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Judgment
Hon''ble Dr. Justice K. Bhakthavatsala
Learned counsel for the appellant submits that though the claimant sustained permanent disablement to the extent of 30% with reference to the right leg, the Tribunal has not awarded adequate compensation towards the relevant heads. He also submits that the Tribunal erred in fixing contributory negligence on the part of the claimant to the extent of 50%. He prays for enhancement of compensation fixing total negligence on the part of the driver of the van in question.
In spite of service of notice on Respondent No. 3/ Insurance Company, there is no representation.
Perused the L.C.R.
It is the case of the claimant that he was 47 years old, a Stenographer in S.P. office at Tumkur and earning Rs. 8,500/- p.m., and he sustained grievous injuries in the motor accident that occurred on 05.10.2005. It is pleaded that on 05.10.2005, the claimant was proceeding on his TVS Suzuki Motor-Cycle bearing Registration No. KA-20/A-4332 from his house towards S.P. office slowly on the left-side of the road and while proceeding in front of Helepad Circle at Shimoga-Sagar Road, at about 4.00 p.m., van bearing No. KA-20/A-4332 belonging to the Respondent No. 1, driven by Respondent No. 2 came on the wrong side in a rash and negligent manner in high speed from Kuvempu road side and dashed against the motor-cycle, as a result of which, he fell down and sustained grievous injuries. He was admitted to Mc. Gann Hospital at Shimoga, where he was treated as inpatient. Thereafter, he was shifted to Kasturba Hospital at Manipal. He filed a claim petition against owner, driver and insurer of the van in question, claiming compensation of Rs. 5,15,000/- towards personal injuries and damage caused to the motor-cycle. The Respondents 1 and 2 entered appearance and filed their joint written statement denying the averments of the claim petition. It is pleaded that the claimant without observing the traffic rules, suddenly crossed the road to reach S.P office and fell on the road and sustained injuries. Respondent No. 2/driver of the mini lorry had valid driving licence to drive and the vehicle was insured with the Respondent No. 3 and therefore, they are not liable to pay compensation to the claimant. Respondent No. 3/Insurance Company also entered appearance and filed written statement denying the averments of the claim petition and sought for dismissal of the same. The Tribunal framed as many as four issues. In support of the case of the claimant, he got himself examined as P.W. 1 besides examining Zulfiquer Ali @ Babu and Dr. Shyamasundar Bhat. N as P.Ws. 2 and 3 and got marked Exs. P.1 to P. 30. The respondents have not adduced rebuttal evidence. The Insurance Company has got marked copy of Insurance policy as Ex. R.1. The Tribunal has answered Issue No. 1 on the point of negligence partly in the affirmative holding that the width of the road was 50'' and if the claimant was really coming in left side of the road, there was no reason for the 2nd Respondent to dash against the vehicle of the claimant coming from the opposite side. The Tribunal has awarded compensation of Rs. 1,87,000/-. The percentage of contributory negligence is not mentioned in Para No. 9 dealing with issue on the point of negligence. But only in Para No. 17, it is held that Respondent No. 3/Insurance Company is liable to pay 50% of the compensation amount of Rs. 1,87,000/-, which comes to Rs. 93,500/-. The Tribunal has awarded interest at the rate of 6% p.a., from the date of petition till realization, in view of the grounds urged by the appellant/claimant, I formulate the following points for my consideration:
i) Whether the Tribunal is justified in fixing contributory negligence on the part of the claimant to the extent of 50%?
ii) Whether the Tribunal has awarded adequate compensation?
Point No. 1:
Today, learned counsel for the appellant has filed a memo along with certified copy of the ordersheet, plea and rough sketch, charge sheet in C.C. No. 1329/2006 on the file of JMFC, II Court at Shimoga, stating that the accused, viz., the Respondent No. 2/driver before the Tribunal pleaded guilty for the offences under Sections 279 and 338 of IPC and paid fine amount of Rs. 2,000/- on 24.08.2006. Since the driver of the vehicle in question pleaded guilty and paid fine and has not adduced rebuttal evidence, the Tribunal erred in fixing contributory negligence on the part of the claimant and Issue No. 1 is answered in the affirmative holding that the accident occurred solely due to rash and negligent driving of the van by the Respondent No. 2/driver. Accordingly, I answer Issue No. 1 in the affirmative.
Point No. 2:
As per Ex. P. 6/Wound Certificate, the claimant sustained two deep lacerated wound over the right knee with crepitus and profused bleeding. Medical Officer has opined that the injuries are grievous in nature. Ex. P.7 is the treatment certificate given by Kasturba Hospital. The Medical Officer at Kasturba Hospital noticed the following injuries:
i) 10 cm. sutured laceration over the right knee joint;
ii) Comminuted fracture right patella (open);
iii) 2 cm. abrasion over the dorsum of left foot;
iv) 4 cm. sutured laceration over the forehead.
