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Judgment
P.D. Waingankar, J.
All these appeals under Section 173(1) of M.V. Act are arising out of the common judgment and award dated 26.10.2007 in MVC No. 7904/1995 and MVC No. 795/1995 on the file of Addl. Civil Judge (Sr. Dn.) and MACT, Gadag.
The brief facts which gave rise to these appeals are as under:-
On 16.4.1994, one Basappa and Shankarappa were proceeding in a tractor-trailor bearing No. KA 26 507 and 508 as labourers from Laxmeshwar to Mulbagal village. On account of rash and negligent driving, the tractor dashed against a trailor that was coming from opposite direction. As a result of the impact, both Basappa and Shankarappa sustained grievous injuries. They filed claim petition in MVC No. 794/1995 and 795/1995 respectively. Both the claim petitions were opposed by the insurer of the tractor and trailer. The claim petitioners ca me up for consideration before the tribunal. The tribunal by the impugned judgment and award awarded a total compensation of Rs. 1,12,500/- in favour of claimant Basappa in MVC No. 794/1995 and Rs. 58,900/- in favour of claimant Shankarappa-claimant in MVC No. 795/1995 and directed the insurance company to indemnify the owner of the tractor and trailer.
Aggrieved by the quantum of compensation awarded in both the claim petitions, claimants Basappa and Shankarappa preferred MFA No. 6893/2008 and MFA No. 6894/2008, whereas, the insurance company has preferred MFA No. 1653/2008 questioning the liability fastened on the insurance company on the ground that the claimants were not covered under the policy, since they were travelling in the tractor and trailer.
Since all these appeals are arising out of the same judgment and award, they are disposed of by this common judgment.
I have heard learned counsel appearing for the appellants-claimants and the insurance company. Though, insurance company preferred appeal questioning the liability fastened on it, during the course of arguments, learned counsel for the insurance company has fairly submitted that in MFA No. 1654/2008, this Court by order dated 2.1.2013, while dealing with the similar question has come to the conclusion that the persons travelling in tractor are covered under the policy. Therefore what remains behind are the appeals filed by the claimants for enhancement of the compensation.
In MVC No. 794/1995, the tribunal awarded a total compensation of Rs. 1,12,500/-. Ex-P3 is the wound certificate of the claimant Basappa, which discloses that he sustained fracture of femur apart from other simple injuries, for which, he was treated as inpatient. The tribunal awarded a compensation of Rs. 20,000/- under the head ''injury, pain and suffering''. No-doubt, the accident had occurred way back in the year 1994. Even then having regard to the fact that femur is a major bone, I deem it just and proper to award a sum of Rs. 25,000/- under the head ''injury, pain and suffering'' as against Rs. 20,000/- awarded by the tribunal. Sofar as, medical expenses is concerned, the tribunal upon perusal of the medical bills, has rightly awarded a sum of Rs. 5,000/- as compensation under the head ''medical expenses''. But the tribunal has not awarded any amount under the head ''loss of earning during the period of treatment''. It goes without saying that on account of fracture of femur bone, the claimant must have been incapacitated from attending to his work atleast for a period of three to four months and thereby he lost his earnings for the said period of four months. Since the accident occurred in the year 1994, the income taken by the tribunal at the rate of Rs. 40/- per day appears to be just and reasonable. As such, the claimant is awarded a sum of Rs. 4,800/- under the head ''loss of earning during the period of treatment'' for a period of four months as against Rs. 1,800/-. The tribunal has not awarded any amount towards ''attendant charges''. Since the claimant had sustained a major fracture of femur bone, he was in need of services of an attendant atleast for a minimum period of three months. So an amount of Rs. 4,500/- is awarded under the head ''attendant charges''. It is also seen from the award that the tribunal has awarded a paltry sum of Rs. 5,000/- under the head ''loss of amenities'', notwithstanding the fact that the claimant had sustained fracture of femur bone. Moreover, the claimant has suffered disability. As such, I deem it proper to award a sum of Rs. 15,000/- under the head ''loss of amenities'' as against Rs. 5,000/- awarded by the tribunal. The amount awarded by the tribunal under the head ''future loss of earnings on account of disability'' of Rs. 80,640/- is just and proper and no interference is called for. Thus the claimant in MVC No. 794/1996 has been held to be entitled for the compensation under the various heads as under:-
Thus the claimant in MVC No. 794/1995 Basappa is awarded a total compensation of Rs. 1,37,000/- as against Rs. 1,12,500/- awarded by the tribunal. There shall be an enhancement of compensation of Rs. 24,500/-.
Coming to the determination of compensation in MVC No. 795/1995, the tribunal has awarded a sum of Rs. 58,900/- as compensation. Ex-P14 the wound certificate discloses that claimant Shankarappa sustained fracture of Calcaneus apart from other simple injuries for which the tribunal has awarded a sum of Rs. 5,000/- as compensation under the head ''injury, pain and suffering''. Ex-P15 is the discharge card issued by KMC hospital, Hubli, which discloses that the claimant was admitted on 16.4.1994 and discharged on 24.4.1994. Having regard to the nature of injuries, period of hospitalisation, in my view, an amount of Rs. 25,000/- would be just compensation under the head ''injury, pain and suffering''. Further, the tribunal has awarded Rs. 4,000/- towards ''medical expenses'' which appears to be just and proper. Hence, no interference is called for. Having regard to the nature of injuries, the claimant must have been prevented from attending to duties for a minimum period of three months and thereby lost his earnings at the rate of Rs. 40/- per day for a period of three months. So an amount of Rs. 3,600/- is awarded towards ''loss of earning during the period of treatment'' as against Rs. 320/- awarded by the tribunal. The tribunal has awarded a meager sum of Rs. 5,000/- towards ''loss of amenities''. The ends of justice will be met, if an amount of Rs. 15,000/- is awarded towards ''loss of amenities'', as against Rs. 5,000/- awarded by the tribunal. The tribunal has awarded a sum of Rs. 34,560/- towards ''loss of future earnings due to disability'', which appears to be just and proper. It is seen from the award, that the tribunal has not awarded any amount under the head ''attendant charge''. So an amount of Rs. 2,000/- is awarded under the head ''attendant charge'' and Rs. 1,000/- under the head ''conveyance charges''. Thus, the claimant-Shankarappa in MVC No. 795/1995 has been held to be entitled to compensation under the various heads as under:-
Thus the claimant in MVC No. 795/1995 is awarded a total compensation of Rs. 85,160/- as against Rs. 58,900/- awarded by the tribunal. There shall be an enhancement of compensation of Rs. 26,260/-.
Accordingly, I pass the following order:-
a. MFA No. 6893/2008 and MFA No. 6894/2008 filed by the claimants are allowed-in-part. The common judgment and award dated 26.10.2007 in MVC No. 794/1995 and MVC No. 795/1995 stands modified. The claimant Basappa in MVC No. 794/1995 is awarded enhanced compensation of Rs. 23,540/- and the claimant Shankarappa in MVC No. 795/1995 is awarded enhanced compensation of Rs. 26,260/- over the above the compensation awarded by the tribunal together with 6% interest thereon from the date of petitions till the date of realisation.
b. The insurance company is directed to deposit the enhanced compensation amount within a period of two months from the date of receipt of copy of this order. In the event of deposit, the entire compensation amount shall be released to the respective claimants.
c. MFA No. 1653/2008 filed by the insurance company is hereby dismissed. The amount in deposit shall be transmitted to the tribunal.
Send the records to the tribunal forthwith.