Smt. Sunanda @ Vinoda Pattar vs Sri. Ramagonda and Others

K. Govindarajulu

By a common order, MACT has decided MVC. No. 2315/2001, 2316/2001 and 2317/2001. All the claimants have preferred appeals and they are numbered differently, so all the cases are taken up for consideration at a stretch. The case of the claimants is on 17.7.2001 they were travelling from Mugalakhod to Mahalingapur in the Tempo Trax bearing registration No. KA 23/M-3468, while so, they were near Sultanpur village, the driver lost control of the vehicle, it resulted in accident. Further, it resulted in injuries to the claimants. So for the pain, suffering and agony suffered by them, seek for compensation. The insurer of the vehicle has filed objections, called upon the petitioners to prove the accident, its impact, contend that the liability is in accordance with the terms of the policy, plead for dismissal of the claim applications.

After framing of issues, the learned Member of the Tribunal has permitted the parties to lead evidence, P.Ws. 1 to 3 are the three claimants in all the three MVCs. P.W.4 - Doctor certifies the disability of each of these claimants. Exs.P.1 to P.71 are marked. The learned trial Judge has accepted the case of the claimants in regard to the negligent driving of the Tempo Trax by the driver, directed the Insurance Company to pay the compensation. Aggrieved by the said fixation of the compensation, these appeals are preferred by the claimants.

The learned Advocate for the claimants contend that in each of these cases, the claimants suffering the injuries is supported with the version of the Doctor examined as P.W.4. P.W.4 has certified the disability of each of the claimants and the disability is eschewed while assessing the compensation. This method of eschewing the evidence is improper. The evidence can be eschewed if there is a reasonable ground to disbelieve the case pleaded by a party. The only sentence that is found from the reasoning is that PW.4 in his evidence has not stated about the surgical procedures such a reading of the evidence has led to injustice, so seek for assessment of the compensation on the aspect of loss of earning capacity and other heads suitably.

The learned Advocate for the Insurance Company while supporting the reasoning of the learned Member of the Tribunal submits that the Doctor was in the witness box. Affidavit of the Doctor is filed. What prevented the learned Advocate for the claimants to see that the material evidence is placed in consonance with the happenings remains unsubstantiated. If the claimants have suffered injuries and they were operated, in the normal course of the evidence by any Doctor, he will not fail to mention about the surgical procedures/particulars of operation, so there is dearth in the material evidence relied by the claimants, so pray for dismissal of the appeals.

The material submissions probablize accident is admitted and actionable negligence is not disputed. Only in regard to the assessment of the evidence to arrive at the just compensation, the finding is to be given. It is true there is some force in the submission of the learned Advocate for the Insurance Company, the learned Advocate who conducts the case has to place necessary evidence not only in regard to the injuries suffered but also the treatment that is taken by each of the claimants whether it is a conservative treatment or an operation, total disability, whether it is permanent or partial. Assuming for the argument sake that the learned Advocate was not so diligent, is it right for the Court to reject the claim of the claimants, the answer is No. In the facts of the case, when K. Wire is said to be done, why the Doctor has to mention about the surgical procedure adopted for fixing K.Wire for the colles fracture. So, the submission of the learned Advocate for the Insurance Company is a technical approach rather than the approach which is required to be followed by a Court deciding a case like MVC, a statute which is intended to meet the social objective so, the submission of the learned Advocate for the Insurance Company that there is inaction on the part of the learned Advocate for the petitioner so the finding recorded by the learned Member of the Tribunal cannot be interfered is without any merit, so it is rejected.

In MFA. No. 3543/2007(MVC. No. 2315/2001), the case of the claimant is that he was doing a flower vending business, had a fracture of L5 and L6. The Doctor is of the opinion that there is a disability to the lumbar of the spine to an extent of 25%, the Doctor has placed reliance on the disability certificate as per Ex.P. 16. The evidence of the Doctor is rejected on the ground that there is no X.ray and there is no material evidence placed by the claimant to prove the earning after the accident. The approach seems to be technical as the one narrated supra. So, the Court is obliged to peruse the records substantiating the income. No such material being placed, accident is of the year 2001, the occupation is flower vending, immobility for a period of four months and disability at 10% is assessed and the earning of the injured is assessed at Rs. 2500/- per month. So, the claimant/appellant is entitled for the following additional compensation:

10% of Rs. 2500=Rs. 250 X 12 X 15 = Rs. 45,000/- under loss of earning, a sum of Rs. 10,000/- is awarded for the future medical expenses, a sum of Rs. 15,000/- is awarded under the head of loss of happiness in life. So, in all the claimant is entitled for a total sum of Rs. 70,000/- as additional compensation.

In MFA. No. 4530/2007(MVC. No. 2316/2001), the claimant is a lady who claims that she is a goldsmith earning Rs. 4500/- per month. She was treated as an in-patient for a period of two months and there is restriction in the movement of the right shoulder. No documents are produced to prove the occupation or the income. So following the principle of prabability in the facts of this case also, the income of the injured is assessed at Rs. 2500/- per month. The age of the claimant is 32 years so, under the head of loss of earning capacity, it works out to 10% of Rs. 2500 = Rs. 250 X 12 X 16 = Rs. 48,000/- . In addition to this, a sum of Rs. 15,000/- is awarded under the head of loss of amenities in life, Rs. 5,000/- is awarded under the head of future medical expenses, a sum of Rs. 10,000/- is awarded under the head of loss of happiness. A sum of Rs. 8,000/- under the head medical expenses was disallowed on the ground that there was no evidence of surgery. However, the claimant is entitled for an additional sum of Rs. 8000/- under the head of medicines. In all, the claimant is entitled for an additional compensation of Rs. 86,000/- .

In MFA. No. 3544/2007(MVC. No. 2317/2001). claimant has suffered colles fracture. The Doctor has certified disability at 20%. For the whole body it works out to 5%. There being no material evidence in regard to the income, following the probability in the other two cases, the income of the injured is assessed at Rs. 2500/- per month. The disability is assessed at 5%. The age of the injured is 35 years. So, under the head loss of earning capacity, the claimant is entitled to Rs. 24,000/- (5% of Rs. 2500/- =Rs. 125/- X 12 X 16 = Rs. 24,000/- ), a sum of Rs. 15,000/- is awarded under the head loss of amenities, a sum of Rs. 10,000/- is awarded under the head loss of happiness in life. So, in all the claimant is entitled for an additional compensation of Rs. 49,000/- . Accordingly, the claimants are entitled for additional compensation arrived at supra with interest @ 6% per annum from the date of application till deposit, as the compensation is awarded for the injuries and agony suffered in the year 2001, the entire compensation awarded with accrued interest be paid to the respective claimants. All the MFA''s are allowed in part.