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Judgment
B. Sreenivas Gowda, J—MFA No. 30873/2009 is filed by the insurer challenging the judgment and award passed by the Tribunal on the ground of liability, whereas, MFA CROB No. 1037/2009 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.
As this appeal and cross objection are arising out of a common judgment and award of the Tribunal, with the consent of the learned Counsel appearing for the parties, they are heard together and disposed of by this common judgment.
As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 20-03-2006 due to rash and negligent driving of Tom Tom auto bearing registration No. KA-32/A-581 by its driver, the only points that remain for consideration are:
"i) Whether finding of the Tribunal on liability in fastening the same on the insurer of offending vehicle is sustainable in law?
ii) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"
Sri. Sudarshan M, learned Counsel appearing for the insurer of offending vehicle submits, the offending vehicle having allowed to be driven beyond the permit limit, insurer is not liable to indemnify the owner and pay compensation to the claimant. He further submits, the offending vehicle is a goods vehicle. The claimant having travelled in the offending vehicle as unauthorised occupant, his risk is not covered under the policy. The Tribunal without considering the same has committed an error in fastening liability on the insurer of the offending vehicle. Learned Counsel without prejudice to his above contention submits, Rs. 1,00,000/- awarded by the Tribunal towards loss of expectancy of life is not proper, consequently compensation awarded is on the higher side and there is no scope for enhancement of compensation. Therefore he prays for allowing the appeal filed by the insurer and dismissing the cross objection filed by the claimant.
Sri. Babu H.Metagudda, learned Counsel appearing for the claimant submits, there is no infirmity or illegality in the finding of the Tribunal on liability in fastening the same on the insurer of offending vehicle, warranting interference of this Court. Regarding quantum he submits, claimant had sustained fracture of backbone and he is suffering from paraplegia. Hence, compensation awarded is on the lower side and therefore, he prays for allowing the cross objection filed by the claimant by enhancing the compensation and dismissing the appeal filed by the insurer.
Regarding liability :
The insurance company which was arrayed as second respondent in the claim petition before the Tribunal in its statement of objections has contended, the alleged vehicle is not insured with them. They further contended, owner of the vehicle has not reported the accident and injuries sustained to any person. The claimant having admitted in the claim petition that at the material time of the accident, he was travelling in the vehicle which is not permitted to run beyond the permit limit, therefore petition against the insurance company may be dismissed as violation of permit conditions. As per the grounds urged in the appeal, the insurer denied their liability on the ground that offending vehicle is a goods vehicle and claimant admittedly having travelled in the offending vehicle as an unauthorised passenger, his risk is not covered under the policy.
In the appeal, appellant has not disputed the insurance of the offending vehicle with their company and fairly submits, policy was in force as on the date of accident. If so, we have to consider the second contention of the insurance company taken in the written statement - whether offending vehicle was driven beyond the permit limit. In order to consider this contention, the insurer either in their statement of objections or in their evidence have not stated what is the seating capacity of the vehicle and how the occupation of the claimant at the time of accident becomes beyond the permit. On the other hand, it is their case in the appeal that the offending vehicle is a goods vehicle and claimant having travelled in the said vehicle as an unauthorised passenger, his risk is not covered. Such a contention is not taken by the insurance company in their objections filed in the claim petition before the Tribunal. On the other hand, though in Ex. P. 4 - insurance policy, the offending vehicle is described as goods vehicle, whereas in Ex. P.6 - motor vehicles accident report, nature of vehicle is shown as minidor tom tom. It is to be noted, minidor tom tom may be a transport vehicle or it may be a passenger vehicle. In Ex. P.7 - R.C. book, nature of vehicle is not stated. In Ex. P.8 - permit, nature of vehicle is shown as motor cab which is a passenger vehicle, wherein maximum number of passengers permitted to be carried is mentioned as 5+1. This goes to show that the offending vehicle is a passenger vehicle. Considering this material aspect of the matter, the Tribunal was justified in fastening the liability on the insurer of the vehicle. Point No. 1 is answered accordingly.
Regarding point No. 2 :
As per Ex. P. 20 - medical certificate issued by Prayavi Hospital, claimant was admitted on 20-03-2006 with history of road traffic accident and as per the said certificate, he had sustained grievous injuries over the cervical lumbar sacral region and he was referred to higher centre on 23-03-2006.
As per Ex. P.14, he was admitted to S.P. Institute of Neurosciences on 23-03-2006, and was discharged on 04-05-2006 and he was treated in the said hospital for about 41 days.
