Suresh and Others vs Umesh and Others

P.D. Waingankar, J.

INM F.A. No. 24278/2010

This appeal is preferred by the appellant-claimant against the judgment and award dated 16.02.2010 in MVC No. 70/2009 on the file of the Civil Judge (Sr. Dn.) and Member, Addl. MACT., Ramadurga.

By the impugned judgment and award, the Tribunal has awarded a total compensation of Rs. 70,000/- to the claimant and called upon the owner of the Maxi Cab to satisfy the award. The claimant who is dissatisfied with the quantum of compensation awarded by the Tribunal as well as the liability fastened on the owner of the Maxi Cab, has filed this appeal.

I have heard both the learned counsel appearing for the appellant-claimant and respondent-Insurance Company. Upon hearing the submission made by the learned counsel and upon perusal of the records, the following points would arise for my determination is:

"i) Whether the compensation awarded by the Tribunal is just and reasonable?

ii) Whether the Tribunal is justified in absolving the Insurance Company?"

Ex. P5 the wound certificate discloses the following injuries:

"i) Abrasion over the upper lip.

ii) Abrasion over the chin.

iii) Abrasion over the back of right elbow.

iv) Abrasion over the bone of right finger.

v) Tear of medial co-lateral ligament of left knee."

The Tribunal has awarded Rs. 10,000/- towards injury, pain and suffering which is definitely on the lower side having regard to the nature of injuries sustained by the claimant. Ends of justice will be met, if an amount of Rs. 30,000/- awarded under the head ''injury, pain and suffering'' as against Rs. 10,000/- awarded by the Tribunal.

Taking note of the medical evidence especially the evidence of PW-2 - Dr. Basavaraj H. Dodamani, the Tribunal has rightly taken the disability of the whole body as 8%. But the Tribunal has committed an error while taking the income of the claimant as Rs. 3,000/- per month. Since, the accident is of the year 2008, it would be appropriate on my part to take the monthly income at the rate of Rs. 4,250/-. In that case, the loss of ''future income on account of disability'' would come to Rs. 65,280/-. So an amount of Rs. 65,280/- is awarded under the head loss of future income'' on account of disability as against Rs. 46,000/- awarded by the Tribunal.

The Tribunal based on the medical bills produced by the claimant, has rightly awarded Rs. 4,000/- under the head ''medical expenses''. The Tribunal has awarded a sum of Rs. 10,000/- under the head ''loss of amenities'' which appears to be on the lower side. I am inclined to award a sum of Rs. 20,000/- towards loss of amenities as against Rs. 10,000/- awarded by the Tribunal. Further, the Tribunal has not awarded any amount under the head loss of income during the period of treatment''. It goes without saying that on account of accidental injuries, the claimant must have been prevented from attending to his work at least for a period of two months and thereby he lost his earning. So an amount of Rs. 8,500/- is awarded under the head loss of earning during the period of treatment''. The tribunal has also not awarded any amount towards ''attendant charges'', ''conveyance charges'' and other ''incidental charges''. As such, it would be just and proper to award a sum of Rs. 5,000/- towards ''attendant charges'', ''conveyance charges'' and other incidental charges''. Thus the claimant is award a total compensation of Rs. 1,32,780/- as against Rs. 70,000/- awarded by the tribunal. There shall be enhancement of Rs. 62,780/-.

So far as liability to pay compensation is concerned, the Tribunal taking note of the fact that the driver had no valid and effective driving licence to drive maxi cab as on the date of the accident, has come to the conclusion that the Insurance Company is not liable to indemnify the owner. At this stage, it has to be stated that in another claim arising out of the very same accident, the award passed against the Insurance Company is already satisfied. In that case, it is not proper on the part of the Insurance Company to discriminate the victim of the very same accident. Moreover, the licence particulars of the driver would disclose that he had driving licence to drive both the transport and non-transport vehicle. Though as on the date of the accident, his licence to drive transport vehicle had expired he was not disqualified from obtaining or renewing his transport licence. Therefore taking note all these facts and circumstances and that another award arising out of very same accident is already satisfied by the Insurance Company, it would be in the ends of justice, to direct respondent No. 2 to indemnify the owner of the vehicle and deposit the compensation amount within a period of two months from the date of receipt of copy of the order.

