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Judgment
K. Govindarajulu, J.—Claimant in M.V.C. 2978/2007 on the file of MACT, Court of Small Causes, Bangalore (SCCH-10) is the Appellant in this appeal.
Facts necessary for the consideration of the present appeal are as under:
It is the case of the claimant that on 12.03.2007 at about 1.15 p.m. claimant was sitting on the Sendee Road near Bagalur cross, taking lunch, then the driver of the lorry bearing registration No. MED 868 belonging to the Respondent No. 1 on account of the rash negligent driving by the driver has dashed against the Petitioner. It resulted in claimant''s both the legs receiving grievous injuries. On account of it, he was shifted to Colambia Asia Hospital. Yashoda Hospital Hyderabad. At Yashoda Hospital right leg was amputed, he has lost upper teeth, artificial teeth were fixed. There is a total disablement of the person as he is not in a position to carry out his occupation as a driver of the vehicle. So pray for a compensation of Rs. 25.00 lakhs.
Owner of the vehicle has filed objections contend that the driver of the lorry bearing registration No. MED 868 was driving the lorry by observing all the road traffic rules, Petitioner was the cause for the accident. Further contend that the vehicle is insured and had a valid policy. So pray for dismissal of the application.
The Insurance Company has filed objections, call upon the Petitioner to prove the manner in which the accident has occurred, its impact contend that the claim is exaggerated. Assert that the liability of the company is strictly in accordance with the terms of the policy, plead for dismissal of the claim application.
After framing of the issues claimant is examined as PW-1. Medical evidence is adduced through PWs-2 to 4. PW-5 is a co-employee who is said to be working where the claimant; is working namely M/s. Arunachala Logistics Private Limited, Kurnool. Learned member of the Tribunal has believed the case of the claimant, assessed the disability at 50% of the body thereby accepted the medical evidence awarded a compensation of Rs. 14,59,000/- (which includes Rs. 6,00,000/- lakhs towards medical expenses)
Learned Advocate for the Petitioner-Appellant place reliance on ruling of Apex Court in S. Suresh v. Oriental Insurance Company Ltd., and contend that in a case of driver of the lorry if there is an amputation of one leg at any portion of the leg, the driver cannot do the driving activity. So the disability at 100% should be taken for assessment. It is a ease under Workmen''s Compensation Act. The Petitioner being a third party the Petitioner is entitled to claim parity. Medical bills produced are for nearly Rs. 7,00,000/- but the Tribunal has awarded only Rs. 6,00,00/- lakhs. So pray for enhancing the compensation.
On the other hand, learned advocate for the insurance company while supporting the judgment of the learned Trial Judge contend the evidence in regard to the disability is adduced by the claimant. The doctor have opined that there is a disability to an extent of 50%, so the approach of the learned member of the Tribunal in fixing the compensation based upon the assessment is just. The ruling relied is not attracted as the case is a case under Workmen''s Compensation Act. So pray for dismissal of the appeal.
Material placed probabilise, the accident, actionable negligence are not disputed. Quantum of the compensation awarded is disputed. In S. Suresh v. Oriental Insurance Company Ltd. Hon''ble Apex Court while considering the disability suffered by a driver, their lordships have referred to a definition of total disablement assess the incapacity of the person to undertake the work which fie was earlier doing. The principle that follows is the Tribunal should take note of the impact of the accident. Amputation of one of the legs above the knee being reflected, occupation of the Petitioner being a driver, it being not disputed, amputation read with the definition of the total disablement would lead to a conclusion of the driver in question, loosing his capacity to drive a lorry. The occupation of the Petitioner being a lorry driver, alter the accident he being not in a position to drive the lorry, the further point would be whether the principle while interpreting the Workmen''s Compensation Act has a bearing. The Workmen''s Compensation Act is a special legislation. But the said legislation is helpful to cover the Workmen. The submission of the learned advocate for the Petitioner is so far as the Petitioner is concerned, he becomes a third party is accepted by this Court, so also the Court accepts the ratio in Workmen''s Compensation case is also applicable to M.V.C. case also. So reject the submission of the learned advocate for the Insurance Company to assess the compensation to an extent of 50% only.
The loss of the future income according to the calculation by the Lower Court is Rs. 3,84,000/-. This figure is arrived taking 50% of the disability. In view of the 100% disability the Petitioner is entitled for an additional sura of Rs. 3,84,000/- under the head of loss of earning capacity. Similarly the total bills calculated by the learned advocate disclose Rs. 7,05,021/- is the amount spent for the medicines. Rs. 6,00,000/- being awarded additional sum of Rs. 1,05,000/- is awarded on actual expenses under the medicines. In view of the amputation, under the head of future medical expenses a sum of Rs. 15,000/- is awarded. Rest of the award is kept intact. So the Petitioner is entitled for additional compensation of Rs. 5,04,000/. This enhanced compensation of Rs. 5,04,000/- shall carry interest at 6% p.a. from the date of application till deposit. Entire enhanced compensation with interest accrued thereon is directed to be deposited in a Nationalized Bank initially for a period of 10 years authorizing the Petitioner to draw interest at an interval of 3 months.
Appeal is allowed in part.