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2016 DIGILAW 17 (KAR)

Nikhil v. A. S. Vinay

2016-01-06

B.SREENIVASE GOWDA, VINEET SARAN

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JUDGMENT : B. Sreenivas Gowda, J. 1. The appellant who sustained personal injuries in a road traffic accident filed a claim petition before the Motor Accident Claims Tribunal, Mysore under Section 166 of the Motor Vehicles Act, 1988 seeking compensation from the driver-cum-owner and the insurer of the vehicle involved in the accident. The Tribunal, by the impugned judgment and award dated 4-4-2014, has awarded Rs. 70,604/- with interest at 6% per annum. The claimant aggrieved by the sum awarded by the Tribunal, has preferred this appeal seeking enhancement. As there is no dispute regarding certain injuries sustained by the claimant in the road traffic accident occurred on 23-10-2012 due to the rash and negligent driving of the car bearing Registration No. KA21M4724 by its driver and liability of the insurer of the said vehicle, the only point that remains for consideration in this appeal is: "Whether the compensation of Rs. 70,604/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement?" 2. Having heard the learned Counsel for the parties and after perusing the judgment and award passed by the Tribunal, we are of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and therefore, it is required to be enhanced. 3. As per Ex. P. 7-wound certificate, claimant had sustained the following injuries: 1. 15 x 5 c.m. abrasion over left side neck 2. 2 x 2 x 1 c.m. laceration over chin 3. 5 x 2 x 1 c.m. laceration over right cheek 4. 3 x 4 c.m. abrasion over right cheek 5. tenderness over right xxx region 6. 5 x 2 x 1 c.m. laceration over right knee joint 7. fracture of head of femur undisplaced 8. fracture of posterior wall of right acetabulum The injuries sustained and treatment taken by the claimant were also evident from Ex. P. 8-discharge summary, Ex. P. 9-medical bills, Ex. P. 12-case-sheet, Ex. P. 13-X-Ray and they were supported by the oral evidence of the claimant and the doctor who were examined as P.Ws. 1 and 2 respectively. P.W. 2-Doctor has stated that claimant has suffered disability to the extent of 36% to the right lower limb. 4. Considering the nature of injuries sustained by the claimant Rs. 52,000/- awarded by the Tribunal towards pain and suffering and Rs. 1 and 2 respectively. P.W. 2-Doctor has stated that claimant has suffered disability to the extent of 36% to the right lower limb. 4. Considering the nature of injuries sustained by the claimant Rs. 52,000/- awarded by the Tribunal towards pain and suffering and Rs. 58,500/- awarded towards medical expenses based on the medical bills produced by the claimant, are just and reasonable and they do not require enhancement. 5. Considering the nature of injuries sustained by the claimant and duration of treatment undergone by him as inpatient, Rs. 3,192/- awarded by the Tribunal towards incidental expenses such as conveyance, attendant charges and nourishment, etc., is on the lower side and requires to be enhanced and we award Rs. 10,000/- under this head. 6. Claimant in support of his contention that by working as a receptionist at King's Court Hotel in Mysore, was getting salary of Rs. 12,000/- per month except producing a salary certificate at Ex. P. 14, has not chosen to examine his employer nor has chosen to produce pay slip. Therefore, in the absence of proof of income, considering his age as 19 years, the year of accident as 2012 and his avocation as daily wager, his income may be assessed at Rs. 7,000/- per month. The nature of injuries sustained by the claimant would suggest that he must have taken treatment and rest for a period of four months and therefore, Rs. 28,000/- is awarded towards loss of income during laid up period. 7. We have now assessed the income of the claimant at Rs. 7,000/- per month. There is no dispute regarding 18 multiplier adopted by the Tribunal based on the age of the claimant who was 19 years old at the time of accident. It is not in dispute that the claimant had suffered major fractures of femur and posterior wall of right metablum. The doctor who has treated him has stated that there is 36% disability to the particular limb which would be 12% to the whole body. The Tribunal instead of determining loss of future income by taking the disability caused to the whole body at 12%, has committed an error in working out loss of future income by taking the disability caused to the whole body at 3% which is highly improper. The Tribunal instead of determining loss of future income by taking the disability caused to the whole body at 12%, has committed an error in working out loss of future income by taking the disability caused to the whole body at 3% which is highly improper. Hence, loss of future income is worked out by considering the disability caused to the whole body at 12% and it comes to Rs. 1,81,440/- (Rs. 7000 x 12 x 18 x 12/100) and it is awarded as against Rs. 25,920/- awarded by the Tribunal. 8. The nature of injuries suggest that claimant is required to undergo further treatment and has to spend some amount for the same. Therefore, a sum of Rs. 20,000/- is awarded towards future medical and incidental expenses. 9. The Tribunal has not awarded any compensation under the head loss of amenities. Therefore, considering the nature of injuries sustained by the claimant, the disability stated by the doctor and an amount of discomfort the claimant has to undergo in his future life, a sum of Rs. 40,000/- is awarded towards loss of amenities and future happiness. 10. Thus, the claimant is entitled to the following compensation:- Pain and suffering Rs. 52,000/- Medical Expenses Rs. 58,500/- Incidental expenses Rs. 10,000/- Loss of income during laid up period Rs. 28,000/- Loss of amenities Rs. 40,000/- Loss of future income Rs. 1,81,440/- Future medical expenses Rs. 20,000/- Total Rs. *3,69,940/- Less the compensation awarded by the Tribunal Rs. 70,604/- Rs. *2,99,356/- This difference amount of Rs. *2,99,356/- would be the additional compensation. 11. The Tribunal while deciding the issue relating to negligence has held that claimant had also contributed for the accident to an extent of 50% by riding his two wheeler negligently that too without possessing a valid driving licence and this aspect has not been disputed by the learned Counsel for the parties. In view of the finding of the Tribunal on the point of negligence, claimant is entitled for 50% of the enhanced compensation amounting to Rs. 1,49,678/-. 12. Accordingly, appeal is allowed in part. Judgment and award of the Tribunal is modified to the extent indicated hereinabove. The claimant is entitled to an additional compensation of Rs. 1,49,678/- with interest at 6% p.a. from the date of claim petition till the date of realisation. 1,49,678/-. 12. Accordingly, appeal is allowed in part. Judgment and award of the Tribunal is modified to the extent indicated hereinabove. The claimant is entitled to an additional compensation of Rs. 1,49,678/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The Insurance Company is directed to deposit the enhanced compensation with interest at 6% p.a. within two months from the date of receipt of a copy of the judgment. From the additional compensation, Rs. 1,00,000/- with proportionate interest is ordered to be kept in Fixed Deposit in the name of the claimant in any nationalised bank, schedule bank or Grameena Bank for a period of five years with a right of option for him to withdraw periodical interest accrued thereon. The remaining amount with proportionate interest is ordered to be released in favour of the claimant. The Tribunal while releasing the amount is directed to issue Fixed Deposit slip to the claimant so as to enable him to withdraw the Fixed Deposit amount on its maturity without approaching the Tribunal once again. The bank in which the enhanced compensation will be kept in Fixed Deposit is directed to release Fixed Deposit amount on its maturity without insisting for an order from the Tribunal. No order as to costs.