Rama vs Rafiq and Others

P.D. Waingankar, J.—The appeal and cross objections are arising out of the judgment and award dated 24.1.2008 in MVC No. 1509/2004 on the file of FTC - III and Addl. MACT, Belgaum.

The facts in brief which gave rise to the appeal and cross objection are as under:

"On 12.11.2001, the claimant Rama Mahadev Halgekar was proceeding on a motorcycle No. CRW-1394 as a pillion rider from Basavan-kudachi towards Belgaum. At about 7.00 p.m. when the motorcycle reached near Mahaveer Rice Mill, a Bajaj M-80 Scooter belonging to the 1st respondent Rafiq and insured by the 2nd respondent National Insurance Company Ltd., came in a rash and negligent manner from opposite direction and dashed against the motorcycle wherein the claimant was proceeding as a pillion rider. Due to the impact, the claimant sustained grievous injuries for which he was treated as inpatient in District Hospital, Belgaum. He spent considerable amount for his treatment, he lost his earnings and also suffered disability. Claiming compensation from the owner and the insure of Bajaj M-80 Scooter, he filed a claim petition under Section 166 of the MV Act." 3. The claim petition was opposed by the Insurer of Bajaj M-80 Scooter. It came up for consideration before the Tribunal before whom the claimant got himself examined as P.W.1, Dr. S.R. Angadi as P.W.2 and one Basawant M. Halgekar the rider of the motorcycle as P.W.3 and Basavant Koluchi as P.W.4, apart from marking as many as 11 documents. The Insurance Company on the other hand marked the policy as Ex. R1. The Tribunal upon appreciation of evidence, recorded a finding that the accident and the injuries suffered by the claimant were due to negligence of the rider of Bajaj M-80 - Scooter and thereby, the Tribunal has awarded a total compensation of Rs. 25,000/- by the impugned judgment and award.

Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant preferred MFA No. 4473/2008. Whereas, after a delay of 1902 days the Insurance Company filed MFA Crob No. 100185/2014 along with an application for condonation of delay and another application for production of additional documents contending that injuries sustained by the claimant were not in the accident involving in the Bajaj M-80 Scooter belonging to the 1st respondent. On the other hand, the claimant sustained injuries on account of fall from the motorcycle as he was under the influence of liquor.

I have heard the learned counsel for the claimant and the insurance company. Perused the records, the judgment and award passed by the Tribunal and also the additional document sought to be produced by the Insurance Company.

The following points would arise for my determination:

"1. Whether the finding recorded by the Tribunal that the accident occurred on account of negligence of the rider of the Bajaj M 80 Scooter is proper?

Whether the compensation awarded by the Tribunal is just and reasonable?"

It is evident form the judgment and award that the claimant got himself examined as P.W. 1 apart from examining the owner cum rider of the motorcycle wherein he was proceeding as a pillion rider as P.W.3. On behalf of the claimant FIR, scene of offence panchanama, charge sheet were produced and marked as Ex. P1, P2 and P4 respectively. These documents disclose not only the involvement of the Bajaj Scooter but also that the negligence on the part of the rider of the Bajaj Scooter for the accident and the resultant injuries sustained by the claimant. On behalf of the Insurance Company no witness was examined. The Tribunal based on the documentary evidence marked as Ex. P1, 2 and 4 coupled with the evidence of P.W.1 and P.W.3, recorded a finding that the accident occurred on account of the negligence of the rider of the Bajaj Scooter and thereby awarded compensation by judgment and award dated 24.1.2008. The Insurance Company did not prefer an appeal against the judgment and award challenging the finding as to the negligence attributed to the rider of the Bajaj M-80 Scooter. On the other hand, the Insurance Company has satisfied the award. Now at a belated stage, after delay of 1902 days from the date of admission of the appeal filed by the claimant cross objection is filed by the Insurance Company along with an application for condonation of the delay of 1902 days and also an application under Order 43 Rule 27 of C.P.C. for production of the additional documents at this stage. Both the applications are supported by an affidavit filed by the counsel for the Insurance Company. Upon going through the contents of affidavit filed along with an application for condonation of delay, it appears to me that the cause shown for condonation of in ordinate delay of 1902 days in filing cross objection is not sufficient cause. Similarly, the reasons for production of the additional documents shown in the affidavit filed in support of the application under Order 43 Rule 27 of C.P.C. does not inspire the confidence of the Court. It is not the case of the Insurance Company that the document now sought to be produced was not available when the claim was adjudicated by the Tribunal. There was no impediment to obtain and produce the document before disposal of the claim. Of course in the said documents, the history is shown as fall from bike near kudachi on 12.11.2007 at 7.45 p.m. Merely the history is written as fall from scooter one cannot jump to the conclusion that the injuries sustained by the claimant were not on account of the accident. In the claim petition it has been stated by the claimant that while he was proceeding as a pillion rider on a motorcycle the Bajaj M-80 Scooter cam and dashed and thereby he fell down from the motorcycle and sustained injuries. Therefore, the document now sought to be produced at a belated stage will not help the Insurance Company in any way more so for the reason that the Insurance Company has already satisfied the award. The cross objection is also liable for dismissal on the ground of delay. The Tribunal is justified in recording a finding that the accident occurred on account of the negligence of the rider of the Bajaj M-80 Scooter.

