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2019 DIGILAW 1338 (KAR)

K. Raju v. Roopesh

2019-06-19

K.SOMASHEKAR

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JUDGMENT : K. Somashekar, J. Though this appeal is listed for admission, with the consent of the learned counsel for the appellant as well as respondents, the matter is taken up for final disposal. I have heard the arguments advanced by the learned counsel for the parties. Being dissatisfied with the quantum of compensation awarded by the I Additional Senior Civil Judge and Motor Accident Claims Tribunal-V, Davanagere (hereinafter referred to as 'the Tribunal' for short), whereby the Tribunal has awarded compensation in a sum of Rs.4,25,000/- with interest at the rate of 6% p.a. in the impugned judgment and award dated 29th November 2014 in MVC No.195/2014, the appellant/claimant is before this Court, seeking enhancement of compensation. It is grievance of the appellant that the Tribunal has reckoned the income of the claimant at Rs.3,500/- p.m. which is on the lower side. Further, the Tribunal has not awarded any compensation towards loss of earning during the laid up period and attendant and other incidental charges, loss of amenities and discomfort in his life. The Tribunal has failed to consider the fact that the claimant has suffered fractures and taken treatment as inpatient. 2. It is evident from the claim petition that, on 23.01.2011, the claimant said to be the injured was proceeding on his motor bike bearing registration No.KA-17/X-4305 from Harihara to Ganganarasi Camp. At about 8.00 p.m., while the injured was proceeding near KEB Depot, Guttur of Harihara Taluk, at that time, the offending NEKRTC bus bearing registration No.KA- 34/F-961 driven by its driver in a rash and negligent manner came in a greater speed and dashed against the motorbike of the injured causing accident. Due to the impact, the injured sustained fracture to right femur, both bones of right leg, right shoulder, right thigh, right knee, left hip and injuries to other parts of the body. Immediately, after the accident, the injured was shifted to City Central Hospital, Davanagere for treatment, wherein he took treatment as inpatient from 23.1.2011 to 28.01.2011. During the treatment, a steel rod was implanted along with the canulloos screw bolt and external fixator to the right tibia by conducting surgery to his hip joint fracture. Subsequently, the injured had taken treatment at Sandeep Nursing Home for 2 days from 21.02.2011, again took treatment in City Central Hospital at Davanagere on 07.03.2011 for about 6 days. During the treatment, a steel rod was implanted along with the canulloos screw bolt and external fixator to the right tibia by conducting surgery to his hip joint fracture. Subsequently, the injured had taken treatment at Sandeep Nursing Home for 2 days from 21.02.2011, again took treatment in City Central Hospital at Davanagere on 07.03.2011 for about 6 days. Lastly, the injured took treatment at Sandeep Nursing Home, Davanagere as inpatient from 14.3.2011 for about 8 days, for which, the injured has incurred huge medical expenditure. 3. At the time of accident, the injured was aged about 26 years and he was earning huge amount in a sum of Rs.9 to 10 lakhs per annum by doing agricultural work and paddy business. Due to the accidental injuries, he is not in a position to do paddy business as he was doing prior to the accident. Due to the rash and negligent driving of the offending NEKRTC bus by its driver, the accident had occurred and the injured has suffered fractures and the same has been averred in the claim petition made by him before the Tribunal seeking for compensation. 4. In pursuance of the notice issued in the claim petition, the first respondent did not participate in the proceedings throughout. Hence, he was placed exparte. But respondents No.2 and 3 put in their appearance through their counsel and also filed statement of objections in detail, denying the petition averments. It is also contended that the claimant was not having valid and effective driving license and the insurance policy as on the date of accident and denied that the accident occurred due to rash and negligent driving on the part of the driver of the offending bus. Hence sought for dismissal of the claim petition. 5. Based upon the pleadings of the parties, the Tribunal framed issues and given findings on evaluating the evidence of P.W.1-K.Raju who said to be the injured, P.W.2 being the Doctor who treated the injured and considering the relevant documents such as Wound Certificate at Ex.P5, Discharge Summary reports at Ex.P47 to Ex.50, Disability Certificate at Ex.P52, Pahanis at Ex.P53 to Ex.P56 and X-ray Films at Ex.P57 & Ex.P58. These are all the vital documents produced by the injured claimant in order to substantiate his claim against the respondent and seeking suitable compensation. These are all the vital documents produced by the injured claimant in order to substantiate his claim against the respondent and seeking suitable compensation. The Tribunal, having considered the evidence of P.W.1 so also the relevant documents which are referred supra awarded compensation in a sum of Rs.4,25,000/- with interest at the rate of 6% p.a. under various grounds incorporated at paragraph 18 of the impugned judgment and award rendered by the Tribunal. 