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2013 DIGILAW 1236 (KAR)

Sadiq Juber Saheb v. Brijesh Marag

2013-10-29

N.K.PATIL, R.B.BUDIHAL

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Judgment : N.K. Patil, J. 1. This is a claimant's appeal against the impugned judgment and award dated 23/11/2010 passed in MVC No.587/2009, by the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Udupi, (for short 'Tribunal'), for enhancement of compensation. 2. By its judgment and award, the Tribunal has awarded a sum of Rs.1,49,200/-under different heads with interest at 8% p.a., from the date of petition till payment as against the claim made by the appellant for a sum of Rs.12,50,000/-, on account of the injuries sustained by him in the road traffic accident. 3. In brief, the facts of the case are: That at about 14.15 hours on 17.2.2009 when the appellant was travelling as a passenger in Maruthi Omni Car bearing Reg.No.KA.47/2034 from Bhatkal towards Honnavar and when the car reached near Hollakali on NH 17, at that time, the driver of the lorry bearing Reg.No.RJ.20/GA/3305 came in a rash and negligent manner from Honnavar towards Bhatkal and lost the control over it, came to extreme wrong side and dashed against the car. As a result, appellant sustained severe injuries. Immediately, he was taken to RNS Hospital, Murudeshwara and then shifted to Chinmayi hospital, Kundapur, where, he took treatment as inpatient from 17.2.2009 to 7.3.2009, undergone surgery on his right leg and he has also taken treatment from Dr. Shantharama Shetty, Mangalore and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment. 4. It is the further case of the appellant that he spent considerable amount towards medical and other incidental charges and on account of the injuries sustained by him, he has suffered permanent disability. The Doctor has assessed the disability at 30% to his right lower limb and at 10% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents. 5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.1,49,200/-as compensation under different heads with interest at 8% p.a., from the date of petition till payment. 6. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation. 7. 6. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation. 7. We have heard the learned counsel appearing for appellant and learned counsel appearing for Insurer. 8. The submission of the learned counsel appearing for the appellant is that, the Tribunal has failed to consider the fact that appellant was aged about 34 years, Fisherman by profession and was hale and healthy prior to the accident and in the accident he has sustained grievous injuries, due to which, he is not in a position to do his work as fishermen while awarding compensation. Further, he submits that, the Tribunal has erred in assessing the income of the appellant at Rs.3,000/- per month which is on lower side and it needs to be reassessed reasonably and that the compensation awarded by the Tribunal under all the heads is inadequate and it requires to be enhanced by modifying the impugned judgment and award passed by the Tribunal. 9. As against this, learned counsel for the Insurer, inter-alia, contended and submitted that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. 10. After hearing learned counsel for the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, it could be seen that, the occurrence of the accident and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that, appellant was aged about 34 years and fisherman by profession. Further, it emerges that, the compensation awarded by the Tribunal towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities and towards loss of future earnings is on lower side and it needs to be reconsidered. 11. Further, it emerges that, the compensation awarded by the Tribunal towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities and towards loss of future earnings is on lower side and it needs to be reconsidered. 11. Admittedly, in the accident, appellant has sustained open laceration 10 x 6 cm over right elbow exposing fracture olecronon, gross effiar over right knee and posterior instability and movements painful and X ray shows fracture of medial femoral condyle and right side hip subluxed movements are painful, decreased sensation in right leg and CT scan shows fracture of right acetabulam with post displacement extending ramus as per wound certificate, Ex.P8, for that, he has taken treatment as inpatient in Chinmayi Hospital, Kundapur from 17.2.2009 till 9.3.2009. and thereafter, he has taken bed rest and follow up treatment. During the said period, he has undergone lots of pain and agony, he might have spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by him as referred above, he has suffered permanent disability. The Doctor has assessed the disability at 30% to the right lower limb and the Tribunal has assessed the disability at 10% to the whole body, which is just and proper and we accept the same. However, the Tribunal has failed to assess the income of the appellant reasonably and what is assessed is on lower side. It is the case of the appellant that he is a Fisherman by profession and earning more than Rs.25,000/-per month. But he has not produced any documents to prove the same. Therefore, taking into consideration that appellant was aged about 34 years, Fisherman by profession and the accident is of the year 2009, if we take his income at Rs.4,500/- per month instead of Rs.3,000/-per month as done by the Tribunal, it would meet the ends of justice and accordingly, it is taken. The appropriate multiplier applicable is 16' since the appellant was aged about 34 years, as rightly adopted by the Tribunal. The appropriate multiplier applicable is 16' since the appellant was aged about 34 years, as rightly adopted by the Tribunal. Taking all these factors into consideration, we award a sum of Rs.20,000/- towards conveyance, nourishing food and attendant charges instead of Rs.5,000/-, Rs.27,000/- towards loss of income during treatment period for six months instead of Rs.12,000/-, Rs.25,000/-towards loss of amenities instead of Rs.15,000/-, Rs.86,400/- (Rs.4,500/-x 12 x 16 x 10/100) towards loss of future earnings instead of Rs.54,600/-. 12. However, a sum of Rs.30,000/- and Rs.29,600/-awarded by the Tribunal towards injury, pain and sufferings and towards medical expenses is just and proper and it does not call for interference. Thus, in all, the appellant is entitled to the total compensation of Rs.2,18,000/- instead of Rs.1,49,200/- and the break-up is as follows: Towards injury, pain and sufferings Rs. 30,000/- Towards medical expenses Rs. 29,600/- Towards conveyance, nourishing food Rs. 20,000/- and attendant charges Towards loss of income during treatment Rs. 27,000/- period Towards loss of amenities, due to Rs. 25,000/- disability Towards loss of future earnings Rs. 86,400/- Total Rs. 2,18,000/- 13. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 23/11/2010 passed in MVC No.587/2009, by the Additional Senior Civil Judge and Motor Accident Claims Tribunal, Udupi, stands modified, awarding the compensation of Rs.2,18,000/- instead of Rs.1.49,200/- awarded by the Tribunal. There would be an enhancement of Rs.68,800/- with interest at 6% p.a., from the date of petition till its realization. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs.68,800/-with interest at 6% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award. Immediately on deposit by the Insurer, the entire enhanced compensation with interest shall be released in favour of appellant. Draw the award, accordingly.