Injury No. 2 is described as grievous in nature. The claimant was admitted to Kasturba Hospital on 05.10.2005. On 06.10.2005. emergency wound debridement under spinal anesthesia was done. Postoperatively, limb was immobilized in POP slab. On 12th post-operative day, long leg cast was applied with the knee in neutral position and discharged on 13.10.2005 with medical advice. The claimant was readmitted to the said hospital on 02.11.2005 for cast removal and knee mobilization by physiotherapy. Claimant was discharged on 14.11.2005 with medical advice to come after two weeks for follow up treatment. Ex. P.9 is also a treatment certificate issued by Sri. Basaveshwara Hospital at Shimoga, stating that the claimant sustained injuries in the road traffic accident on 05.10.2005 and he was operated for the same on 06.10.2005 at Kasturba Hospital at Manipal. It is further stated that the claimant has taken physiotherapy treatment in Basaveshwara Hospital from 01.12.2005 to 05.02.2006 and a sum of Rs. 4,550/- was charged for the treatment. Exs. P.11 to P. 16 are the taxi vouchers for travelling from Shimoga to Mandya at the rate of Rs. 1,900/- per one round trip on five occasions and at the rate of Rs. 1,650/- for two trips. Ex. P.17 and 18 are the bills in relation to purchasing spare parts and repair charges for repairing the motor-cycle. Exs. P.19 to 23 are the medical bills. As per Ex. P.24 ''B'' Register) the claimant is owner of the motor-cycle. Ex. P.25 is the letter addressed by Kasturba Hospital, Manipal to the claimant intimating that the inpatient bill charges amounting to Rs. 25,255/- and Rs. 1,863/- under the Arogya Bhagya Yojana (Medi Claim Scheme), but a sum of Rs. 5,115/- was disallowed by the Insurance Company. Therefore, the claimant was directed to clear the dues of Rs. 5,115/-. Ex.P. 16 is the Driving Licence of the claimant. Ex. P. 30 is the Disability Certificate issued by Dr. Shyamasunder Bhat (P.W.3). According to Ex. P. 30, the claimant has got permanent disablement to the extent of 30% with reference to right lower limb.
The Tribunal has awarded compensation in favour of the claimant as under;
(In Rs. )
i) Pain and suffering
1,00,000-00
ii) Medical expenses
10,000-00
iii) Future medical expenses
5,000-00
iv) Disability
50,000-00
v) Loss of income during the period of treatment
16,000-00
vi) Travelling expenses
3,000-00
vii) Attendant charges
3,000-00
Total
1,87,000-00
The Tribunal has not awarded compensation towards damage caused to the motor-cycle on the ground that the claimant himself contributed to the accident and that he should have claimed compensation towards damage of the vehicle from the insurer of the vehicle. The claimant is the owner of the vehicle, but he has not produced copy of insurance policy to show that the vehicle had only Act Policy. Under such circumstances, the Tribunal is not justified in not awarding compensation towards vehicle repair.
Ex. P.8 is the salary certificate dated 16.10.2008 issued by S.P. Office, Shimoga. Gross salary for the month of October 2005 is Rs. 8,193/-. Ex. P. 10 is the leave certificate issued by the Superintendent of Police, Shimoga, certifying that he was on leave from 05.10.2005 to 04.12.2005, i.e., for a period of 61 days. Therefore, the Tribunal has awarded a sum of Rs. 16,000/-towards loss of earning during the period of treatment. If a sum of Rs. 100/- paid towards professional tax is deducted out of gross salary of Rs. 8,193/-, net salary comes to Rs. 8,093 p.m. Thus, earnings per day comes to 7269.76 and loss of earning for 61 days comes to Rs. 16,455-36. The Tribunal has not awarded compensation towards loss of amenities, but awarded huge amount of Rs. 1,00,000/- towards pain and suffering. Taking into consideration that claimant underwent surgery and it is a case of comminuted fracture of right patella, the claimant is entitled for reasonable compensation towards the relevant heads. Since the claimant continues to be in service, there is no loss of future earning. The Tribunal has awarded Rs. 50,000/- towards disability. The claimant has travelled from Shimoga to Manipal and produced taxi bills at Exs. p. 11 to 16, in all amounting to Rs. 10,900/-. Though the claimant has not examined the Taxi Driver, on account of nature of injuries sustained and follow up treatment in Manipal Hospital, those bills can be accepted and a sum of Rs. 10,900/ can be awarded towards taxi charges.
In my view, the claimant is entitled for compensation as under:
(In Rs. )
i) Pain and suffering
40,000-00
ii) Loss of earning during the period of treatment and rest ( Rs. 269,76 x 61)
16,455-00
iii) Medical expenses
10,000-00
iv) Future medical expenses
5,000-00
v) Attendant, conveyance and special diet expenses
10,000-00
vi) Taxi charges
10,900-00
vii) loss of amenities
1,00,000-00
Total
1,92,355-00
Accordingly, Point No. 2 is answered in favour of the appellant/claimant.
in the result, the appeal is partly allowed, holding that the accident occurred solely due to rash and negligent driving of the van by its driver and in that accident, the claimant sustained grievous injuries. Awarded compensation of Rs. 1,92,355/- along with costs and interest at the rate of 6% pa., from the date of petition till realization as against Respondents 1 to 3, whose liability is joint and several. Accordingly, the impugned Judgment and Award are modified.
Respondent No. 3/Insurance Company is directed to deposit the balance compensation amount along with costs and interest @ 6% p.a., with the Tribunal within three months from today.