Hence, I proceed to pass the following

"ORDER

i) Appeal is allowed-in-part.

ii) The judgment and award dated 16.2.2010 passed in MVC. No. 70/2009 on the file of the Civil Judge (Sr. Dn.) and Member, Addl. MACT, Ramdurg stands modified. The appellant-claimant is awarded enhanced compensation of Rs. 62,780/- over and above the compensation awarded by the tribunal with 9% interest from the date of petition till the date of realisation.

iii) Respondent No. 2 is directed to indemnify the owner of the vehicle and deposit the compensation amount within a period of two months from the date of receipt of copy of this order.

In the event of deposit, entire compensation amount shall be released to the claimant.

INM. F.A. No. 24281/2010

This appeal is directed against the judgment and award dated 05.08.2010, passed in M.V.C. No. 2375/2008, on the file of the Addl. Senior Civil Judge, Saundatti at Saundatti.

By the impugned judgment and award, the Tribunal awarded total compensation of Rs. 46,910/- to the claimant from the respondent Nos. 1 and 2 the owner and the insurer of the Maxi Cab which caused the accident and called upon the Insurance Company to deposit the awarded amount. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant-claimant is before this Court.

Ex. R1 is an endorsement issued by the office of the RTO, Bailhongal dated 18.12.2009 in respect of the driving particulars of the driver Ramanna Kakappa Hosamani which reveals that he had transport licence for a period running from 24.11.2005 to 26.04.2008 and non transport licence for the period running from 27.04.2005 to 26.04.2010. Thus, from the endorsement, one thing is evidence that as on the date of accident i.e. on 29.07.2008 his transport licence had expired meaning thereby he had no licence to drive the transport vehicle nor had applied for renewal of the transport licence.

Ex. P5 - the wound certificate discloses the following injuries sustained by the claimant:

"1) Cut lacerated wound over left knee joint bone deep.

2) Tenderness over left thumb.

3) Tenderness over jaw."

The Tribunal taking note of the aforesaid injuries sustained by the claimant awarded a sum of Rs. 16,000/- towards the mobility 8 teeth, Rs. 20,000/- towards pain and sufferings, Rs. 8,910/- towards the medical expenses, Rs. 2,000/- towards food, conveyance and other incidental charges. It appears that the Tribunal has taken into account the mobility of 8 teeth only. In due course of time, the claimant looses all the 8 teeth. In that event, compensation of Rs. 16,000/- awarded by the Tribunal seems to be on the lower side. So, I deem it just and proper on my part to award a sum of Rs. 25,000/- under the head loss of 8 teeth.

The Tribunal has awarded a sum of Rs. 20,000/- under the head pain and suffering. It appears that in the accident, the claimant sustained injuries on the face and in the process, his 8 teeth affected. It goes without saying that he underwent acute pain and suffering on account of the said injuries. So an amount of Rs. 25,000/- would be just compensation under the head ''pain and suffering'' as against Rs. 20,000/- awarded by the Tribunal. The amount of Rs. 8,910/- awarded by the Tribunal towards medical expenses is based on the medical bills produced by the claimant and therefore, the question of interference by this Court does not arise. However, the amount of Rs. 2,000/- awarded by the Tribunal under the head ''food, conveyance and other incidental charges'' appears to be on the lower side. So, I am inclined to award a sum of Rs. 5,000/- under the said head as against Rs. 2,000/- awarded by the Tribunal.

In due course, the claimant who is aged about 21 years is likely to loose all the 8 teeth. Since he was aged about 21 years and still bachelor definitely it will come in the way his marriage prospects. At the same time, it would cause inconvenience to him in his future life to some extent. Therefore, to compensate the same, I hereby award a sum of Rs. 8,000/- under the head loss of future amenities''.

Thus, the claimant is held entitled for the compensation under various heads as under:

In all, the appellant/claimant is held to be entitled for a total compensation of Rs. 71,910/- as against Rs. 46,910/- awarded by the Tribunal. There shall be enhancement of Rs. 25,000/-. Accordingly, I proceed to pass the following:

"ORDER

(i) The appeal is partly allowed. The judgment and award dated 05.08.2010 passed in M.V.C. No. 2375/2008 on the file of the Addl. Senior Civil Judge, Saundatti, stands modified awarding enhanced compensation of Rs. 25,000/- over and above the compensation awarded by the Tribunal together with 6% interest from the date of petition till the date of realisation from respondent Nos. 1 and 2 jointly and severally.

(ii) Respondent No. 2-Insurance Company is directed to deposit the enhanced compensation amount together with interest in the event of deposit the entire compensation shall be released to the claimant/appellant.

(iii) Regarding the liability to pay the compensation, the Insurance Company has taken up a contention that the driver of the Maxi Cab had no valid and effective driving licence as on the date of accident."