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2019 DIGILAW 830 (KAR)

Manjunath v. United India Insurance Co. Ltd.

2019-04-04

K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. This appeal is filed by the claimant/appellant being not satisfied with the compensation awarded by the XVIII Additional Judge, Court of Small Causes, Member MACT-4, Bangalore in MVC No.5727/2008 dated 07.12.2009. 2. The claimant has filed the claim petition before the Tribunal under Section 166 of Motor Vehicle Act for claiming compensation of Rs.6,00,000/- on account of injuries sustained by him in a road traffic accident. Inter-alia contended that in the claim petition that on 12.07.2018 at about 5.00 p.m., when he was proceeding on his motorcycle bearing registration No.KA-40-J-5498 as a pillion rider, on the left side of Bangalore-Kanakapura road, near Shaneshwara temple, Lakshmipura, the driver of the BMTC bus bearing registration No.KA-01-F-1808 came with high speed in a rash and negligent manner dashed against the motorcycle. Due to the said accident, the petitioner has sustained grievous injuries and immediately he was shifted to hospital, where he treated as inpatient and has been spent lot of money towards medical expenses and due to the said accidental injury, he has suffered physical disability and therefore, he prays for granting compensation of Rs.6 lakh. 3. The respondent No.2/Managing Director of BMTC placed ex-parte. Respondent No.1/insurance company appeared through his counsel and filed written statement denying the rash and negligent driving of the vehicle at the time of the accident. However, admitted issuance of insurance policy in respect of offending vehicle and its validity and contended that liability is subject to terms and conditions of the policy. 4. In order substantiate the case, the claimant examined himself as PW.1 and also examined one witness as PW.2/doctor in order to prove disability. In all 16 documents came to be marked at Exs.P.1 to P.16. On the other hand, no evidence led by the respondent No.1 except marking insurance policy as per Ex.R.1. 5. Upon hearing the arguments and based upon the evidence, the Tribunal has awarded compensation of Rs.2,09,600/- as follows:- Sl. No. Particulars Amount (in Rs.) 1 Pain and suffering 25, 000 2 Loss of amenities & Happiness 15,000 3 Medical and incidental charges 31,000 4 Loss of earnings during the period of treatment 9,000 5 Loss of future earning due to disability 1,29,600 In Total 2,09,600 6. Not being satisfied with the award passed by the Tribunal, the claimant is before this Court. 7. Learned counsel for the claimant is absent and unrepresented. Not being satisfied with the award passed by the Tribunal, the claimant is before this Court. 7. Learned counsel for the claimant is absent and unrepresented. The matter is taken up before this Court. 8. On the other hand, the learned counsel for respondent No.1 appeared and supported the judgment and award passed by the Tribunal. Upon considering the evidence on record, it is not in dispute that the accident has occurred on 12.07.2018 and injury sustained by the claimant is due to the rash and negligent driving of the driver of BMTC bus bearing registration No.KA-01-F-1808. It is also not in dispute that the insurance policy was covered and issued by the respondent No.1 as on the date of the accident. The quantum of the compensation awarded by the Tribunal is meager and it required to be enhanced. 9. Upon hearing the arguments and perusal of the evidence of PW1, it is noted that the claimant has taken treatment in the hospital. In support of the same, he has produced wound certificate at Ex.P.5. Ex.P1 is FIR, Ex.P2 is Copy of panchanama Ex.P.3 is IMV Report Ex.P.4 is charge sheet, which are not in dispute. Ex.P.5 wound certificates goes to show that the petitioner has sustained four injuries. Out of the four injuries, injury Nos.1 and 2 are simple in nature and injury Nos.3 and 4 are grievous in nature i.e., fracture of right arm, right shoulder and right clavicle bone. The petitioner has admitted to various hospitals such as Abhaya Hospital, Siddalingappa Memorial Hospital and Sanjay Gandhi Hospital. Ex.P.13 is photographs and Ex.P.14 is medical bills. These documents are corroborated with the evidence of PW1. 