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2015 DIGILAW 323 (KAR)

Devaraya v. Naik VS K. J. Santhosh

2015-03-24

N.K.PATIL, RATHNAKALA

body2015
JUDGMENT : N.K.PATIL.J. This appeal by the claimant is directed against the impugned judgment and award dated 12th September 2014, passed in MVC No. 606/2012, by the Senior Civil Judge and Member, Motor Accident Claims Tribunal, Kundapura, (for short, ‘Tribunal’), for enhancement of compensation, on the ground that the compensation awarded by Tribunal is inadequate. 2. The appellant claims to be aged about 45 years and hale and healthy prior to the date of accident. He contended that at about 8:40 hours, on 13032012, when the appellant was riding his Motor Cycle bearing Registration No.KA20/L524 from Bhatkal towards Sabatti School side slowly and on the correct side of the road, near Bhatkal Murukatte cross, at that time, a Motor cycle bearing Registration No.KA21/H8750 came from opposite direction, from Sabatti side towards Muttalli side, being ridden by its rider, in a rash and negligent manner, dashed against the appellant’s motor cycle, due to which, the appellant fell down on the road and sustained grievous injuries and his motor cycle was also damaged. 3. It is his further case that, on account of the injuries sustained in the accident, he has undergone severe pain and agony and for the treatment of the said injuries, he has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated reasonably. 4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of `27,00,000/against the respondents. 5. It is the submission of the learned counsel appearing for appellant that the Tribunal has grossly erred in not awarding reasonable compensation towards disability, injury pain and sufferings on account of the injuries sustained in the road traffic accident, and not awarded any compensation towards loss of income during treatment period and also loss of future earnings and also conveyance, nourishing food and attendant charges. Therefore, he submitted that, the impugned judgment and award passed by Tribunal is liable to be modified by enhancing reasonable compensation under all the heads and awarding compensation towards loss of future earnings and loss of income during treatment period and also conveyance, nourishing food and attendant charges, having regard to the nature of injuries and disability sustained in the road traffic accident. 6. 6. After careful consideration of the submission of the learned counsel appearing for appellant and after perusal of the grounds urged in the memorandum of appeal including the judgment and award passed by Tribunal, it is manifest on the face of the same that there is no error or material irregularity as such committed by the Tribunal in awarding compensation of 1,16,410/with interest at 6% per annum on account of the injuries sustained by the appellant in the road traffic accident. 7. After perusal of the entire material available on file, it emerges that occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. It is further not disputed that on account of the road traffic accident, the appellant sustained bleeding over the right ear present there is a horizontal 2” cut on the forehead and head injury referred to higher centre, as per Wound Certificate and took treatment at KMC, Hospital, Manipal as inpatient from 13032012 to 30032012. It is further not disputed that the appellant was aged about 45 years and working as Physical Education Teacher in Tenginagundi, Hebble High School at Bhatkal, getting salary. 8. Discharge Summary, Ex.P9 reveals that the appellant was diagnosed that he has sustained closed head injury with squamous temporal bone fracture with right ZMC fracture with sublucation carpometacarpal joint of right hand. Further, PW2, Professor and Head of Oral and Maxillofacial Surgery, KMC, Manipal has deposed that the appellant has suffered disability of 10% to 12% to his facial problems. Therefore, taking into consideration the nature of injuries sustained and also the nature and duration of treatment undergone, and also the medical bills produced, the Tribunal has awarded a sum of `40,000/towards injury, pain and sufferings and `32,410/towards medical expenses. 9. Further, P.W.1 in his deposition has deposed that he was working as a Physical Education Teacher, at Tenginagundi and drawing salary of `23,907/per month. Due to the accidental injuries he has not attended work and suffered loss of income. He has produced Ex.P.8 Salary Certificate issued by Govt. High School, Tenginagundi and stated that he was not attending for about 8 months and has suffered loss of earning capacity. Due to the accidental injuries he has not attended work and suffered loss of income. He has produced Ex.P.8 Salary Certificate issued by Govt. High School, Tenginagundi and stated that he was not attending for about 8 months and has suffered loss of earning capacity. To prove the disability, he has examined PW2 Oral and Maxillofacio Surgeon of KMC., who has deposed with regard to problem suffered by the appellant and also the nature of the treatment given to him and opined that the appellant