Savitha and Others vs Vijendra and Others

L. Narayana Swamy, J.—1. Claimants have filed an appeal for enhancement of compensation and Insurance also filed an appeal challenging the judgment and award praying for setting aside the order of the Tribunal.

The claim was filed under Section 166 of the M.V. Act, seeking compensation for having sustained injuries in the road traffic accident. During the pendency of the said petition, petitioner died. Hence, his legal representatives were brought on record and prayer was amended to award a compensation under the head loss of dependency'' and treat the claim petition as filed by legal representatives of the petitioner.

It is stated by the claimants before the Tribunal that when the deceased was walking along with his brother-in-law on 23.3.2015 at about 4.30 p.m., a goods Auto bearing registration No. KA-18-7005 belonging to first respondent before the Tribunal came in a rash and negligent manner and dashed against the deceased Yogendra resulting in sustaining grievous injury to the spinal cord. He was shifted to local hospital immediately. Thereafter, for further treatment, he was taken to KMC hospital and was treated for a period of one month till 5.11.2008. The driver of the offending vehicle has been charge sheeted for an offence punishable under Section 304(A) IPC. Considering the case of the claimants, the Tribunal has awarded a compensation of Rs. 4,48,000/-.

Learned Counsel for the appellant-claimants submits that the compensation awarded is on the lower side. It is contended that compensation claimed under claim petition is Rs. 15,00,000/- which should have been awarded.

The defence taken by the Insurance is that there is a delay in filing the complaint. The accident was occurred on 23.3.2005, whereas the complaint is filed on 1.10.2005. Hence, there is a delay in lodging the complaint and the same is not explained to the satisfaction of the Court. Though the deceased was treated in different hospitals, M.L.C. was not registered and further the same was not forwarded to the police for immediate action. It is further submitted that the evidence of doctor R.W. 1 reveals that the death was due to natural decease. Accordingly, there is no nexus between death and the accident and on this ground alone, the claim petition should have been dismissed.

I have heard the learned counsel for the parties and perused the material on record.

On behalf of the claimant, P.W.1-wife of deceased has been examined and Exs. P1 to P138 has been produced. Ex. P2 is the F.I.R., Ex. P3 is the complaint and Ex. P4 is the inquest report. Exs. P9 to 134 are the medical bills and Ex. P135 and 138 are x-ray films. On behalf of respondents, Exs. R1 to R6 have been marked. Ex. R1 is the P.M. report, Ex. R2 is requisition, Ex. R3 is report submitted along with dead body, Ex. R4 is P.M. report, Ex. R5 is the letter of F.S.L. and Ex. R6 is requisition letter.. In support of road accident, the claimants have not produced wound certificate. However, a copy of the wound certificate is available in the LCR. It is opined by the doctor in the wound certificate that the injuries are grievous in nature. To substantiate the injuries, evidence of P. W. 1 has been examined who in her chief examination has deposed that injured was in the hospital since from the date of accident and she has spent huge amount for treatment. In the cross-examination at para 5, she has deposed that injured was an in-patient for one month and he has been discharged from K.M.C. hospital and again he was an in-patient in the hospital for three months. In the chief examination vide affidavit evidence, it is stated that due to injuries and bed ridden for a long period of time, the deceased died in spite of better treatment provided by her and family members. The gist of evidence of P.W. 1 in the chief examination and cross-examination reveals that injured was taken to the hospital and treated for a month and discharged. Since he had suffered the injury of spinal card contusion and bed ridden, it resulted in suffering from bedsore and consequently, he died. The doctor who has performed post mortem has opined that the death was due to infection to the intestine and movement of body was not normal since he was bedridden. These pieces of evidence of P.W.1, R.W.1, Ex. P4, P.M. report and wound certificate (not marked) orient towards accidental injury. In the light of evidence on record, the reasons assigned by the MACT that the death was due to motor accident has to be confirmed.

Accordingly, the appeal filed by the insurance company is rejected. The amount in deposit is ordered to be transferred to the MACT.

The deceased has sustained injuries in the road traffic accident. As stated in the wound certificate, though it is not marked, the injury was to the spinal cord. Though it is the contention of the Insurance that the treated doctor has not been examined and case sheet from K.M.C. hospital has not been produced, since because of misery of widow, she was not in possession of the same. Consequently, as the death was taken place during the pendency of the appeal, no effort was made to examine the doctor. Claimants have stated that the income of the deceased was more than Rs. 1,50,000/- per annum. Claimants are wife and children of deceased. The daughter and son were minors at the time of claim petition filed. It is stated that the entire family was depending upon the deceased. For the purpose of proving income, RTC particulars have been produced to claim that they are having small piece of land. Accordingly, considering the year of accident, size of family and age of deceased, I hold that the income assessed at Rs. 3,500/- per month is on the lower side. In respect of the income, learned Counsel for the respondent submits that what is assessed is a correct income and no enhancement in income is called for. Considering the size of the family and year of death, the income can be taken at 4,000/- per month and by deducting 1/3rd, the income comes to Rs. 2,666/- and the loss of dependency works out to Rs. 4,47,999/- (Rs. 2,666/-x 12 x 14). Accordingly, the compensation is reassessed as follows:

Claimants appeal is allowed in part. The claimants are entitled for a total compensation of Rs. 6,23,999/- with 6% interest p.a. as against the compensation of Rs. 4,48,000/- awarded by the Tribunal.