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Judgment
N. Ananda, J.—The matter is listed for admission. Lower Court records are received. With the consent of learned counsel for parties, the matters are taken up for final disposal. This is a claimants'' appeal for enhancement of compensation.
I have heard Sri. S.V. Prakash, learned counsel for claimant and Sri. H.C. Vrushabhendraiah, learned counsel for insurance company.
The claimant was the driver-cum-owner of Maruti Omni bearing No. KA-01/N-8698 and he was using Maruti Omni for transportation of Vijaya Karnataka'' newspaper from Shimoga to surrounding places. On 05.09.2007 at about 3.00 a.m., when claimant was driving his Omni Van on Shimoga-Sringeri road near Jaipur, a Lorry bearing registration No. KA-01/AB-5506 (belonging to second respondent and insured with 3rd respondent) came from opposite direction and dashed against Omni Van driven by claimant, as a result, claimant suffered injuries.
The respondents contested the claim petition raising several pleas including plead of contributory negligence.
The claimant has deposed; that accident took place due to head on collision between the insured Lorry and Maruti Omni driven by claimant. The claimant has also admitted that he did not possess driving licence to drive Light Motor Vehicle. In the circumstances, the tribunal has held that accident took place due to contributory negligence of driver of Lorry and driver of Omni Van and apportioned contributory negligence in the ratio of 50: 50
On hearing learned counsel for parties and after going through evidence and impugned judgment, I find that tribunal has failed to notice that driver of Lorry who was incharge of heavy vehicle owed greater responsibility to avoid accident. Therefore, I hold that driver of Lorry was guilty of contributory negligence to the extent of 60% and the claimant (driver of Maruti Omni) to the extent of 40%.
As a result of the accident, claimant had suffered following injuries:
i) Open fracture of right femur
ii) Lacerated wound over right elbow joint measuring 2" x 1
iii) Lacerated wound over forehead just above left eyebrow measuring 1" x 1/2"
iv) Lacerated wound just below right knee joint
The claimant was treated in Kasturba Hospital at Manipal. He was operated for reduction of fractures. Even after complete treatment, he suffers from permanent physical disability which has been assessed at 10%.
Having regard to the fact that claimant was the owner-cum-driver of Maruti Omni (Newspaper transport vehicle) his income is determined at Rs. 8,000/- per month. Thus, claimant is entitled to additional compensation of Rs. 54,000/- towards ''loss of earning capacity and future loss of earnings''.
The tribunal has awarded compensation of Rs. 1,80,000/- under following heads:-.
On hearing learned counsel for parties and after going through evidence and impugned judgment, I find that compensation awarded by the tribunal under the aforestated heads is inadequate. The compensation awarded by the tribunal needs upward revision. Therefore, compensation awarded by the tribunal is modified as follows:
In view of my finding that claimant is guilty of contributory negligence to the extent of 40%, claimant is entitled to total compensation of Rs. 1,82,400/-
In the result, I pass the following:
ORDER
(i) The appeal is accepted in part.
(ii) The impugned award is modified by enhancing compensation of Rs. 90,000/- to Rs. 1,82,400/-
(iii) The rest of the impugned award as it relates to rate of interest, period of accrual of interest and ratio of payment and investment is confirmed.