has suffered disability of 10% to 12%. No doubt, as per medical records, appellant has sustained injuries to his forehead and face and fractural of temporal bone, the question is whether the disability stated by the appellant has affected the earning capacity of the appellant. In this regard the cross examination of PW1 & 2 is very relevant and Ex.P.8 is the Salary Certificate, which reveals that the appellant was drawing salary of `23,907/per month as on the date of the accident. The respondent has not disputed the salary certificate. As per evidence of the PW1, it is clear that the appellant was not working for about 3 months and has attended the duty in the month of June. However, he has stated that from April 10th to 31st May, it is vacation for the school and he has also received the salary for the said months, i.e. during the treatment period. It is not the case of the appellant that he has availed E.L. during the treatment period. He has not produced leave certificate before the Court. If at all he had availed E.L., he could have produced documents to prove the same. Moreover, in case of loss of E.L., he is entitled for compensation for the said period. In this case except his oral testimony, there is no documentary evidence to support his contention. As such, it can be inferred that he has not availed E.L. and consequently, not suffered loss of E.L. or income due to the injuries sustained by him in the road traffic accident. Therefore, he is not entitled for any compensation under the head loss of income during laid up period. The said reasoning given by Tribunal is just, fair and proper and interference in the same is uncalled for. 10. Therefore, he is not entitled for any compensation under the head loss of income during laid up period. The said reasoning given by Tribunal is just, fair and proper and interference in the same is uncalled for. 10. So far as, loss of future earning capacity is concerned, appellant, PW1 in the cross examination has stated that……. 11. PW2 in the crossexamination has stated that…….. 12. The evidence of PWs 1 & 2 clearly goes to show that the appellant has neither suffered any loss of future earning capacity nor there is any reduction in the cadre of employment or salary. Hence, the appellant is not entitled for any compensation under the head, loss of future earning capacity. 13. However, taking into consideration the nature of injuries sustained, disability assessed by Doctor, age, avocation, etc., the Tribunal has awarded compensation of a sum of 35,000/towards loss of amenities, discomfort and future unhappiness. The same is just and reasonable and interference in the same is uncalled for. 14. So far as compensation awarded towards damages caused to the vehicle is concerned, it can be seen that, PW1 in his deposition has stated that he is the R.C. owner of the motor cycle bearing Reg. No.KA30L524. Due to the accident, motor cycle of the appellant is damaged and he has got it repaired at Jeevothama Auto Mobiles, Bhatkal and has produced IMV report marked at Ex.P.4. As per Ex.P.4, the motor cycle bearing Reg. No.KA30L524 sustained following damages: 1. Front number plate damaged, 2. Head light assay damaged 3. Front right side indicator broken’ 4. Right side leg guard bent 5. Left side rear indicator broken 6. Left side front foot rest bent 15. No where in the cross examination, the respondent has disputed the contents of Ex.P.4 or evidence of PW1 in this regard. As per Ex.P.13, the appellant has incurred `9,074/. As such, accepting the same, the Tribunal has awarded `9,000/towards repair of the motor cycle. The same is just and proper and does not call for interference by this Court. 16. No where in the cross examination, the respondent has disputed the contents of Ex.P.4 or evidence of PW1 in this regard. As per Ex.P.13, the appellant has incurred `9,074/. As such, accepting the same, the Tribunal has awarded `9,000/towards repair of the motor cycle. The same is just and proper and does not call for interference by this Court. 16. Thus, the Tribunal, taking into consideration each and every aspect of the matter, such as nature of injuries sustained, age, avocation, nature and duration of treatment under gone, disability assessed by Doctor, etc, has awarded just and reasonable compensation of `40,000/towards injury, pain and sufferings, 32,410/towards medical expenses, `35,000/towards loss of amenities, discomfort and unhappiness on account of disability and `9,000/towards vehicle repair charges, in all `1,16,410/on account of the grievous injuries sustained by the appellant in the road traffic accident. 17. The reasoning given by Tribunal for awarding the aforesaid compensation at paragraphs 17 to 22 is just and proper. Hence, we do not find any justification or good ground to interfere in the well-considered, well-founded and well-reasoned judgment passed by Tribunal nor the appellant has made any good grounds for such interference. 18. For the foregoing reasons, the appeal filed by the appellant is liable to be dismissed as being devoid of merits. Accordingly, it is dismissed. Office to draw award, accordingly.