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Judgment
H.S. Kempanna, J.—This appeal by the claimant is directed against the impugned judgment, and award dated 14.8.2008 passed in MVC. No. 2094/2007 by the VIII Addl. Judge, Court of Small Causes, Member, MACT-V, Bangalore, seeking for enhancement of compensation in respect of the injuries sustained by the claimant in a motor accident.
The facts in brief are:
The Appellant-Claimant filed claim petition before the Tribunal seeking compensation in a sum of Rs. . 5,00,000/- against the Respondents on account of the bodily injuries which he sustained in a motor accident that took place on 21.12.2006 at about 9.15 a.m. near Suradevanapura gate involving the Scorpio vehicle bearing Regn. No. KA-05-MC-4714 owned by the second Respondent and insured with the first Respondent at the relevant point of time. In the impugned accident, he sustained grievous injuries for which he took treatment in the hospital including M.S. Ramaiah hospital at Bangalore for which he spent huge amount. Despite the same, he is not completely cured of his injuries as such he is unable to carry on his avocation as photographer which has resulted in loss of income. Hence, he prayed for grant of compensation from the Respondents.
After notice, the second Respondent-owner remained absent. Hence, he was placed exparte. Respondent No. 1-insurer contested the claim made by the Petitioner. They contended among other things that the accident in question did not taken place due to the fault of the driver of the offending car, on the other hand, it took place due to the negligence of the claimant himself in riding the motor cycle. It is their further case that the driver did not possess valid driving licence to drive the vehicle and as such, there is breach of terms and conditions of the policy. Further, they also denied the age, occupation, income, injuries sustained, treatment taken and the amount spent for the same. Accordingly, they sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal in all framed three issues.
The claimant in support of his case got himself examined as PW1 and the doctor who had treated him as PW2. He produced 14 documents which came to be marked as exhibits P1 to P14.
On behalf of the Respondents they did not choose to lead any oral evidence nor they got marked any documents in support of their case.
The tribunal 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 driver of the offending car and as such the claimant has established actionable negligence. Further, the tribunal looking to the evidence of the claimant and the doctor PW2, the wound certificate-Ex.P5 and discharge summary-Ex.P6 awarded a total compensation of Rs. . 2,24,000/- with interest at 6% p.a. from the date of the petition till realisation under various heads. It further saddled the liability of payment of compensation on the first Respondent-insurer.
The Appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.
Learned Counsel appearing for the Appellant-claimant submitted that the Tribunal has erred in not awarding just and reasonable compensation to the Appellant/claimant towards loss of income during laid-up period and further it has not awarded any compensation towards loss of future income and marriage prospects. Hence, a case for enhancement is made out. However, he did not make any grievance in respect of the compensation awarded to the claimant under other heads.
Per contra. Learned Counsel appearing for the con testing-insurer supported the impugned judgment and award passed by the Tribunal.
Taking the rival submissions into consideration and the papers that are made available, the point that arises for my consideration is:
Whether the Appellant-claimant has made out a case for enhancement?
The facts are not in dispute. The claimant having met with accident, injuries sustained, treatment that he has taken and the amount spent are not in dispute. The claimant claims that, he is a photographer and a videographer by profession. He has claimed that he was earning Rs. . 8,000/- p.m., the Tribunal on considering the material before it has determined the income per month at Rs. . 4,000/-. The same in the facts and circumstance does not call for any interference. The Tribunal having determined his income at Rs. . 4,000/- p.m. has awarded a sum of Rs. . 16,000/- towards loss of income during laid-up period taking into consideration that the claimant could not have attended to his work for a period of four months. The evidence on record reveals that the claimant has sustained head injury and also fracture of both bones of his right leg. He is a photographer by profession. Taking these aspects into consideration the claimant could not have attended to his normal work for six months and not four months as determined by the Tribunal. Therefore, the claimant is entitled to further sum of Rs. . 8,000/- towards loss of income for a period of two more months apart from what has been awarded by the Tribunal. Thus, the claimant is awarded a sum of Rs. . 24,000/- in all towards loss of income during laid-up period at the rate of Rs. 4,000/- per month for six months.
Though the counsel for the Appellant vehemently submitted that the tribunal has not considered his case for awarding future loss of income, in view of the evidence of PW2-medical officer which reveals that he has permanent disability to the extent of 5% which is negligible, he is not entitled to any compensation under the head of ''future loss of income''. I have taken this view taking into consideration the compensation that has been awarded by the Tribunal under other heads which will meet the ends of justice.
Further, no compensation is awarded under the head loss of marriage prospects. The Claimant claims to be a photographer/videographer by profession aged about 23 years. The accident has taken place on 21.12.2006. Taking these factors into consideration, he is entitled to a sum of Rs. . 10,000/- towards loss of marriage prospects.
Thus, in all the Appellant/claimant is entitled to total compensation of Rs. . 2,42,000/- with interest at 6; p.a. from the date of the petition till realisation as against Rs. . 2,24,000/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of compensation is as follows:
Towards pain and sufferings Rs. . 50,000/-
Towards Medical expenses. Conveyance, nourishing food and attendant charges Rs. . 98,000/-
Towards loss of income during laid up period Rs. . 24,000/-
Towards loss of amenities Rs. . 50.000/-
Towards future medical expenses Rs. . 10,000/-
Towards loss of marriage prospects Rs. . 10,000/-
Total Rs. . 2,42,000/-
In the result for the foregoing reasons, I proceed to pass the following:
ORDER
1) Appeal is allowed in part.
2) The impugned judgment and award of the Tribunal is modified and the Appellant is awarded a total compensation of Rs. . 2,42,000/- with interest at 6% per annum from the date of petition till realisation as against Rs. . 2,24,000/-with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. . 18,000/- with interest at 6% per annum from the date of petition till realisation.
3) The first Respondent herein-Insurer shall deposit the entire enhanced compensation of Rs. . 18,000/- with interest at 6% per annum from the date of petition till realisation before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award.
4) On deposit the enhanced compensation with interest, is ordered to be released in favour of the Appellant/claimant.
Office to draw the award accordingly.