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Judgment
B. Manohar, J.—The claimant being not satisfied with the compensation awarded in M.V.C. No. 884/2008 dated 30.10.2009 passed by the Fast Track Court-II, Koppal, has filed this appeal seeking for enhancement of compensation. In the claim petition, it was contended that while he was proceeding on Gangavathi-Anegundi road on 12.10.2008 at about 05.00 p.m. due to the rash and negligent riding of the motorcycle bearing Registration No. KA-36-Q-1384 by the first respondent came and dashed against him, due to which, the claimant sustained injuries to his leg and other parts of the body. He was admitted to Om Sai Orthopaedic and Trauma Centre, Gangavathi, and he has spent huge money towards his treatment. He was aged about 35 years and working as a Sales Marketing Manager at M/s. Jamundas Agarwal and sought for compensation. of Rs. 8,30,000/-.
The rider of the motorcycle-respondent No. 1 and owner of the motorcycle- respondent No. 2 were served with notice. Respondent No. 1 though appeared has not filed any objection. Respondent No. 2 filed his written statement and contended that accident had not occurred due to the negligence on the part of the rider of the motorcycle. Further, it was contended that the vehicle is covered by the insurance and the insurer has to compensate the claim.
Respondent No. 3-insurer filed its objections denying the entire averments made in the claim petition and contended that rider of the motorcycle did not possess a valid driving licence as on the date of accident. Hence, the insurer is not liable to pay compensation and sought for dismissal of the claim petition.
The Court below after considering the oral and documentary evidence adduced by the parties and taking into consideration the F.I.R., Spot Mahazar, I.M.V. Report and the charge sheet held that due to the rash and negligent riding of the motorcycle, the accident has occurred and thus the claimant is entitled for compensation. The Court below taking into consideration the injury sustained and looking into the wound certificate and comminuted fracture of lower 1/3rd femur and that the surgery he has undergone, insertion of the rod, awarded compensation of Rs. 1,61,500/- with interest at 6% p.a. from the date of petition till realization. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal filed this appeal.
Sri B. Sharanabasawa, learned counsel appearing for the appellant contended that the compensation awarded by the Court below is on the lower side. Though the Doctor has assessed disability to an extent of 35% to the whole body, the Court below has taken the disability to an extent of 15%. Further, though the claimant was getting a salary of Rs. 7,000/- per month the Court below has taken only Rs. 5,000/-, which is on the lower side. Further, the compensation awarded towards future loss of income is also on the lower side and sought for enhancement of compensation.
On the other hand, Sri Laxman B. Mannoddar, learned counsel for respondent No. 2-insurance company argued in support of the judgment and award passed by the Court below and contended that though the claimant has claimed that he was getting a salary of Rs. 7,000/- per month, the employer has not been examined. In the absence of the same, the Court below has assessed income of the claimant at Rs. 5,000/- per month. Even after the accident, the claimant continued in the same job and hence the claimant is not entitled for compensation towards loss of future/earnings. Hence sought for dismissal of the appeal.
I have carefully considered the arguments advanced by the learned counsel for the parties, perused the judgment and award and oral and documentary evidence adduced by the parties.
The records clearly disclose that due to the rash and negligent riding of the motorcycle bearing No. KA- 36-Q-1384 by its rider the accident has occurred on 12.10.2008 and claimant has sustained comminuted fracture of lower 1/3rd of right femur and other injuries to the body. He was an in-patient for a period of 10 days and he has undergone surgeries and a steel rod has been inserted in the thigh of the appellant. The Doctor who has treated him in his evidence had assessed the disability to an extent of 28-30% to the whole body without assessing the disability to ''the; particular limb. In the absence of any authenticated document the Tribunal has rightly assessed income of the claimant at the rate of Rs. 5,000/- per month. The Tribunal while awarding compensation deducted 50% towards personal expenses which is contrary to law. Further, no compensation is awarded towards pain & suffering and loss of earnings during laid up period. Hence the claimant is entitled for compensation towards the same. Taking into consideration all these aspects of the matter the claimant is entitled for another sum of Rs. 1,10,000/- towards loss of future income, pain & suffering, loss of income during laid up period and loss of amenities. Rs. 65,000/- towards future loss of income, Rs. 20,000/- towards pain and suffering, Rs. 5,000/- loss of income during laid up period, Rs. 20,000/- towards loss of amenities. Accordingly, I pass the following order.
ORDER
The appeal is allowed in part. The claimant is entitled for enhanced compensation of Rs. 1,10,000/- apart from Rs. 1,61,500/- awarded by the Tribunal. The enhanced compensation amount carries interest at 6% p.a.
Out of the enhanced compensation amount a sum of Rs. 50,000/- with accrued interest shall be deposited in the fixed deposit in the name of the claimant in any nationalized bank for a period of five years. Remaining amount is ordered to be released in favour of the claimant.