Coming to the determination of the compensation it is seen from award that the Tribunal awarded a total compensation of Rs. 25,000/-. Out of that Rs. 20,000/- towards pain and suffering and Rs. 5,000/- towards medical expenses which is on the lower side. Except under these two heads the Tribunal has not awarded compensation under any other heads.

Ex. P4 the wound certificate discloses that the claimant sustained fracture shaft of the middle 1/3rd of femur and fracture of mandible for which he was treated as inpatient for 13 days. It is evident that he underwent open reduction and internal fixation with IM nailing for left femur on 23.11.2001. It is stated that he was working as bar bender. The Tribunal has awarded a total compensation of Rs. 20,000/- towards pain and suffering. Having regard to the nature of injuries, that he underwent surgery and accident occurred in the year 2001, an amount of Rs. 40,000/- would be a just compensation towards pain and suffering as against Rs. 20,000/- awarded by the Tribunal.

The Tribunal has rightly awarded Rs. 5,000/-towards medical expenses based on the medical bills produced. However, the Tribunal has not awarded the compensation towards attendant charges, nutritious food, nourishment, loss of earning during the period of treatment, loss of amenities and loss of future income on account of disability.

On account of the accidental injuries the claimant must have been incapacitated from attending to his work for a minimum period of three months. Though it is stated that he was working as a bar bender and earning Rs. 6,000/- and to prove the same P.W.4 was examined as his employer, the evidence of P.W.4 does not inspire confidence of the Court. Thus, there is no evidence in proof of the income of the claimant. In the absence of evidence and having regard to the age of the claimant as 22 years, I am inclined to take his income at Rs. 3,000/- per month and award a sum of Rs. 12,000/- under the head loss of income during the period of treatment for 3 months. Further, the claimant has been awarded a sum of Rs. 5,000/- towards nourishment and conveyance charges. Since he had fracture of shaft of femur and also fracture of mandible a sum of Rs. 20,000/- is awarded under the head loss of amenities. The conditions of the claimant after the accident were such that he was unable to move without the assistance of an attendant since he had fracture of femur. It goes without saying that he was in need to services of an attendant for a minimum period of two months. So an amount of Rs. 6,000/- is awarded towards attendant charges @ Rs. 3,000/- per month.

Dr. Angadi who has been examined as P.W.2 has spoken that the claimant suffered 40% disability of the affected limb but the Tribunal without justification has opined that he has not suffered any disability. Ex. P10 is the disability certificate wherein the disability is shown as 40% of the affected limb. Having regard to Ex. P10 disability certificate and evidence of P.W.2 Dr. S.R. Angadi who examined him for assessment of disability and issued disability certificate, I am inclined to take the disability to the whole body as 10%. In that event, the loss of monthly income on account of disability comes to Rs. 300/- and annual loss of comes to Rs. 3,600/-. If it is multiplied by ''18'' multiplier having regard to the fact that the claimant was aged about 23 years at the time of accident the total loss of future income on account of disability comes to Rs. 64,800/- So an amount of Rs. 64,800/- is awarded loss of future income on account of disability.

Thus, the claimant is held to be entitled for compensation under various heads as under:

In all, the appellant/claimant is held to be entitled for a total compensation of Rs. 1,52,800/- as against Rs. 25,000/- awarded by the Tribunal. There shall be enhancement of Rs. 1,27,800/- Accordingly, I proceed to pass the following:

ORDER

(i) MFA 4473/2008 is partly allowed. The judgment and award dated 24.01.2008 passed in M.V.C. No. 1509/2004 on the file of FTC - III and MACT, Belgaum, stands modified awarding enhanced compensation of Rs. 1,27,800/- over and above the compensation awarded the Tribunal together with 6% interest thereon from the date of the petition till the date of realisation.

(ii) The respondent National Insurance Company is directed to deposit the enhanced compensation amount within a period of two months from the date of receipt of a copy of this order.

(iii) In the event of deposit, entire compensation shall be disbursed to the claimant.

(iv) MFA Crob No. 100185/2014 filed by the Insurance Company is dismissed.

(v) The amount in deposit by the Insurance Company shall be transmitted to the Tribunal.