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2020 DIGILAW 1090 (KAR)

Siddaraju N v. Madhusudhan G S

2020-06-16

K.NATARAJAN

body2020
JUDGMENT K. Natarajan, J. - This appeal is filed by the claimant being not satisfied with the judgment and award passed by the Principal Senior Civil Judge and MACT-10, Tumakuru, (hereinafter referred to as the 'Tribunal') in MVC No.777/2009, dated 15.06.2012. 2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance. Notice to Respondent No.1 is dispensed with. 3. The status of the parties before the Tribunal is retained for the sake of convenience. 4. The case of the appellant/claimant is that he filed a claim petition before the Tribunal under Section 166 of Motor Vehicles Act (for short 'M.V. Act') claiming compensation of Rs.10.00 lakhs for the injuries sustained by him in a road traffic accident that occurred on 03.05.2009 inter alia contending that while himself and his wife were proceeding in a Maruthi Car bearing Registration No.KA-06/M-7591 from Bengaluru towards Tumkur, near Manchakal Kuppe at 8.30 p.m., a Tipper lorry bearing Registration No.KA-06/A-8812 was also coming from Bengaluru behind his car and its driver drove the Tipper lorry in a rash and negligent manner and overtook the car on its left side and took 'U' turn towards right without showing any signal or indicator and dashed against the front portion of the car. Due to the said accident, the vehicle was completely damaged. He has sustained grievous injuries. He was taken to HOSMAT Hospital, Bengaluru and was treated as an in-patient from 04.05.2009 to 15.05.2009. During hospitalization, he underwent a surgery and spent Rs.3,50,000/- towards medical expenditures and also towards conveyance and other incidental charges. He was working as an Executive Engineer in Bengaluru Development Authority getting a monthly salary of Rs.20,000/- and due to the injuries, he is suffering from disability. Hence, he claimed compensation under various heads. 5. In pursuance of the notice issued by the Tribunal, the respondent No.1-owner of the Tipper lorry appeared through a counsel and filed objections contending that there was no rash and negligence on the part of the driver of Tipper lorry. However, the vehicle was insured with respondent No.2-Insurance Company. The driver of the vehicle was holding a valid Driving License. Therefore, if any, liability on the insured shall be fastened on the Insurance Company and prayed for dismissing the claim petition against respondent No.1. 6. However, the vehicle was insured with respondent No.2-Insurance Company. The driver of the vehicle was holding a valid Driving License. Therefore, if any, liability on the insured shall be fastened on the Insurance Company and prayed for dismissing the claim petition against respondent No.1. 6. The respondent No.2-Insurance Company also appeared through its counsel and filed objections by denying the averments made in the claim petition as false and contended that the claimant himself was responsible for the accident. He lost his control and caused the accident. He had no valid Driving License. There is a delay in lodging the complaint. Hence, prayed for dismissing the claim petition. 7. On the basis of the pleadings, the Tribunal framed the following issues for consideration: " i) Whether the claimant proves that on 03.05.2009 at about 8.45 p.m. near 'V' turn, Urdigere hobli, on N.H.4 road, Manchakal Kuppe, Tumkur, he met with accident due to wrongful use of Tipper lorry bearing Reg. No.KA-06-A-8812 by its driver, thereby he sustained injuries? ii) To what compensation the claimant is entitled to? And from whom? iii) What order?" 8. To substantiate the contentions, the claimant got examined himself as PW.1 and got marked 12 documents. He also examined the Doctor as PW.2. The respondents have not lead any evidence. After considering the evidence on record, the Tribunal answered Issue No.1 in the affirmative and allowed the claim petition in-part by awarding compensation of Rs.26,200/- with interest at 6% per annum from the date of petition till payment. Assailing the same, the claimant preferred this appeal. 