SURESH v. LOKESHAGOUDA — 1997 DIGILAW 53 (KAR)

HARI NATH TILHARI, J. ( 1 ) THIS Appeal is filed by the injured from the Judgment and Award dt. 1-4-1991 in M. V. C. No. 363 of 87. The Tribunal has in total awarded a sum of Rs. 23,000/- as compensation to the Claimant-Appellant, the details of which are as under :-a) Rs. 20,000/- towards pecuniary loss, pain and sufferings and loss of amenities, enjoyment of life and temporary disability. b) Rs. 2000/- for medical and other expenses. c) Rs. 1000/- for engaging motor car to Puttur. Thus in total compensation of Rs. 23,000/- has been awarded as mentioned above by the Tribunal. ( 2 ) THE brief facts of the case are that the Claimant on 12-5-1987 was going on cycle and he was on the left side of the road. According to the claimant's case a Tractor bearing No. MYH 7345 and trailor bearing No. 7346 being driven by its driver that is Respondent No. 1 was coming in a rash and negligent manner from cross road from the left side and dashed against the petitioner who was cycling on the left side of the road. The claimant in that accident sustained injuries including the fracture on leg and injuries on other parts of the body. According to the claimant's case his bicycle was damaged and he was immediately taken to Mallegowda General Hospital, Chickmagalur. The Claimant-appellant was treated as an inpatient for twenty days and thereafter was discharged with the advice to get the treatment with a bone specialist at Rajapalay, Andhra Pradesh. The claimant's case is that he suffered permanent disability, loss of Education for one year. He further alleged that he has incurred expenditure to the tune of Rs. 12,000/- towards treatment and also claimed damages for the cycle. It was stated in the Claim Petition that Respondent No. 1 was the Driver of the Tractor and Trailor and Respondent No. 2 was the owner of the Tractor and Trailor and Respondent No. 3 was the Insurance Company with which the Trailor and Tractor both were insured. The Claimant claimed the compensation in the tune of Rs. 1,50,000/ -. ( 3 ) THAT on notice being issued to the Owner and the Driver absented themselves and the case proceeded against them ex parte. The Claimant claimed the compensation in the tune of Rs. 1,50,000/ -. ( 3 ) THAT on notice being issued to the Owner and the Driver absented themselves and the case proceeded against them ex parte. Insurance Company contested the claim petition but it admitted that the Tractor and Trailor were insured with the Respondent No. 3 and that liability was subject to the terms and conditions of the Policy. The company did not admit that the claimant was injured in the accident and denied the expenses alleged to have been borne by the claimant. The Company further alleged that the compensation claimed is exhorbitant. It has also stated that Respondent No. 2 has not produced the driving licence for verification also there is contravention of the terms and conditions of the policy, hence claim against insurance company is liable to be dismissed. ( 4 ) ON the pleadings of the authorities, the Tribunal framed the following issues :a) Does guardian of the petitioner prove that the petitioner Suresh sustained injuries in the Motor accident that took place on 12-5-87 at about 7 a. m. near Kudlur village, as a result of rash and negligent driving of a tractor No. MYH 7345 and Trailor No. MYH 7346 by the 1st respondent?b) Is the petitioner entitled for compensation, if so, to what amount and from whom?c) What order? ( 5 ) IN order to prove his case the claimant examined himself as PW 1 and produced one Sri D. Kiran Kalaiah, as PW 2 and filed about 59 documents. The respondents did not lead any evidence. On the basis of the material on record the Tribunal held that evidence and material on record clearly establishes that the claimant was knocked down by the Tractor in a rash and negligent manner of driving by the Respondent No. 1 and that claimant suffered the injuries, and the record proves the negligence on the part of the Respondent No. 1 in driving the Tractor and Trailor. The Tribunal further found that apart from abrasion and lacerated wounds, the claimant's both the bones of the leg near ankle joint were fractured. There was fracture of lower and left ankle. The Tribunal awarded compensation of Rs. 23,000/- to the claimant as mentioned in the earlier part of this Judgment. The Tribunal further found that apart from abrasion and lacerated wounds, the claimant's both the bones of the leg near ankle joint were fractured. There was fracture of lower and left ankle. The Tribunal awarded compensation of Rs. 23,000/- to the claimant as mentioned in the earlier part of this Judgment. ( 6 ) HAVING felt dissatisfied with the award of the Tribunal, the Claimant has come up in Appeal before this Court under Sec. 173 of the Motor Vehicles Act, 1988. ( 7 ) I have heard Sri D. N. Katti, holding brief for Sri. Veeresh B. Patil learned counsel for the appellant and as well as Sri K. K. Vasant Counsel for Respondent No. 2 and Sri. S. K. V. Chalapathy, counsel for Respondent No. 3. It had been brought to my notice that Respondent No. 1 driver of the vehicle has died and nobody has been brought on record in his place. It has been alleged by the learned counsel for the respondents that Appeal may be dismissed as having abated. ( 8 ) LEARNED counsel for the appellant replied and submitted