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Judgment
S. Abdul Nazeer, J.—This appeal by the claimant is directed against the judgment and award in MVC No. 438/2006 dated 31.08.2010 on the file of the Court of Senior Civil Judge & Addl. Motor Vehicle Accidents Claims Tribunal at Kundapura, whereby the Court below has awarded total compensation of Rs. 1,12,668/- with interest at 6% per annum from the date of petition till the date of deposit. Learned counsel for the appellant would contend that the order of the Court below holding the claimant as responsible for the accident to an extent of 30% is contrary to the materials on record. It is argued that driver of the offending vehicle alone is responsible for the accident. After determination of the compensation, question of deducting 30% of the compensation towards contributory negligence is uncalled for.
It is further contended that the claimant was working as a driver. He was aged about 25 years at the time of accident. He was earning Rs. 300/- per day. However, Court below has taken his income at Rs. 100/- per day for the purpose of computation of loss of future earning capacity. It is argued that the claimant was hospitalized for 15 days. The compensation awarded by the Court below under other heads is on the lower side.
On the other hand, learned counsel appearing for the respondent-insurance company submits that on appreciation of the materials on record, the Court below has rightly held that the claimant was also responsible for the accident to an extent of 30%. It is further argued that the Court below was not justified in awarding a sum of Rs. 30,000/- towards loss of future prospects.
I have carefully considered the arguments of the learned counsel made at the Bar and perused the materials placed on record.
Having regard to the contentions urged, the 1st question for consideration is whether the Court below is justified in holding that the claimant was responsible for the accident to an extent of 30%?
The claimant was examined as PW-1. In his evidence he has stated that he was driving the vehicle Maruthi Omni slowly on the right side of National High Way-17. He was going from Honnawara towards Udupi. Offending lorry was coming from the opposite direction, driven by its driver in a rash and negligent manner and dashed against the Omni car driven by him. Respondents have not let in any oral evidence. On the basis of the complaint, the police have investigated the case and filed charge sheet against the driver of the lorry. The Spot sketch at Ex. P4 shows that the claimant was driving his Omni car from Kundapura towards Udupi on the left side of the road after the median. The offending lorry was driven from Udupi towards Kundapura. The lorry had crossed the median and dashed against the Omni Car. These documents coupled with the oral evidence would clearly indicate that the claimant was driving his Omni car in its proper lane and offending lorry driven by its driver from the opposite direction, crossed the median and dashed against the Omni car. Thus, it is clear that the claimant was not responsible for the accident in any manner. It is not the case of the respondent-insurance company that the claimant was not holding valid driving licence. The Court below without appreciating these documents in its proper perspective has held that the claimant was also responsible for the accident to an extent of 30%. The finding of the Court below that the claimant was responsible for the accident to an extent of 30% is hereby set aside and I hold that driver of the offending lorry alone is responsible for the accident.
That brings me to the next question as to whether the compensation awarded by the tribunal is adequate?
The accident had occurred on 14.11.2005. The claimant was aged 25 years at the time of accident. Though, the claimant contends that he was earning Rs. 300/- per day, no materials have been produced in support of the said contention. Having regard to the facts and circumstances of the case, it is just and proper to notionally fix his income at Rs. 4,000/- per month. The Court below has rightly assessed the permanent disability to the whole body at 8%. By taking his income at Rs. 4,000/- per month, with the application of multiplier 18 and 8% permanent disability to the whole body, the compensation payable towards loss of future earning capacity comes to Rs. 69,120/-.
The claimant was hospitalized for 15 days. He has spent substantial amount towards medical expenses. The Court below has rightly awarded a sum of Rs. 35,000/- towards pain and suffering. He is entitled for a sum of Rs. 20,000/- (5 months earning) towards loss of income during laid up period. He is also entitled for a sum of Rs. 15,000/- towards loss of amenities. Medical expenses awarded by the Court below in a sum of Rs. 34,100/- is just and reasonable and a sum of Rs. 16,000/- towards attendant, food, nourishment and conveyance charges etc., is proper. However, the claimant is not entitled for a sum of Rs. 30,000/- towards future prospects as ordered by the Court below.
Thus, the compensation payable to the claimant is reassessed as under:
The Court below has awarded total compensation of Rs. 1,12,668/- which has to be deducted from the aforesaid sum and the balance compensation payable to the claimant is Rs. 76,552/-. In the result, the appeal succeeds and it is accordingly allowed in part. The respondent-insurance company is directed to deposit compensation in a sum of Rs. 76,552/- with interest at 6% per annum from the date of petition till the date of deposit. However, the claimant is not entitled for interest for the delayed period of 321 days as per the order dated 14.06.2013 on I.A. 1/2011. The deposit as above shall be made within a period of six weeks from the date of receipt of copy of this order. The claimant is permitted to withdraw the said amount on its deposit. No costs.