9. Learned counsel for the appellant/claimant strenuously contended that the Tribunal failed to consider the medical records and the injuries sustained by the claimant, which are grievous in nature. He has undergone a surgery and is suffering from disability of 49% of his limb. The claimant has also examined the doctor and has produced the Discharge Summery and all the relevant documents, which were not properly appreciated by the Tribunal. The claimant has sustained fracture of left side hip and there was dislocation, which was comminuted fracture of posterior wall acetabulam left hip, dislocation of left hip and sutured would with raw area over left forehead and skin grafting was done. Internal fixation of plate and screw was done. The claimant has sustained fracture of left side hip and there was dislocation, which was comminuted fracture of posterior wall acetabulam left hip, dislocation of left hip and sutured would with raw area over left forehead and skin grafting was done. Internal fixation of plate and screw was done. He has undergone lot of pain and suffering, but the Tribunal has awarded only Rs.15,000/- under the head 'pain and suffering', which is meager. Hence, the same is liable to be enhanced. He further contended that though the claimant is entitled for medical reimbursement from his office, but other expenditure towards food, nourishment and attendant charges were not awarded by the Tribunal. He also contended that even though there is no loss of income due to disability, but the claimant is required to suffer discomfort throughout his life and there is no award granted under the head 'loss of amenities' in spite of the evidence of the doctor that the claimant is suffering from disability of 49%. Hence, prayed for enhancement of the compensation. 10. Per contra, learned counsel appearing for the Insurance Company supported the award of the Tribunal and opposed the claim made by the appellant. He contended that the appellant is a government employee and he got reimbursed the entire medical expenditure. The compensation awarded by the Tribunal is sufficient as there is no loss of earning by the appellant. Hence, prayed for dismissing the appeal. 11. Upon hearing the arguments and after perusal of the records, the points that arise for consideration are as under: "i) Whether the claimant is entitled for enhancement of compensation? ii) If so, to what extent?" 12. On perusal of the records, the accident, the injuries sustained by the appellant and the liability of the Insurer are not in dispute. The appeal is only in respect of the enhancement of the compensation. The claimant sustained grievous injuries and was admitted in the hospital as an in9 patient from 04.05.2009 to 15.05.2009 for almost 12 days and he has undergone a surgery on his hip. There were fixation of plate and screw in the surgery done on 05.05.2009. The doctor has also opined that the appellant is suffering from 49% of disability of the particular limb and 17% disability of whole body. This aspect has not been properly appreciated by the Tribunal. There were fixation of plate and screw in the surgery done on 05.05.2009. The doctor has also opined that the appellant is suffering from 49% of disability of the particular limb and 17% disability of whole body. This aspect has not been properly appreciated by the Tribunal. Therefore, awarding Rs.15,000/- towards 'pain and suffering' is meager and the same is liable to be enhanced. Hence, I am inclined to award Rs.20,000/- in addition to the compensation awarded by the Tribunal under this head 'pain and suffering'. In view of hospitalization of the claimant for 12 days, definitely the claimant could have spent some amount towards 'food, nourishment and attendant charges', but the Tribunal has not awarded any amount under this head. Therefore, in my opinion, by looking to the facts and circumstances of the case, I propose to award Rs.10,000/- towards 'food, nourishment and attendant charges. Though the claimant suffered disability of 49% to the limb and 17% to the whole body, there may not be any reduction in his salary or earning capacity, but definitely the claimant has to suffer loss of comforts of life due to dislocation and injuries on the hip bones. Therefore, the Tribunal ought to have awarded compensation under the head 'loss of amenities'. Hence, I am inclined to award Rs.50,000/- towards 'loss of amenities'. The Tribunal has awarded Rs.1,200/- towards 'loss of earning' during the period of treatment and Rs.10,000/- towards the medical expenses. The same are not disturbed. Thus, the claimant is entitled for the following enhanced compensation in addition to the compensation awarded by the Tribunal: i) Pain and suffering Rs.20,000/- ii) Food, nourishment & attendant charges Rs.10,000/- iii) Loss of amending Rs.50,000/- Total Rs.80,000/- 13. Accordingly, I proceed to pass the following order: The appeal is allowed in-part. The appellant/claimant is entitled to the compensation of Rs.80,000/- in addition to the compensation awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of realization.