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Judgment
Ram Mohan Reddy, J.—Recording the submission of learned counsel that the owner of the offending vehicle, respondent No. 1 when arraigned as respondent No. 1 before the Motor Accident Claims Tribunal in M.V.C. No. 703/2008, was placed ex-parte, service of notice on the 1st respondent is disposed with.
MFA No. 2924/2012 filed by the claimant injured aggrieved by the judgment and award dated 07.11.2011 in MVC No. 703/2008 of the Addl. Senior Civil Judge and CJM and MACT, Mandya, (for short ''MACT''), is insofar as not awarding compensation under the following heads:-- loss of earning during laid up period; loss of marriage prospects; reckoning 17% whole body disability; loss of amenities; and loss of future earning.
MFA No. 4664/2012 is filed by the Insurance Company calling in question the very same judgment and award insofar as it relates to attributing actionable negligence on the driver of the Motor Vehicle insured and quantum of compensation, as being on the higher side.
There is no dispute that on 02.04.2008 at about 5.30 pm, in front of Anjaneyaswamy temple of Maralagala village on Bannur Srirangapatna Road, a tipper lorry bearing certificate of registration KA-55/127 dashed against the appellant/claimant causing grievous injuries. In the claim petition under Section 166 of the Motor Vehicles Act, 1988, filed by the injured registered as MVC No. 703/2008, it was asserted that while riding the motor cycle bearing certificate of registration KA-02/N-9132 along with one Chethan as pillion rider cautiously on the left side of the road the tipper lorry driven at a high speed and in a rash and negligent manner dashed against motor cycle on its front side, by the reason of which, appellant suffered grievous injuries. Appellant, examined as PW-1, spoke to the police records such as FIR, mahazar, IMV report, charge sheet, Exs. P.1 to P.5, registering a criminal complaint against the driver of the tipper lorry. That evidence of P.W.1 remained unchallenged, since nothing incriminating was elicited in the cross examination to disprove the case. The Insurance Company did not adduce evidence, either oral or documentary. The MACT, having regard to the material on record and appreciating the evidence both oral and documentary, returned a finding on Issue No. 1 in the affirmative attributing actionable negligence on the driver of the tipper lorry. The wound certificate and the medical records disclose that appellant suffered the following injuries.
"(a) fracture of right clavicle;
(b) fracture of both bones of right forearm;
(c) compound fracture of right femur;
(d) fracture of both bones of right leg."
Appellant, at the first instance, was admitted to Government Hospital at Srirangapatna and thereafter referred to CSI Holds Worth Memorial Hospital, Mysuru, where he under went surgery to set right the broken bones, whence open reductions and internal fixation was done, while as an inpatient from 02.04.2008 to 17.06.2008; and in the second spell, from 02.07.2008 to 14.07.2008, in the third spell from 27.08.2008 to 05.09.2008; in the fourth spell at Hosmat Hospital, Bengaluru, from 06.02.2009 to 10.02.2009 and finally, from 19.03.2009 to 23.03.2009, in all, for a period of 103 days. Medical bills, Exs. P.12 (193 medical bills) coupled with the medical prescriptions Ex. P. 11 (169 prescriptions) discloses medical expenses of Rs. 2,62,874.50 and Rs. 68,836/-. The x-rays and discharge summary records surgery to set-right the fractured bones and treatment for infection. Dr. Mukund, P.W.2, orthopedic surgeon at Mysuru spoke to the medical records and the fact that the injured requires to pay about Rs. 50,000/- to Rs. 60,000/- for removal of implants, in addition to opining that the injured suffered permanent disability of 50% to the right leg lower limb and 5% disability in the right shoulder. Although the injured claimed to be employed as cashier at Bhagyalakshmi Bar, Baburayanakoppalu, paid salary of Rs. 6,000/- per month, nevertheless, MACT reckoned Rs. 5,000/- as monthly income of the injured; disability at 17% to the whole body to award Rs. 1,83,600/- towards disability; Rs. 3,26,000/- towards medical expenses; Rs. 50,000/- towards future medical expenses; Rs. 2,00,000/- towards pain and suffering; Rs. 50,000/- towards attendant charges and in all Rs. 8,59,600/- though on a calculation ought to be Rs. 8,09,600/- with interest at 9% per annum from the date of petition.
The answer to the first issue over actionable negligence, though challenged in the appeal preferred by the Insurance Company, regard being had to the reasons, findings and conclusion of the MACT noticed supra, that the police records clearly established the fact that the offending lorry was driven at a high speed and in a rash and negligent manner, cause of the accident, does not merit interference.
As regards quantum of compensation, there can be no more doubt that an able bodied young man aged 22 years as on 02.04.2008, the date of accident, would have earned in the atleast Rs. 5,000/- per month, the MACT cannot be found fault with. The opinion of P.W.2, doctor, that the injured sustained permanent disability of 50% to the right leg lower limb and 5% to the right shoulder, in the facts and circumstances, MACT was fully justified in reckoning 17% as whole body disability. Award of compensation towards future medical expenses, food and nourishment, and attendant charges, as also for loss of future earning in the form of disability, do not call for interference.
There is force in the submission of the learned counsel for Insurance Company that Rs. 2,00,000/- towards pain and suffering is on higher side, regard being had to the fact that the injured suffered four fractures, however, since MACT did not award compensation under the head, loss of amenities of life and marriage prospects, it is appropriate to adjust the excess compensation under the aforesaid two heads.
There is force in the submission of learned counsel for injured that MACT failed to award compensation towards loss of earning during laid up period. Admittedly, injured was an inpatient in the hospital during different spells, in all for 103 days, and is not as if immediately after discharge from hospital, was in a position to attend to duties. Keeping in mind the nature of injuries suffered, the period of treatment and hospitalization, it is reasonable to infer that the injured was out of employment for a period of 5 months and reckoning Rs. 5,000/- as monthly income of the injured is entitled to Rs. 25,000/- under the said head.
In the result, MFA No. 2924/2012 of the claimant/injured is allowed-in-part. The judgment and award impugned is modified entitling him to Rs. 25,000/- with interest at 9% per annum in addition to what is awarded by the MACT, and in all other respects remains unaltered, while MFA No. 4644/2012 preferred by the Insurance Company is dismissed. The amount in deposit is directed to be transmitted to the MACT, forthwith.