reveals evidence of multiple contusions (blood clots within the brain) in the left frontal, left thalamus and left caudate with fracture of left parietal bone and edema suggestive of severe diffuse axonal injury. He was taken to popular trauma and ICU care and was an inpatient from 2.4.2011 to 16.4.2011. A tracheostomy was done and he had been ventilated. He was discharged on request from there and at that time, his coma score remained 5T/15 suggesting severe head injury. He was shifted to Mandya Institute of Medical Sciences Teaching Hospital, Mandya where he remained as an inpatient from 16.4.2011 to 20.6.2011. The claimant had come to him once again on 14.9.2012 for assessment of the brain related disability. He found that the claimant was apparently used to work as an auto driver and that he had not been able to get back to his work. He was not as sharp as before mentally and his voice was low and speech low and unclear. The detailed clinical and neurological examination revealed a conscious but dull, patient slow in response, with dysarthric speech and okay comprehension. Hence, a diagnosis of post head injury sequelae and deficits was made and the claimant was investigated. He has assessed the total disability to the whole body at 44.16%. However, the Tribunal for the purpose of assessment of loss of future earning capacity has assessed 30% permanent disability to the whole body.
As stated above, the claimant was an autorickshaw driver. He was aged 22 years at the time of the accident. It is clear from the evidence on record that he may not be able to drive the autorickshaw in future. It is well established that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his avocation profession and nature of work before the accident, as also his age. The third steps is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
In the instant case, the claimant was an autorickshaw driver. It is clear from the evidence on record that having regard to the permanent disability sustained by him, he is not in a position to drive the autorickshaw. He was aged 22 years. Taking a over all view of the matter, it is just and proper to assess the functional disability sustained by the claimant at 50%. Though the claimant contends that he was earning Rs. 8,000/- per month, he has not substantiated the same. He was driving the autorickshaw at Bangalore. The accident had occurred on 1.4.2011. It is just and proper to notionally fix his income at Rs. 200/- per day (Rs. 6,000/- per month). Since he was aged 22 years, the multiplier applicable to the case is 18. By taking his income at Rs. 6,000/- per month with the application of multiplier 18 and 50% functional disability, the compensation payable towards loss of future earning comes to Rs. 648,000/-.
Having regard to the injuries sustained by him on account of the accident and the permanent disability, he is not able to enjoy his life as before. I am of the view that it is just and proper to award a sum of Rs. 50,000/- towards pain and suffering and Rs. 1 lakh towards loss of amenities. He was hospitalized for 81 days A sum of Rs. 50,000/- is awarded towards conveyance, food and nourishment. The medical expenses awarded by the Tribunal in a sum of Rs. 2,00,000/- is just and reasonable.
Thus, the claimant is entitled for compensation as under:
The Tribunal has awarded a sum of Rs. 5,56,000/- which has to be deducted from the aforesaid amount and the balance of compensation payable to the claimant is Rs. 4,92,000/-. The said sum of Rs. 4,92,000/- shall carry interest at 6% per annum. In the light of the above discussions, I pass the following:
ORDER
(i) The appeal filed by the Insurance Company in MFA No. 4479/2013 is dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.
(ii) The appeal filed by the claimant in MFA No. 3727/2013 succeeds and it is accordingly allowed in part. The Insurance company is directed to deposit a sum of Rs. 4,92,000/- with interest at 6% per annum from the date of the petition till the date of deposit. within a period of eight weeks from the date of receipt of a copy of this order.
(iii) Out of the enhanced amount, a sum of Rs. 4,00,000/- shall be kept in a fixed deposit in the name of the claimant for a period of 10 years in a Nationalised Bank. The claimant is permitted to withdraw the interest annually. The claimant is permitted to withdraw the balance of the amount. No costs.