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Judgment
B. Sreenivas Gowda, J.—MFA No. 4161/2011 is by the Insurer of offending vehicle challenging the judgment and award of the Tribunal on the ground of liability.
MFA No. 5368/2011 is by the claimant seeking enhancement of compensation awarded by the Tribunal.
As these two appeals are arising out of a common judgment and award of the Tribunal, with the consent of learned Counsel appearing for the parties they are heard together and disposed of finally by this common judgment.
For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 4.12.2008 due to rash and negligent driving of the Honda CRV Car bearing Reg. No. KA-03-MC-4758 by its driver, the points that arise for my consideration are:
"1. Whether the finding of the Tribunal on liability is sustainable in law?
Whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for enhancement?"
Sri Jagadeesh appearing for Sri P.B. Raju, learned counsel for the insurer, submits in spite of the insurer of the offending car producing an endorsement issued by the jurisdictional RTO to the effect that the licence furnished by the driver of the offending car to the police was not issued by the RTO office and it is a fake licence, the Tribunal has committed an error in fastening the liability on the insurer holding that the insurer has not examined the author of the endorsement. Therefore, he submits the finding of the Tribunal in respect of liability may be modified and liability may be fastened on the owner of the vehicle.
On the other hand, Sri Gurudevaprasad, learned counsel appearing for respondent No. 1 submits there is no illegality or irregularity in the finding of the Tribunal in respect of liability. However, he submits the compensation awarded by the Tribunal is on the lower side and prays for allowing the appeal filed by the claimant by enhancing compensation and dismiss the appeal filed by the Insurer.
Regarding Point No. 1: The insurer of the offending car apart from contending in their statement of objections filed in the claim petition that the driver had no licence to drive the offending car as on the date of accident had produced an endorsement issued by the concerned RTO to the effect that the licence available in the police records which was produced by the Insurer and marked as Ex. R2 is a fake licence. The owner, who is arrayed as respondent No. 1 in the claim petition though was served with the notice of the claim petition neither choose to appear before the Tribunal nor filed statement of objections nor adduced evidence to show that he allowed the car to be driven by the person having valid licence to drive it as on the date of accident. If that is so, the Tribunal would have directed the insurer to pay the compensation awarded to the claimant with a right to recover it from the owner. Accordingly, the finding of the Tribunal on liability is modified.
Now, we have to see whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for interference.
As per Ex. P8-wound Certificate, the claimant has sustained the following injuries:
"i. Abrasion over back
ii. bleeding from nose
iii. CLW over nose
iv. Burst fracture of L4 vertebra with retropulsion of fracture fragments in canal causing moderal the cal sac compression
v. minimal bulge of L3, L4, L5
vi. fracture of left lower ribs"
Injuries sustained and treatment taken by the claimant are also evident from Exs. P10, 13 and 15 - Discharge summaries, Ex-P18- case sheets, Exs. P19 and 23-X-rays and Ex. P21 Inpatient record and supported by oral evidence of the claimant and two doctors who were examined as P.Ws. 3 and 4 respectively. PW3-doctor has produced the case sheet of the hospital where claimant had taken treatment. PW4 in his evidence has stated claimant has suffered 10% disability to the whole body.
Considering the nature of injuries sustained by the claimant, a sum of Rs. 50,000/- is awarded towards pain and sufferings as against Rs. 30,000/- awarded by the Tribunal.
Claimant has produced medical bills and prescription amounting to Rs. 1,69,232/- to substantiate her contention that she has spent huge amount i.e., Rs. 5,00,000/- towards treatment and other incidental charges. As against Rs. 1,50,000/- awarded by the Tribunal Rs. 1,70,000/- is awarded towards medical expenses taking into account the medical bills and prescription produced by the claimant.
Claimant was treated as inpatient for 20 days at Shushrusha Nursing Home and Columbia Asia Hospital, Bangalore. Considering the same, a sum of Rs. 25,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs. 15,000/- awarded by the Tribunal.
Claimant claims to have been earning Rs. 10,000/- p.m. by working as a Tailor but the same has not been substantiated by her. In the absence of production of proof of income, considering the age of claimant as 34 years, year of accident as 2008 and her avocation as daily wager, her income can be easily assessed at Rs. 4,000/- p.m. as against Rs. 3,000/- assessed by the Tribunal. The nature of injuries sustained would suggest that she must have taken rest and treatment for about four months. Therefore, a sum of Rs. 16,000/- is awarded towards loss of income during laid up period as against Rs. 12,000/- awarded by the Tribunal.
Considering the nature of injuries sustained, disability assessed by the Doctor and an amount of discomfort and unhappiness he has to undergo in his future life, a sum of Rs. 15,000/- awarded by the Tribunal towards loss of amenities and unhappiness is just and proper and there is no scope for enhancement.
The Income of the claimant is now assessed at Rs. 4,000/- per month, the disability stated by the Doctor to whole body is 10%, the multiplier applicable is "16". Hence, loss of future income works out to Rs. 76,800/- ( Rs. 4,000 x 10/100 x 12 x 16) as against Rs. 57,600/- awarded by the Tribunal. A sum of Rs. 16,000/- is awarded towards future medical expenses as against Rs. 8,000/- awarded by the Tribunal.
Thus, the claimant is entitled for the following compensation:
The judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for a total compensation of Rs. 3,68,800/- as against Rs. 2,87,600/- awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 81,200/- from the date of claim petition till the date of realisation.
The owner of the offending vehicle is directed to pay enhanced compensation with interest at 6% p.a. within two months from the date of receipt of a copy of this judgment and the same is ordered to be released in favour of the claimant.
The Insurer is directed to deposit the enhanced compensation with interest at 6% p.a. within two months from the date of receipt of a copy of this judgment with a right to recover from the owner of the vehicle.
Amount in deposit in the appeal of the Insurance Company is ordered to be transmitted to the Tribunal for disbursement.
Accordingly, both the appeals stands disposed of.