10. The award passed by the Tribunal Rs.25,000/- towards 'Pain and suffering', Rs.15,000/- towards 'Loss of amenity' is meager for the injuries sustained by the petitioner herein. Though medical documents produced at Ex.P.11, 12 and 13, the Tribunal has not awarded any compensation towards 'Food and nourishment during the period of treatment. Therefore, a sum of Rs.15,000/- required to be awarded in addition to Rs.25,000/- towards 'Pain and suffering' and a sum of Rs.10,000/- in addition to Rs.15,000/- towards 'Loss of amenity'. It is seen from the medical records that the petitioner has admitted to hospital on 24.10.2008 and discharged on 13.11.2008 i.e., 20 days he has taken treatment as inpatient. Therefore, a sum of Rs.15,000/- required to be awarded in addition to Rs.25,000/- towards 'Pain and suffering' and a sum of Rs.10,000/- in addition to Rs.15,000/- towards 'Loss of amenity'. It is seen from the medical records that the petitioner has admitted to hospital on 24.10.2008 and discharged on 13.11.2008 i.e., 20 days he has taken treatment as inpatient. Therefore, I feel it just and proper to award a sum of Rs.5,000/- towards 'Food and nourishment during the time of treatment'. As far as disability is concerned, the Tribunal has rightly held that the doctor who has treated the petitioner has not been examined. However, PW.2/doctor has examined, who has given disability certificate to the petitioner for the injuries sustained by him in a road traffic accident. 11. Dr. Sharan Srinivasa has assessed the final permanent physical impairment in neurological conditions at 44.59%. However, he has not issued any disability certificate and he has admitted that he has not treated the claimant and his evidence is only based on medical reports produced by the claimant. Normally, the disability to be considered is 1/3rd. The Tribunal has taken disability of 20% to the whole body and the same was not disputed by the respondent and also not challenged the same before this Court by filing any appeal. Therefore, the Tribunal has rightly considered 20% functional disability to the whole body and did not require any interference. 12. As regards the income of the petitioner, he was doing welder work and getting income of Rs.6,000/- per month. In order to prove the same, he has not produced salary certificate or examined his employer. In the absence of any such income proof, the Tribunal has taken Rs.3,000/- per month. In my view, the amount of salary considered by the Tribunal is not appropriate. Normally, non-technical person used to earn during the accident year i.e., 2007-08 was altered to Rs.4,000/- per month. Therefore, it is just and proper to consider the income of the petitioner is Rs.4,000/- per month. Therefore, loss of income of the petitioner i.e., Rs.4,000/- per month x 20% disability to the whole body = 800 x 12 = Rs.9,600 per annum. 13. As per Sarla Verma's case, the appropriate multiplier to the age group of 18 to 25 is 18. The calculation comes to 9,600x18=Rs.1,72,800. 14. Therefore, loss of income of the petitioner i.e., Rs.4,000/- per month x 20% disability to the whole body = 800 x 12 = Rs.9,600 per annum. 13. As per Sarla Verma's case, the appropriate multiplier to the age group of 18 to 25 is 18. The calculation comes to 9,600x18=Rs.1,72,800. 14. Therefore, a sum of Rs.43,200/- is enhanced under the head 'Loss of income' as against the compensation award granted by the Tribunal. As regards to the 'Loss of income' the Tribunal has awarded Rs.9,000/- per month. Another sum of Rs.3,000/- is awarded in addition to Rs.9,000/-. 15. With the above discussion, the award of compensation is revised in addition to the compensation awarded by the Tribunal. Sl. No. Particulars Compensation revised by this Court 1 Pain & Agony Rs. 15,000.00 2 Loss of amenities Rs. 10,000.00 3 Food and Nourishment Rs. 5,000.00 4 Loss of earning Rs. 3,000.00 5 Loss of future income Rs. 43,200.00 Total Rs. 76,200.00 Accordingly, I pass the following order:- 1. The appeal is allowed in part. 2. The judgment and award dated 07.12.2009 passed in MVC No.5727/2008 by XVIII Addl. Judge, Court of Small Causes, MACT-4, Bangalore is hereby modified. 3. The claimant is entitled for a compensation of Rs.76,200/- in addition to what has been awarded by the Tribunal with interest @ 6% p.a. from the date of petition till the date of realization. 4. The enhanced amount is ordered to be released in favour of petitioner after due verification.