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Judgment
K. Govindarajulu, J.—Claimant in MVC 2078/2005 on the file of MACT, Bangalore (SCCH-16), is the Appellant in this appeal.
Facts necessary for consideration of the appeal are as under;
It is the case of the claimant that on 26.08.2004 at about 8.30 p.m. he was moving on the bicycle. When he was near Hoodi Farm road, the driver of the Maruthi vehicle bearing registration No. KA-03-A-8860 has driven the Maruthi van rashly, negligently, dashed against the Petitioner. It resulted in accident, Petitioner was shifted to St, Johns hospital. Before the accident he was working as security guard at M/s. Harsha Wheel Movers Limited and was paid Rs. 3.800/- p.m. So pray for a compensation of Rs. 20,00,000/- for the pain, suffering and agony, including the damage to the bicycle.
Respondent No. 1 the Insurance Company has filed objections. It is contended in the objections that the liability of the Petitioner is only if there is compliance of Section 3, Section 66 of the Motor Vehicles Act. The policy is subject to the limitations covered u/s 147 and Section 149 of the Motor Vehicles Act. Plead for availing the defences u/s 170 of the Motor Vehicles Act, deny the accident, the manner in which it has occurred, as the one pleaded by the Petitioner. Further contend that the claim is exaggerated, plead for dismissal of the claim application.
After framing of the issues PW-1 to 4 are examined Ex.P1 to P4 are marked. Learned member of the Tribunal has awarded Rs. 7,70,000/-. The break up of the figures are as follows:
Towards pain & agony Rs. 1,00.000.00
Towards medical expenses Nourishment, conveyance & Attendant charges Rs. 1, 10.000.00
Towards loss of income during Treatment period. Towards future Loss of income or future loss of Earning capacity. Towards future Loss of amenities in life. Rs. 5,35,000.00
Towards future medical Expenses Rs. 25.000.00
TOTAL Rs. 7,70,000.00
Learned advocate for the claimant-Appellant contend the facts of the case, there is major injury, the person is not in a position to pass urine, he has to be on cathedrin throughout his life, the disability of the two legs have been found. Doctor has opined paraesthesia of both the limbs throughout the life though assessed at 60% of the whole body looking to the nature of avocation of the Petitioner, the Court has to arrive at a disability of the entire body at 100% arid award compensation.
Learned advocate for the insurance company on the other hand contend that the impact of the accident as the one narrated by the doctor is the correct approach. Support the reasoning of the learned member of the Tribunal contend that it is not a case to enhance any further compensation So pray for dismissal of the appeal.
Material placed probabilise, accident is admitted, actionable negligence is not disputed. Opinion of the doctor of paraesthesia of both the limbs below the hip diagnosed at 60% disability is reflected in the facts of the case. It is further the case of the Petitioner that he was a guard. The accident is of the year 2004. The claimant has contended that he was drawing a salary of Rs. 3,800/-. No documentary evidence is produced to support the salary drawn by the Petitioner. So the Court is obliged to place hands on the ruling of the Apex Court in S. Suresh v. Oriental Insurance Co. Limited 2010 AIR SCW 437 wherein the Hon''ble Apex Court has held that if a driver has lost one of the leg below the knee, his disability should be calculated at 100%. Their lordships were also considering the position of as a carpenter who uses one of the hands. The ratio that follows is, if the accident has resulted in a situation that the injured cannot go back to the earlier work, the disability should be at 100%. So the Court holds that the disability in the facts of the case for the earning capacity of the Petitioner is concerned it should be taken as 100%. So the reasoning of the learned member of the Tribunal at page 22 taking the disability at 50%. for assessing the loss of earning capacity is set-aside. The age of the injured being 33 years the multiplier that is applicable is ''15''. So it works out to Rs. 3,000 � 12 = Rs. 36,000 � 15 = Rs. 5,40,000/- less Rs. 2,52,000/- awarded by the Tribunal.
The difference would be Rs. 2,88,000/- the same is awarded under the head of loss of earning capacity.
In regard to the future medical expenses as cathedrin has to be changed the Petitioner is entitled for an additional sum of Rs. 50.000/- under the head of future medical expenses. Under Die head of attendant expenditure a sum of Rs. 25,000/- is awarded. So the claimant is entitled for an additional compensation of Rs. 3,63,000/-. Additional compensation of Rs. 3,63,000/-shall carry interest at 6% pa. from the date of application till deposit. The entire additional compensation awarded be deposited in any Nationalised Bank initially for a period of 10 years authorising the Petitioner to draw interest at an interval of 3 months.
Appeal is allowed accordingly.