Sameer vs Puttappa and Others

B. Manohar, J.—The appellant is the claimant in M.V.C. No. 15/2010 on the file of the Additional Senior Civil Judge and AMACT, Haven (hereinafter referred to as ''the Tribunal'', for short). Being not satisfied with the quantum of compensation awarded by the Tribunal by its judgment and award dated 20.8.2011, the claimant has fled this appeal seeking enhancement of compensation.

The case of the claimant is that on 21.5.2009 at about 11.00 p.m., when he was riding in his motor cycle bearing Regn. No. KA26/J-5346 on Laxmeshwar-Doddur Road, a motor cycle bearing Regn. No. KA-25/S-8672 came in opposite direction with high speed in a rash and negligent manner and dashed against the motor cycle of the claimant and caused accident. Due to the said accident, the claimant sustained grievous injuries to his hand and other parts of the body. Initially, he taken treatment in the Government Hospital, Laxmeshwar and thereafter he was shifted to KIMS Hospital, Hubli and also he took the treatment in Kalamadani Hospital, Hubli. At the time of accident, he was aged about 30 years. He was doing fruit business and earning a sum of Rs. 10,000/- p.m. He claimed that due to the fracture of hand and other injuries to the body, he took the treatment for a period of 20 days as inpatient and spent Rs. 90,000/- towards medical expenses and sought for compensation of Rs. 8,40,000/-.

Though the owner of the vehicle was served with notice, he remained unrepresented. The 2nd respondent/Insurance Company filed written statement inter alia denying the entire averments made in the claim petition and disputed the age, nature of work and the income of the claimant. It was further contended that there was contributory negligence on the part of the riders of both the vehicles. The rider of motor bike bearing Regn. No. KA-25/S-8672 was not having a valid and effective driving licence as on the date of accident and sought for dismissal of the claim petition as against it.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. The claimant, in order to prove his case, examined himself as P.W. 1 and got marked the document as Exs. P1 to P25. The claimant examined Dr. Laxman Naik as PW 2 to prove his disability. On behalf of the respondents, the officer of the Insurance Company got examined as RW 1 and got marked the documents as Exs. R1 to R5.

The Tribunal after considering the oral and documentary evidence adduced by the parties and taking into consideration the MVI report, spot panchanama and copy of complain, held that due to rash and negligent riding of the motor bike bearing Regn. No. KA 25/S-8672, the accident had occurred and therefore, the claimant is entitled for compensation. Insofar as the quantum of compensation is concerned, in the accident, the claimant sustained three fractures. The doctor, who treated the claimant, assessed the disability to an extent of 38%. In view of fractures to three fingers, the claimant cannot hold any object tightly. There is no grip. The Tribunal taking into consideration the disability to an extent of 7% and the income of Rs. 3,000/- p.m. and applying the multiplier ''17'' awarded a sum of Rs. 42,840/- towards loss of future income, Rs. 15,000/- towards pain and sufferings, Rs. 12,506.43 towards medical expenses, Rs. 900/- each towards nourishment and loss of earning during the period of treatment. In all, the compensation of Rs. 72, 146/43 has been awarded with interest at 6% p.a. Being not satisfied with the said compensation, the claimant has preferred this appeal.

Sri Harish Maigur, learned Advocate appearing for the appellant contended that the judgment passed by the Tribunal is contrary to law. The claimant has sustained three fractures due to the road traffic accident. The Tribunal has taken the only one fracture i.e. fracture of bone and third middle finger. The compensation awarded by taking into consideration the disability to an extent of 7% and income of Rs. 3,000/- p.m. is contrary to law.

Smt. Preethi Shashank, learned Advocate appearing for the 2nd respondent argued in support of the judgment passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment impugned and the oral and documentary evidence adduced by the parties.

The records clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 21.5.2009 due to the actionable negligent on the part of the rider of motor bike bearing Regn. No. KA25/S-8672. The finding of the Tribunal on the said aspect has become final. The claimant being aggrieved by the quantum of compensation has filed this appeal seeking for enhancement of compensation. The wound certificate issued by the doctor clearly discloses that the claimant has sustained the proximal phalanx fracture of index, middle and ring fingers of right hand. The doctor, who treated the claimant in his evidence deposed that there is malunited fracture of proximal phalanx of index and ring fingers and united fracture of middle finger proximal phalanx. In physical examination, it was found that there is less of grip strength in index, middle, ring fingers, stiffness and muscle wasting of fingers of right hand. The doctor assessed the disability to an extent of 38% of limb. However, the disability to an extent of 7% taken by the Tribunal is contrary to law. The Tribunal ought to have taken 1/3rd of disability assessed by the doctor. The income of Rs. 3,000/- p.m. taken by the Tribunal is contrary to law. The claimant is a fruit merchant and the owner of motor bike. He claimed that he is earning more than Rs. 10,000/- p.m. In the absence of documents, the Tribunal ought to have taken the income as Rs. 5,000/- p.m. He is taking care of his family members apart from maintaining the motor bike. Unless he has sufficient income, he cannot maintain the motor bike. Taking into consideration the income of Rs. 5,000/- p.m. and the disability to an extent of 13% and applying the multiplier ''17'' the claimant is entitled to a sum of Rs. 1,32,600/- towards loss of future earning capacity as against Rs. 42,840/- awarded by the Tribunal. Further, the claimant was inpatient for a period of 20 days. A sum of Rs. 15,000/- awarded towards pain and suffering is on the lower side. Hence, he is entitled for a sum of Rs. 25,000/- towards the said head. The compensation of Rs. 900/- each awarded towards nourishment, attendant charges and loss of income during laid up period is on the lower side. Taking into consideration the number of days in the hospital, the claimant is entitled to a sum of Rs. 5,000/- towards attendant charges and nourishment and a sum of Rs. 5,000/- towards loss of income during laid up period. Though the claimant sustained the disability, no compensation is awarded towards loss of amenities. Hence, the claimant is entitled to a sum of Rs. 10,000/- towards loss of amenities. In all, the claimant is entitled for a sum of Rs. 1,90, 706/- as against a sum of Rs. 72,146/43. Accordingly, I pass the following

ORDER

The appeal is allowed in part. The claimant is entitled for compensation of Rs. 1,90,706/- as against Rs. 72,146.43 awarded by the Tribunal with interest at 6% p.a. from the date of claim petition till deposit.

However, the claimant is not entitled to interest for the delayed period of 1039 days. 50% of the enhanced amount be deposited in any Nationalised Bank for a period of five years. Remain amount shall be released in favour of the appellant.