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Judgment
Aravind Kumar, J.—Though the matter is listed today for admission by consent of learned Advocates the matter is taken up for final hearing since it is of the year 2007.
The claimant not being satisfied by judgment and award dated 28-2-2007 passed in MVC 406/2006 by the Principal Civil Judge (Sr.Dn) & Additional MACT, Davangere, is seeking enhancement of compensation in this appeal.
The facts in nutshell are as follows:
In a road traffic accident which occurred on 30.10.2005 at about 2 p.m. when the claimant was going on his motor cycle from Harihar to Grasim colony near Old Check post, a Bajaj Caliber bearing Registration No. KA-17/S-9644 came in a rash and negligent manner and dashed against the claimant on account of which he is said to have fallen down and sustained grievous injuries. The claimant filed a claim petition in MVC No. 406/2006 u/s 166 of the IMV Act, 1988 claiming a compensation of Rs. 6,50,000/- with costs and interest.
On service of notice respondents 1 and 2 appeared before the Tribunal, contested the matter by filing separate written statement and denied the averments made in the claim petition. The Tribunal on considering the pleadings and after framing the issues allowed the claim petition in part and awarded a total compensation of Rs. 68,926/-under the following heads:
Towards loss of income during : Rs. 1,330/- treatment period 2. Towards Medical expenses : Rs. 32,396/- 3. Towards disability conventional : Rs. 6,000/- amount 4. Injury pain and towards : Rs. 27,000/- suffering and agony 5. Towards Diet and attendant : Rs. 2,200/- charges ------------------- Total Rs. 38,926/- -------------------
Before the Tribunal claimant had got himself examined as P.W.1 and also examined the doctor who treated him as P.W.2 and had got marked Fxs.P.1 to P. 10. The respondent did not lead any oral evidence but had got marked the Insurance Policy of the offending vehicle as Ex.R.1.
It is this award which is assailed in this appeal.
I have heard Sir. M.N. Vijaya, learned Counsel for Sri. Basavaraj M. Mekki and Smt. H.R. Renuka, learned Counsel appearing for respondent No. 2. Respondent No. 1 though served has remained unrepresented.
Smt. Vijaya would contend that compensation awarded by the Tribunal under all headings are abysmally on the lower side and requires to be enhanced substantially. She would contend that admittedly there were two fractures and submits that, the compensation under the heading pain and suffering as also under the heading loss of amenities are required to be substantially enhanced apart from enhancing the compensation under other heads.
Per contra Smt. H.R. Renuka, learned Counsel for respondent No. 2 would submit that the compensation awarded by the Tribunal is in consonance with the evidence placed by the claimant and does not coil for interference and seeks for dismissal of the appeal.
Having heard the learned Counsel for the parties the following points arise for my consideration:
(i) Whether the award passed by the Tribunal in MVC No. 406/2006 dated 23-2-2007 awarding a compensation of Rs. 68,926/- is just and reasonable or is it required to be enhanced/modified? If so to what extent?
(ii) To what order?
The doctor who has been issued the disability certificate namely Ex.P.9 has been examined as P.W.2. The said doctor has stated that claimant was an impatient at the City Medical Center from 30-10-2005 to 9-11-2005 and under went surgery and treatment for the injuries sustained i.e., fracture sustained in the accident. He has also stated that as per X''ray report dated 30-10-2005 it depicted that there was fracture of both bones lower end of Right leg and on physical examination of the claimant on 27-12-2006 it was noticed that claimant was walking with pain, discomfort, pain over his right ankle and right knee and extreme flexion was also found to be painful. In conclusion he opined that permanent disability (physical) was about 25% to 30% including right knee and right ankle. Though it is brought to the notice of the Court about the cross-examination of the witnesses P.W.2 doctor wherein it is admitted that the fractures are united, that by itself would not disprove the fact about the nature of the injury, sustained by the claimant in the accident in question, on the other hand it fortifies the fact that claimant had suffered 2 fractures. Admittedly, claimant was hospitalised for 10 days and was inpatient and has undergone surgery and on considering this evidence on record the compensation awarded by the Tribunal towards disability and injury pain in a sum of Rs. 6,000/- is on the lower side and requires to be enhanced by awarding a total sum of Rs. 30,000/- in substitution to tribunals'' award. Under the said head tribunal has awarded a sum of Rs. 6,000/- which requires to be deducted and accordingly a sum of Rs. 24,000/- requires to be awarded towards disability, injury, pain and suffering, disability and also towards loss of amenities in life.
Tribunal while considering the claim under the head Medical expenses has found that out of the medical bills produced at Sl. No. 2, 21 and 22 does not bear the signature of the person who has issued the bill and thus the said amount has been discarded. I do not see any reason to discard the said bills for the reason that it does not bear the signature. The fact which cannot be lost sight of that while the pharmacist while dispensing with the medicine are in the habit of issuing either handwritten bills or computer generated bills and such bills cannot be held, that it cannot be taken into consideration and accordingly the same is taken note of and a further sum of Rs. 5,000/- is awarded towards medical expenses.
The claimant was immobile for a considerable period namely 11 days in Hospital and obviously unable to attend the avocation which he was carrying on, atleast for a period of two month since there was a fracture of tibia and also injury to right knee and right angle. Hence, a sum of Rs. 3.700/- is awarded towards loss of income during treatment period in addition to what has been awarded by the Tribunal.
Having perused the wound certificate which is at Ex.P.4 it is seen that there was fracture of both bones at its lower end as found by the doctor and it opined by the Doctor that said injury is grievous in nature, hence. I am of the considered opinion that towards loss amenities in life the compensation is required to be awarded and hence a sum of Rs. 13,000/- is awarded under the head loss of amenities in life.
The claimant was hospitalised for 11 days and towards diet, nourishment and attendant charges a compensation awarded by the Tribunal in a sum of Rs. 2,200/- is abysmally on the lower side and hence a further sum of Rs. 3,000/- is awarded towards diet, nourishment, conveyance and attendant charges and accordingly the total compensation that becomes payable by way of additional compensation in addition to what has been awarded would be Rs. 48,700/-. Accordingly Point No. 1 formulated herein above is answered by holding the award of the tribunal is required to be modified.
Re: Point No. 2: In view of the above the following order is passed.
ORDER
(i) The appeal is allowed.
(ii) An additional compensation of Rs. 48,700/- under the heads stated herein above is awarded and same shall carry interest @ 6% p.a. from the date of petition till date of payment.
(iii) Out of the enhanced compensation 50% of the amount with proportionate interest shall be deposited in any nationalised bank of appellant''s choice in the name of appellant for a period of 3 years and the balance 50% with proportionate interest shall be released in favour of the appellant. The appellant shall be entitled to draw periodical interest on Fixed Deposit.
(iv) No order as to costs.