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Judgment
B. Sreenivas Gowda, J—These appeals are by the insurer of offending vehicle challenging the judgment and awards passed by the Tribunal on the ground of liability and quantum.
As all these appeals are arising out of a common road traffic accident and a common judgment of the Tribunal, with the consent of the leaned counsel appearing for the parties, these appeals are heard together and disposed of finally by this common judgment.
As there is no dispute regarding certain injuries sustained by the claimants in a road traffic accident occurred on 15.11.2006 due to rash and negligent driving of a Maruti Omni bearing registration No. KA-08/MD-8308 by its driver, the points remain for consideration in these appeals are:
"1. Whether the finding of the Tribunal on liability in fastening the same on the insurer of the offending vehicle is sustainable in law?
Whether the quantum of compensation awarded in each case is just and reasonable or does it call for reduction?"
Regarding liability, learned counsel appearing for the insurer of offending vehicle fairly submits in view the circular dated 16.11.2009 issued by the IRDA covering the risk of occupants traveled in a four wheeler insured under the package policy, he does not press the appeals on the ground of liability. His submission is placed on record and accordingly the finding of the Tribunal on liability is confirmed.
Regarding quantum:
In order to find out whether the compensation awarded by the Tribunal in each case is just and reasonable or not, the same is re-determined as under;
MFA 31256/2009 is arising out of MVC No. 45/2007. Injured claimant in this case is one Smt. Nalini. As per Ex. P.7 discharge summary she had sustained following injuries;
"i) Lacerated wound on the eyelid of right eye,
ii) Deep wound on right forehead and swelling in the right eye."
She was treated as inpatient for four days at Regional Neuro Science Centre, Bijapur. Considering the nature of injuries sustained by the claimant a sum of Rs. 15,000/- is awarded towards pain and suffering.
The claimant though has stated she has spent Rs. 75,000/- towards medical and incidental expenses, has not produced any bills. In the absence of production of bills, Rs. 5,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and there is no scope for reduction under these heads.
In the absence of proof of income, considering her age as 60 years, year of accident as 2006 and avocation as Homemaker, her income could be easily assessed at Rs. 3,500/- per month. Nature of injuries suggests she must have been under rest and treatment for a period of one month therefore, a sum of Rs. 3,500/- is awarded towards loss of income during laid-up period.
Considering nature of injuries sustained by the claimant, disability stated by the doctor at 15% to the upper limb is nothing but an exaggeration. Even otherwise, as per the said disability, disability as to the whole body comes less than 4% which disability would not have any impact on the future earning of the claimant. Therefore, justice would be met if a sum of Rs. 10,000/- is awarded towards loss of amenities and it is awarded.
Thus, she is entitled for the following compensation:
Hence, the compensation awarded by the Tribunal is reduced to 33,500/-.
MFA No. 31255/2009 is arising out of MVC No. 44/2009. Injured claimant in this case is one Priya. As per Ex. P.5 wound certificate, claimant has sustained following injuries;
"i) Fracture of both bones of left arm on clinical examination.
ii) Fracture of both bones of left leg on clinical examination.
iii) Abrasion over both knee joint.
iv) Punctured wound over the left arm 1/2 cm. Bleeding present."
Opinion kept pending as patient has gone against medical advise to higher centre.
It is to be noted that question mark is put before injury Nos. 1 and 2. Claimant was not subjected to X-ray. It is strange that in the District Government Hospital, Bijapur doctor puts question mark before writing fracture of both bones of left forearm on clinical examination and fracture of both bones of left leg on clinical examination. X-ray produced at Ex. P.12 discloses claimant had sustained fracture of Ulna and other simple injuries. Therefore, disability stated at 30% to 35% to upper limb is nothing but an exaggeration. Considering the nature of injuries sustained by the claimant a sum of Rs. 25,000/- is awarded towards pain and suffering.
In the absence of production of bills regarding amount spent for medical and incidental expenses, Rs. 5,000/- awarded by the Tribunal is just and proper and there is no scope for reduction.
In the absence of proof of income, considering the age of claimant as 25 years, year of accident as 2006 and avocation as daily wager, her income could be easily assessed at Rs. 3,500/- per month. Nature of injuries suggests she must have been under rest and treatment for a period of three months therefore, a sum of Rs. 10,500/- is awarded towards loss of income during laid-up period.
Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness that she has to suffer in her future life, a sum of Rs. 15,000/- is awarded towards loss of amenities.
P.W. 4 Dr. A.A. Maagi, without subjecting the claimant into clinical and radiological examination has stated that the claimant has suffered disability at 30 to 35% for fracture of ulna. Said disability stated by the doctor for fracture of ulna is an exaggeration. Considering this, disability caused to whole body is taken at 5%. Her income now is assessed at Rs. 3,500/- per month. The multiplier applicable to the age group of the claimant is 17. So loss future income works out to Rs. 35,700/- (3,500 X 5/100 X 12 X 17) and it is awarded.
Thus, the claimant is entitled for the following compensation:
Thus, claimant is entitled for Rs. 91,200/- as against Rs. 1,06,400/- awarded by the Tribunal. Therefore, the compensation awarded by the Tribunal is reduced to Rs. 91,200/-.
MFA 31257/2009 is arising out of MVC No. 9/2008. Claimant in this case is one Srinivas Narayan Patil.
As per Ex. P.8 wound certificate, he has sustained fracture of both bones of right forearm; fracture of both bones of left forearm near wrist; minor abrasions over both the wrists. In the opinion column it is stated, opinion cannot be given because patient has gone to higher centre by request and X-ray not taken. X-ray produced at Ex. P.12 would show fracture of ulna and radius. P.W. 4 Dr. A.A. Maagi has stated that claimant has suffered disability of 25 to 40%.
Considering the nature of injuries sustained by the claimant, a sum of Rs. 30,000/- awarded by the Tribunal towards pain and suffering is just and reasonable.
In the absence of production of medical bills regarding amount spent towards medical and incidental expenses, a sum of Rs. 10,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper.
In the absence of proof of income, considering his age as 68 years, year of accident as 2006 and avocation as daily wager, his income could be easily assessed at Rs. 3,500/- per month. Nature of injuries suggests he must have been under rest and treatment for a period of three months therefore, a sum of Rs. 10,500/- is awarded towards loss of income during laid-up period.
Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness that he has to suffer in his future life, a sum of Rs. 25,000/- is awarded towards loss of amenities as against Rs. 10,000/- awarded by the Tribunal under this head.
As per the disability stated by the doctor at 25% to 40% to limb, the disability caused to the whole body comes to 10%. The multiplier applicable to his age group is 5. His income is now assessed at Rs. 3,500/- per month. So loss of future income works out to Rs. 21,000/- (3,500 X 10/100 X 12 X 5) and it is awarded.
Thus, he is entitled for the following compensation:
Thus, claimant is entitled for Rs. 96,500/- as against Rs. 1,04,000/- awarded by the Tribunal. Therefore, the compensation awarded by the Tribunal is reduced to Rs. 96,500/-.
Accordingly, appeals are allowed in part and the Judgment and awards passed by the Tribunal are modified.
Finding of the Tribunal on liability is confirmed. Compensation awarded by the Tribunal is reduced as mentioned against each case.
Insurance company is directed to pay reduced compensation mentioned against each appeal with interest @ 8% per annum as has been awarded by the Tribunal within two months from the date of receipt of a copy of this judgment. Deposit and release of the compensation will be in the ratio of the award of the Tribunal.
Amount in deposit is ordered to be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal.
Draw up the award accordingly.
No order as to costs.