that prima facie liability for payment is of the owner, as Master is responsible for the act of the servant and of the Insurance Company and such as owner of vehicle, Insurance Company being on record, decree passed in appeal subsists and so entire appeal is not to abate. The Insurance Company has taken the liability to pay the amount decreed jointly and severally and therefore claim for enhancement can be considered with reference to the owner of the vehicle who is primarily liable to pay the amount. The Insurance Company is also there to reimburse the owner. The Driver is an employee of Respondent No. 2 and evidence is that there was rash and negligent driving by him. The Insurance Company being also liable to the extent the liabilities covered by the Policy, in my opinion abatement of the Appeal against the Driver on account of his death will not affect the maintainability of appeal in view of the fact that substantive responsibility of payment of Compensation awarded is of owner of Vehicle and along with that it will be of Insurance Company. Even if the insured (owner) would have died cause of action for claim or enhancement of claim against the estate of insured and against the Insurance Company would have survived u/s. 155 of the Motor Vehicles Act 1988 Section 155 of Act 1988 reads as under :"notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (39 of 1926), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer. "thus there is no force in this contention of objection of respondent. The contention of respondent is rejected. Thus the Appeal survives for decision on merits. ( 9 ) THE main contention of the learned counsel for the appellant that compensation awarded is too low as well as insufficient and the amount has been fixed ignoring the material of evidence on record. Learned counsel for the appellant submitted that as regards the conveyance charges, Ex. P-5 has been provided which is for a sum of Rupees 2000/- the appellant has proved it. He submitted that Rs. 2000/- should be awarded for conveyance charges and not Rs. 1000/ -. Learned counsel further submitted that Exs. 4 to 22 are the cash receipts filed by the appellant, and the Tribunal concerned has committed mistake in not awarding the amount of Compensation towards medical and other expenses as claimed. Learned counsel for the appellant further submitted that evidence of P. W. 2 also indicates that appellant has suffered fracture of two bones of the left leg. However it is in the evidence of PW. 1 that left leg is shortened by inch or so. So he is unable to run and he will suffer the disability for whole life apart from other injuries. A compensation of 75,000/- at least should have been awarded for injuries, pains and suffering and loss of amenities etc. These contentions of the learned counsel for the appellant have broadly been contested. In my opinion the compensation that has been awarded no doubt is insufficient and inadequate. A compensation of 75,000/- at least should have been awarded for injuries, pains and suffering and loss of amenities etc. These contentions of the learned counsel for the appellant have broadly been contested. In my opinion the compensation that has been awarded no doubt is insufficient and inadequate. In my opinion looking into the age of the boy who was aged 16 at the time of occurrence and another factor that he will have to bear the (sic) of defect of the leg for whole life. I think proper compensation in this case due to pain and suffering, pecuniary loss and incapacity to run etc. , would be Rs. 35,000/ -. As regards medical expenses, claimant has alleged that Rs. 15,000/- has been spent. In claim petition, claim was made for Rs. 12,000/- for medical and other expenses. I think the proper sum to be awarded towards medical expenses, would be Rs. 7500/- and towards nourishment and shelter, it would be proper to award a sum of Rs. 2000/ -. That Ex. P. 45 produced by the appellant as mentioned in the Judgment also indicates that Rs. 2000/- were spent towards hiring of the Car. The Tribunal has said that Ex. P. 45 has been examined and on that basis it is said that Car has been engaged, so it awarded Rs. 1000/ -. I think it has taken a too technical view. Therefore, Rs. 2000/- are awarded towards expenditure of engaging the Car to take the person to Puttur. Thus award is modified and appeal is allowed in part. The appellant claimant to be entitled to get the Compensation as under : @@ (a) For non-pecuniary loss, namely pain and sufferings, loss of future prospects, loss of amenities and enjoyment of life. . . . . . Rs. 35,000/- (b) For medical expenditure, attendant. . . . . . . . . 7,500/- (c) For engaging Car. . . . . . . . . . . 2,000/- (d) For Nourishment and accommodation etc. . . . . . . . . . 2,000/-@@ ( 10 ) THUS a total sum of Rs. 46,500/- is being allowed as compensation (sic ). Thus the award given by Tribunal is being modified as above. The enhanced amount will also carry on interest at the rate as awarded by the Tribunal. Thus the Appeal is allowed in part. Appeal partly allowed. . . . . . 2,000/-@@ ( 10 ) THUS a total sum of Rs. 46,500/- is being allowed as compensation (sic ). Thus the award given by Tribunal is being modified as above. The enhanced amount will also carry on interest at the rate as awarded by the Tribunal. Thus the Appeal is allowed in part. Appeal partly allowed. --- *** --- .