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Judgment
Mrs. S. Sujatha, J.—The insurer as well as claimant are before this court challenging the Judgment and Order passed by the Motor Accident Claims Tribunal. Bangalore, [''the Tribunal'', for short] in MVC No. 1086/2010.
Briefly stated the facts are that the appellant filed claim petition before the Tribunal seeking compensation for the injuries sustained by him in the motor vehicle accident which occurred on 10.3.2009. It was alleged that the said accident occurred due to the actionable negligence of the rider of the vehicle bearing No. KA-05/HD 5326 while the claimant was riding the said vehicle as a pillion. The insurer of the offending vehicle entered appearance and contested the claim. The Tribunal after evaluating the evidence on record, awarded total compensation of Rs. 2,66,20/- with interest at 6% p.a. Being aggrieved, the insurer is m appeal challenging the impugned Judgment and award on liability as well as quantum, whereas the claimant is seeking enhancement of compensation as the same is inadequate.
Learned counsel appearing for the appellant-insurer assailing the impugned Judgment and award would contend that as per the wound certificate at Ex.P4, it is clearly mentioned that the claimant was shifted to the hospital with CTC Ambulance from the accident spot and was accompanied by his family members, history is mentioned as Injuries said to have occurred on 10.3.2009 due to rider of two wheeler found lying on the road''. Placing much emphasis on this document, learned counsel contends that the claimant himself was the rider of the two wheeler and suffered injuries. It is further submitted that Ex.R2, the police intimation given by the BGS Hospital clearly reflects that the patient was travelling on two wheeler, found lying on the road. The same being reflected at Ex.R-3, Medico-legal register of the BGS Hospital, the Tribunal ought to have considered these documents to appreciate the defence of the insurer that the claimant was the rider of the motorcycle and in order to claim compensation, projected himself as the pillion rider. It is submitted that the Tribunal erred in not appreciating the delay caused in lodging the complaint. As regards the quantum of compensation awarded, it is contended that disability assessed by the Tribunal at 30% is on higher side, not in consonance with the nature and gravity of the injuries sustained by the claimant. It is, thus, contended that the finding of the Tribunal is perverse, much against the material evidence made available on record.
On the other hand, learned counsel appearing for the claimant would contend that the Exs. at P4, R2 and R3 clearly establishes that the claimant was the pillion rider. No substantial evidence was placed on record by the insurer to substantiate the defence that the claimant was not a pillion rider. The learned counsel supports the impugned Judgment and award as far as liability is concerned. However, it is submitted that the quantum of compensation awarded by the Tribunal is meager and disproportionate to the nature and gravity of injuries sustained by the claimant; the Tribunal grossly erred in not appreciating the material evidence in as much the disability sustained by the claimant. Thus, the claimant seeks enhancement of the compensation.
Heard the learned counsel for the parties and perused the material on record. The points that arise for consideration in this appeal are:
i) Whether the Tribunal was justified in construing the claimant as a pillion rider i.e., third party entitled to claim compensation from the owner/insurer of the offending vehicle ?
ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable ?
As regards the first point, it is apt to refer to the relevant portion of the wound certificate, Ex.P4 which reads thus:
" Wounds or injuries found on the person of a male calling himself/Mr. Girish, S/o, Mundswamappa, aged 18 years, an inhabitant of Talaghatpura, Kanakapura Main Road, Bangalore, who was sent with CTC Ambulance from Dodda Aladamara cross, Mysore Road and accompanied by family members report certain injuries said to have been caused on 10.03.2009 and due to rider of two wheeler found lying on road."
Ex.R2 is the police intimation issued by BGS Global hospital dated 10.3.2009 wherein it is mentioned, patient was travelling on two wheeler, found lying on road. Similarly, Ex.R3 discloses that the patient was travelling on two wheeler and lying on the road. It is discerned from the record that the accident in question occurred on 10.3.2009 at 8.30 p.m. Immediately, the claimant was shifted to BGS Global hospital, Kengeri, Bangalore and from there to NIMHANS, where he was treated as an inpatient on two occasions. Ex.P6 is the discharge summary issued by Department of Neuro-surgery, NIMHANS, Bangalore, wherein it is mentioned that "this 20 year old man has presented with history of road traffic accident at 8.30 p.m on 10.3.2009 when patient''s scooter skid and patient who was a pillion rider fell on road. He has lost consciousness-". Ex.P4 establishes that the accident occurred due to rider of two wheeler, the claimant was shifted BGS hospital with CTC ambulance from Dodda Aladamara cross, Mysore road, accompanied by family members. Nowhere it is spelt out that the claimant was riding the two wheeler. Much emphasis is placed by the learned counsel for the insurer on this document to contend that the claimant was the rider of two wheeler which is not acceptable since the same is not reflected so in Ex.P4. Patient travelling on two wheeler cannot be interpreted as patient riding the two wheeler. On the other hand, Ex.P6 clearly specifies that the patient/ claimant was a pillion rider. In the circumstances, it is preposterous to suggest that the claimant was the rider of the offending vehicle.