6. It is contended by the learned counsel for the appellant that the Tribunal has not considered the evidence of P.W.1 in proper perspective and has erroneously determined the income of the claimant at Rs.3,500/- p.m., which requires intervention of this Court. The Tribunal was not justified in considering the avocation of the claimant that he was doing agricultural work and doing paddy business, earning huge sum. Further, the Tribunal has failed to appreciate the fact that the claimant has suffered fractures and has undergone pain and agony and also not considering the evidence of Doctor who treated the claimant whereby the doctor has assessed the disability at 74% to a particular limb. The quantum of compensation awarded by the Tribunal is inadequate and hence sought for enhancement of compensation. 7. Per contra, Sri.F.S.Dabali, learned counsel appearing for respondents No.2 and 3 has taken me through the evidence of P.W.1/injured wherein he has reiterated the averments made in the claim petition. Merely because he was doing agricultural work apart from doing paddy business, it cannot be considered that he was earning huge sum as indicated in the claim petition, no document is produced by him to prove his paddy business. Merely because the first respondent has not filed any objections resisting the claim petition, it cannot be said that there shall be some strong evidence with respect to income. Therefore, without there being any document, the Tribunal has rightly assessed the income of the claimant at Rs.3,500/- p.m. These are all the grounds urged by the learned counsel for the respondents 2 and 3 and sought for dismissal of the appeal as devoid of merits. 8. In the context of strenuous contentions made by the learned counsel for the appellant as well as respondents 2 and 3, it is relevant to state that there is no dispute that the claimant has sustained accidental injuries on 23.01.2011 while proceeding in his motorbike which was hit by offending bus. 8. In the context of strenuous contentions made by the learned counsel for the appellant as well as respondents 2 and 3, it is relevant to state that there is no dispute that the claimant has sustained accidental injuries on 23.01.2011 while proceeding in his motorbike which was hit by offending bus. He has sustained fracture of right tibia, right femur, both bones of right leg, right shoulder, right thigh, right knee, left hip and injuries to other parts of the body which is indicated in the wound certificate at Ex.P5. He has also taken treatment in various hospitals such as City Central Hospital and Sandeep Nursing Home at Davanagere, once again he has taken further treatment in those hospitals for a period of about 18 days. Taking into consideration all these aspects, the Tribunal has assessed the disability at 30%. The Tribunal, considering the evidence of P.W.1 has taken the income of the claimant at Rs.3,500/- p.m., which is inadequate. The accident has taken place in the year 2011. There are norms and chart relating the notional income to be taken in the absence of proof of income. Therefore, the monthly income is required to be enhanced to Rs.6,500/- instead of Rs.3,500/- as assessed by the Tribunal. Adopting the multiplier 17 relating to the age of the claimant, taking the income at Rs.6,500/- and disability at 30%, the loss of earning capacity is reassessed at Rs.3,97,800/- (6500 x 12 x 17 x 30/100) as against Rs.2,14,200/- awarded by the Tribunal. 9. The Tribunal has awarded a sum of Rs.71,800/- towards medical expenditure, attendant and other incidental charges. Since the claimant has taken treatment as inpatient in various hospital for a period of more than 18 days, the claimant is entitled to another sum of Rs.15,000/- in addition to Rs.71,800/- awarded by the Tribunal, which comes to Rs.86,800/-. The Tribunal has awarded a sum of Rs.14,000/- taking into consideration monthly income as Rs.3,500/- and that the claimant has taken treatment for 4 months, which is very meager. Having regard to the fractures and injuries suffered by the claimant, this Court is of the opinion that the injured would have taken rest for a period of 6 months. Hence, he is entitled to Rs.39,000/- towards loss of income during the treatment period as against Rs.14,000/-, as awarded by the Tribunal. Having regard to the fractures and injuries suffered by the claimant, this Court is of the opinion that the injured would have taken rest for a period of 6 months. Hence, he is entitled to Rs.39,000/- towards loss of income during the treatment period as against Rs.14,000/-, as awarded by the Tribunal. In all, the claimant is entitled to total compensation of Rs.6,48,600/- thereby entitled to enhanced compensation of Rs.2,23,600/- with interest at the rate of 6% p.a. 10. Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award dated 29.11.2014 passed by the Tribunal in MVC No.195/2014 is modified. The claimant is entitled to total compensation of Rs.6,48,600/- thereby entitled to enhanced compensation of Rs.2,23,600/- with interest at the rate of 6% p.a. However, the claimant is not entitled to any interest for the delayed period of 211 days in filing the appeal, as ordered by this Court dated 12.09.2017. The respondent-NEKRTC is directed to deposit the enhanced compensation of Rs.2,23,600/- with accrued interest at 6% p.a. before the Motor Accident Claims Tribunal-V, Davanagere, within a period of 6 weeks from the date of receipt of a copy of this order.