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2013 DIGILAW 588 (KAR)

ISSAMIYA @ ISSAMUDDIN v. GULAM RASOOL

2013-05-27

C.R.KUMARASWAMY

body2013
JUDGMENT C.R. KUMARASWAMY, J.-This Miscellaneous First Appeal is filed under Section 173 (1) of Motor Vehicles Act against the judgment and award dated 30.07.2011 passed in MVC No. 152/2009 on the file of Principal Senior Civil Judge and MACT-II Bidar, partly allowing the claim petition and seeking enhancement of compensation. 2. With the consent of the learned counsel for the appellant as well as the learned counsel for Respondent No. 2, this matter was heard on merits. 3. Learned counsel for the appellant has produced the certified copy of deposition of PW-2 doctor, Ex.P-1 F.I.R., Ex.P-2 complaint, Ex.P-3 spot panchanama,Ex.P-4 wound certificate of Issamiyya s/o Ibrahimsab, Ex.P-5 copy of the charge sheet, Ex.P-6 disability certificate, Ex.P-7 medical bills. 4. The case of the claimant in the Claims Tribunal is as under: That on 08.03.2009 at about 12.14 hours on National Highway No. 9 road within limits of Talmadgi village near the land of Srikant Kulkarni, when the claimant was proceeding in the auto rickshaw bearing Reg. No. KA-38/5121 for purchasing vegetables, the driver of the auto rickshaw lost control over it, since he was driving the vehicle in a rash and negligent manner, consequently the claimant met with an accident and sustained injuries. 5. The respondents have made appearance in the Claims Tribunal and they have filed objection statement. They have denied the allegations made in the claim petition. 6. The claims Tribunal based on the evidence of PW-1 and also police papers and also relying on the charge sheet, have come to a conclusion that the driver of the auto rickshaw was driving the vehicle in a rash and negligent manner. The finding recorded by the claims Tribunal in respect of rash and negligent driving of the driver of the auto rickshaw is based on evidence and it is sound and proper. 7. The claims Tribunal has awarded a compensation of Rs. 30,000/- towards pain and agony, loss of amenities and enjoyment of life, Rs. 10,000/- towards medical expenses and incident charges, Rs. 5,000/- towards loss of income during the period of treatment, Rs. 64,800/- towards loss of earning capacity. In all, the claims Tribunal has awarded a compensation of Rs. 1,09,800/-. 8. Feeling unsatisfied with the award amount awarded by the claims Tribunal, the claimant has preferred this appeal seeking for enhancement of compensation. 9. 5,000/- towards loss of income during the period of treatment, Rs. 64,800/- towards loss of earning capacity. In all, the claims Tribunal has awarded a compensation of Rs. 1,09,800/-. 8. Feeling unsatisfied with the award amount awarded by the claims Tribunal, the claimant has preferred this appeal seeking for enhancement of compensation. 9. Learned counsel for the appellant submits as under: The appellant was doing vegetable vending business and the income arrived at by the claims Tribunal is on the lower side. Though the medical papers reveals that there was a disability to the extent of 20%, the claims Tribunal has assessed the disability at 10% which is not proper. Even on other heads, the compensation awarded is less. Therefore, the claimant-appellant seeks for enhancement of compensation. 10. Learned counsel for the respondent No. 2 supports the impugned judgment and award and submits that the compensation awarded by the claims Tribunal is reasonable. 11. As stated earlier, the claimant-appellant has produced the wound certificate Ex.P-4. The contents of the wound certificate discloses that Issamiyya met with an accident on 08.03.2009. The doctor who examined him has opined that he has sustained the following injuries: Lacerated wound of 10 × 2 cm over left parieto occipital region. Patient referred to higher centre for further evaluation after taking consent. According to Shree Hospital X-Ray report dated 10.03.2009 linear fracture is seen along superior border of C5 vertebra with mild prevertebral soft tissues edema. Suspicious linear fracture along body of C3 vertebra. The above injuries are grievous in nature. 