As per Ex. P.19 - patient''s summary issued by Dr. Chitale Private Clinic, he was admitted to the said hospital on 09-07-2007 and discharged on 10-07-2007. History of injury was diagnosed as cervical spine fracture.
Injuries sustained and treatment taken by the claimant are also evident from Ex. P. 18 - photographs with negatives and supported by oral evidence of the claimant and doctor examined as P.Ws. 1 and 2 respectively.
P.W.2 - Dr. Ranjeet Baliram Bohite, in his examination in chief has stated, he is working as Resident Medical Officer in S.P. Institute of Neurology, Solapur, and he has stated, claimant was admitted to their Hospital on 23-03-2006 with the following injuries :
"a) All his our limbs grade zero
b) His MRI cervical spine done shows, C-5 over C-6, subluxation with some rotational climent, disc extrasion at C-5/6 with cord compression, cord odema/contusion extending from C.2 to C.7."
During his admission in their hospital, claimant has undergone various operations. Both his legs were grade zero and he has no sensation below waist region. According to P.W.2, claimant is having following disabilities :
"1) Motor system disability paraplegia - 100%
2) Sensory system disability for involvement of feet/hands - 25%
3) Bladder disability due to neurogenic involvement very severe - 100%"
Nothing worth is elicited from his cross examination.
Considering nature of injuries sustained by the claimant, Rs. 1,50,000/- awarded by the Tribunal towards pain and suffering is just and proper and there is no scope for enhancement under this head.
As Rs. 3,00,000/- awarded by the Tribunal towards medical expenses is as per medical bills produced by the claimant at Exs. P. 14, P. 15 and P. 16, it is just and proper and there is no scope for enhancement under this head.
He was treated as inpatient for about 45 days at Prayavi Hospital, S.P. Institute of Neurosciences and at Chitale Private Clinic. Considering the duration of treatment as inpatient, Rs. 20,000/- awarded by the Tribunal towards incidental expenses such as, conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.
Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, Rs. 1,50,000/- awarded by the Tribunal towards loss of amenities is just and proper and there is no scope for enhancement.
Photographs of the claimant produced at Ex. P.18 would show, claimant is bedridden and he needs an attendant for the rest of his life. Therefore, a sum of Rs. 1,00,000/- is awarded towards future medical and incidental expenses as against Rs. 50,000/- awarded by the Tribunal under this head.
Claimant has stated, he was studying and has produced Ex. P. 10 - provisional National Trade Certificate to that effect. According to Ex. P.10, he had done vocational training in Fitter from ITC Bhalki, from 2002 upto July, 2004. Accident had occurred on 20-03-2006 and no document was produced as to what he was doing after completion of his training in July 2004 up to 20-03-2006 the year in which accident has occurred. Therefore, in the absence of proof of income, considering his age as 20 years, year of accident as 2006, his income could be assessed at Rs. 4,000/- per month as against Rs. 1,000/- assessed by the Tribunal. Functional disability taken by the Tribunal at 100% is just and proper. Multiplier applicable to the age group of the claimant is `18''. Therefore, loss of future income works out to Rs. 8,64,000/- (Rs. 4,000/- x 12 x 18) and it is awarded as against Rs. 2,16,000/- awarded by the Tribunal under this head.
In view of awarding compensation towards loss of future income by considering disability at 100%, awarding compensation towards loss of income during laid up period or towards loss of expectation of life is not proper. Therefore, Rs. 1,00,000/- awarded towards loss of expectation of life is disallowed.
Thus, he is entitled for the following compensation:
Accordingly, MFA No. 30873/2009 filed by the insurer is dismissed as devoid of merit.
MFA CROB 1037/2009 filed by the claimant is allowed.
Claimant is entitled for an additional compensation of Rs. 5,98,000/- with interest at 6% per annum from the date of claim petition till the date of payment.
The Insurance Co. is directed to deposit the additional compensation amount within two months from the date of receipt of a copy of this judgment. From the enhanced compensation, Rs. 5,00,000/- with proportionate interest is ordered to be invested in F.D. in the name of the claimant in any nationalised/schedule Bank for a period of 5 years, with a right of option to him to withdraw interest periodically and the remaining amount is ordered to be released in his favour.
The Tribunal while releasing the remaining amount is also directed to issue F.D. slip to the claimant, to enable him to withdraw the F.D. amount on its maturity and the Bank in which the deposit is kept, is also directed to release the deposit amount on its maturity, without insisting for an order from the Tribunal.
No order as to costs.