Yet another argument advanced by the learned counsel for the insurer on the liability aspect is the delay caused in filing the complaint. The Tribunal has extensively examined the evidence on this point and has given a finding that satisfactory explanation was offered for the delay of seven months in lodging the complaint. On this point, it is necessary to unfurl the factual matrix of the case which are as under:
The alleged accident occurred on 10.3.2009, the complaint came to be lodged on 26.10.2009. Ex.P4 is the wound certificate issued by the BGS Global hospital, according to which the claimant had suffered five injuries in the accident said to have occurred on 10.3.2009. Ex.P5 is the motor vehicle Inspector''s report. Ex.R2 is the police intimation issued by the BGS Global hospital, at 10.30 p.m. on 10.3.2009 i.e. date of accident. It is manifestly clear that within two hours from the time of the accident, police intimation was issued by the hospital authorities. The claimant was referred to NIMHANS where he undertook treatment for nearly 19 days, on two occasions. It is the version of the claimant that due to the medical treatment and the follow-up treatment, he was not able to rush to the police station to lodge a complaint, moreover, being oblivious of the legal procedures. It is also the version of the claimant that when he approached the police authorities after knowing the intricacies of legal aspects, the police declined to register the case on account of delay. As such, he was compelled to file a private complaint before the Magistrate and got registered the complaint before the jurisdictional police.
These factual aspects not being rebutted by the insurer while leading any evidence to the contrary, delay caused in lodging the complaint requires to be condoned, claim cannot be suspected or rejected on the ground of delay. It is well established principles of law that the courts in the process of orientation of justice cannot dismiss the claim on hyper technicalities. The aim of the courts is to render justice. A pragmatic approach has to be taken by the courts while considering these aspects and the claim petition cannot be rejected on mere delay/suspicion. The content;on of the learned counsel for the insurer on this point also does not merit consideration.
As regards the second point is concerned, it is evident from the records that the claimant had suffered the following injuries as per Ex.P4:
Bleeding from mouth
loss of teeth
laceration over head
laceration of lower lip
abrasion on right side of neck
Ex.P6 discharge summary issued by NIMHANS hospital speaks that the claimant had right frontotempoparietal acute subdural haematoma, left brachial plexus injury. Ex.P7 is another discharge summary which shows that the claimant had suffered acute SDH, underwent right FTP craniotomy and evacuation and was noticed to have left UL weakness since then. The doctor who was examined as PW-3, in his testimony, had assessed the disability of the injured to the whole body at 40%. Considering these material evidence, the Tribunal assessed the disability of the whole body at 30% as against 40% assessed by PW-3 which cannot be found fault with.
It is discerned that the claimant was working as a cleaner, aged about 13 years as per the wound certificate, though contended by the claimant as 21 years. In the absence of any documents placed on record to establish the age of the injured, the Tribunal determined the age as 18 years and employed the multiplier of 18 to reckon the loss of income on account of disability. It is imperative that the monthly income determined by the Tribunal at Rs. 3,000/-necessarily calls for substantial enhancement in the light of the standard determination of monthly income now adopted by this court in identical circumstances i.e. at Rs. 5,000/- p.m. Applying the same, loss of income on account of disability works out to Rs. 3,24,000/- (Rs.5,000/- x 12 x 18 x 30% ). In view of the redetermination of the income at Rs. 5,000/-, the claimant shall be entitled to a sum of Rs. 15,000/-towards loss of earning during the laid up period; a sum of Rs. 10000/- would be reasonable towards food, nourishment, attendant and conveyance charges.
Thus, the total compensation awarded by the Tribunal is modified as under;
Pain & suffering -
35,000-00
Medical expenses -
19,840-00
Attendant charges, conveyance -
10,000-00
Loss of earning during The period of treatment -
15,000-00
Loss of income on account of disability (5000 x 12 x 18 x 30%) -
3,24,000-00
Total
Rs.4,03,840-00
Thus, the compensation awarded by the Tribunal is modified to Rs. 4,03,840/- as against Rs. 2,66,240/-. The award amount shall carry interest at 6% per annum from the date of the petition till the realization.
In the result, the appeal filed by the insurer stands dismissed and the appeal field by the claimant is allowed to the extent indicated above.
The award amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.