12. PW-2 is the doctor. He has deposed that on radiological examination cervical spine shows healed fracture of the C-3 and C-5 vertebra early degenerative changes is seen suggesting spondylosois. Compression of the body of C5 vertebra to the extent of 25% reduction in height. Patient has got stiffness of the neck. The doctor is of the opinion that the total partial permanent disability in relation to spine is calculated by 2008 Guidelines given by "The office of state commissioner for persons with disabilities, Government of Karnataka" is about 20%. Nothing is elicited in his cross-examination to disbelieve his evidence. The claims Tribunal has awarded a compensation of Rs. 30,000/- under the head of damages. In my view this is on the lower side. Therefore, I am of the opinion that the claimant is entitled for a compensation of Rs. Nothing is elicited in his cross-examination to disbelieve his evidence. The claims Tribunal has awarded a compensation of Rs. 30,000/- under the head of damages. In my view this is on the lower side. Therefore, I am of the opinion that the claimant is entitled for a compensation of Rs. 30,000/- under the head of pain and suffering. In my view a compensation of Rs. 10,000/- has to be awarded under the head of loss of amenities. 13. The claims Tribunal has awarded a compensation of Rs. 10,000/- towards medical expenses. In my view the finding recorded in this aspect is proper. 14. The claims Tribunal has not awarded any compensation under the head of conveyance, nourishment and attendant charges. Therefore, in my view a compensation of Rs. 5,000/- has to be awarded under the head of conveyance, nourishment and attendant charges. 15. The claims Tribunal has awarded Rs. 5,000/- towards loss of earning during laid up period. In my view it is on the lower side. Therefore, an amount of Rs. 10,000/- has to be awarded under the head of loss of earning during laid up period. 16. There is an evidence to the effect that the claimant's father was also a vegetable vendor and he was carrying on vegetable vending business. He was travelling in an auto rickshaw to purchase the vegetables, at that time he met with an accident. From this it is clear that the claimant was carrying onvegetable vending business. Though the claimant was carrying on vegetable vending business, the claims Tribunal has assessed the income of the claimant-appellant at Rs. 3,000/- per month, which is on the lower side. The accident occurred in the year 2009. The police papers clearly reveal that the claimant was a vegetable vendor and his father was also a vegetable vendor. Taking into consideration of all these aspects, in my view, the income of the claimant can be assessed at Rs. 5,000/- per month. According to the doctor, the claimant has got disability to the extent of 20% after the accident. That means, the claimant has got reduced capacity of work to the extent of 20%. 20% disability is equal to Rs. 1,000/-. The age of the claimant is 23 years and the proper multiplier that has to be adopted in this case is 18'. So due to reduced capacity of work, the claimant has lost income of Rs. That means, the claimant has got reduced capacity of work to the extent of 20%. 20% disability is equal to Rs. 1,000/-. The age of the claimant is 23 years and the proper multiplier that has to be adopted in this case is 18'. So due to reduced capacity of work, the claimant has lost income of Rs. 1,000 × 12 (months) = Rs. 12,000 × 18 (multiplier) = Rs. 2,16,000/-. Hence an amount of Rs. 2,16,000/- has to be awarded under the head loss of future income and earning capacity. Rest of the judgment and award is accepted. 17. The claimant-appellant is entitled to compensation as under: Pain and suffering Rs. 30,000/- Loss of amenities Rs. 10,000/- Medical Expenses Rs. 10,000/- Conveyance, nourishment and attendant charges Rs. 5,000/- Loss of earning during laid up period Rs. 10,000/- Loss of earning capacity Rs. 2,16,000/- Total Rs. 2,81,000/- The enhanced compensation will bear interest at 6% per annum from the date of petition till the date of payment. 18. In view of the above discussion, I pass the following: ORDER (i) This Miscellaneous First Appeal is allowed in part. (ii) The compensation is enhanced from Rs. 1,09,800/- as awarded by the claims Tribunal to Rs. 2,81,000/-. (iii) The enhanced compensation amount will bear interest at the rate of 6% per annum, from the date of petition till the date of payment. (iv) Rest of the judgment and award is accepted.