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2020 DIGILAW 1805 (KAR)

Saleem C T v. Manjunath B N

2020-09-15

PRADEEP SINGH YERUR

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JUDGMENT Pradeep Singh Yerur, J. - This appeal is directed against the judgment and award dated 04.09.2012 passed in MVC No.9179/2008 by the Motor Accident Claims Tribunal, XVII Addl. Judge, Court of Small Causes, Mayohall Unit (SCCH-21), Bangalore (hereinafter referred to as 'the Tribunal' for brevity). 2. The Tribunal by impugned judgment and award has awarded a total compensation in a sum of Rs.9,92,100/- with interest @ 6% p.a. from the date of petition till its deposit on account of the injuries sustained by the appellant in a road traffic accident and has directed the 1st and 2nd respondent to deposit the same. Questioning the quantum of compensation awarded, claimant is before this court seeking enhancement. 3. The parties shall be referred as per their status in the Tribunal for the sake of convenience. 4. The brief facts of the case are as under: That on 23.06.2008 at about 09.30pm claimant was traveling in a Maruthi Van bearing Registration No.KA-53 M-8287 driven by one Jaseel slowly and carefully on the left side of the road by observing all traffic rules and regulations towards Bangalore International Airport. When the said Maruthi Van reached near Bettahalasur Cross, BB Road, a Tipper lorry bearing Registration No. KA-50 / 949 driven by its driver in a high speed and in a rash and negligent manner endangering human life, suddenly came and dashed against the Maruthi Van. Due to which the claimant and the driver of the Maruthi Van suffered head injuries and injuries to other parts of the body. The Maruthi Van was also severely damaged. 4. Immediately, the claimant was shifted to Colombia Asia Hospital and was admitted as an inpatient. After examination by the doctor it was found that the claimant had sustained fracture on the right foot, right hip acetabulum, dislocation of the right hip, fracture of left hip acetabulum, tear of the urinary bladders, laceration with loss of skin left eye lid, degloving injury of left leg, crush injury of right foot and fracture of both bones of leg and other injuries which are specifically mentioned in the wound certificate. Thereafter, skin grafting was done and he was discharged from the hospital on 08.07.2008 with advise to take complete bed rest and to take follow up treatment. 5. It is stated by the claimant that he spent about Rs.4 lakhs towards the medical treatment, nourishment and attendant charges. Thereafter, skin grafting was done and he was discharged from the hospital on 08.07.2008 with advise to take complete bed rest and to take follow up treatment. 5. It is stated by the claimant that he spent about Rs.4 lakhs towards the medical treatment, nourishment and attendant charges. He requires further treatment and surgery for removal of implants which would cost about Rs.2 lakhs. According to the claimant despite taking treatment he is still suffering from permanent disability due to multiple fracture, he is not able to walk fast, run, claim stairs, cannot use Indian type of toilet, squat and is confined to bed, due to which he require attendant for his care and attention. 6. At the time of the accident claimant was working as a cook with M/s Nukkad Hotel, Bangalore international Airport Terminal, Bangalore and getting salary of Rs.7,500/- per month. Due to the accident the claimant has been displaced and not in a position to work and has lost his future earnings for the rest of his life. He cannot squat for a longer duration as his profession is that of a cook which requires sitting for a longer duration. He claims that the accident has taken place due to the rash and negligent manner of driving of Tipper lorry. Accordingly, he sought for compensation to the tune of Rs. 20 lakhs in the claim petition. 7. Upon service of notice the respondents appeared before the Court. The respondent No.1 is the owner and respondent No.2 is the insurer of the Tipper lorry bearing Registration No.KA-50 / 949. Despite sufficient opportunity the respondent No.1 has not filed any statement of objections to the claim petition. The respondent No.2 filed statement of objections, wherein it is denied the claim made by the claimant. Amongst other grounds took up a plea that the claim petition is not maintainable for non-joinder and mis-joinder of necessary parties as the Insurer of the Maruthi Van has not been made as a party to the claim petition. Further, respondent No.2 took up a plea that the respondent No.1, who is the owner, has not informed about the accident and thereby violated the conditions of the Policy. The respondent No.2 admitted that the lorry bearing Registration No.KA-50 / 949 was insured with them for the period 28.09.2007 to 27.09.2008 vide Package Policy. Further, respondent No.2 took up a plea that the respondent No.1, who is the owner, has not informed about the accident and thereby violated the conditions of the Policy. The respondent No.2 admitted that the lorry bearing Registration No.KA-50 / 949 was insured with them for the period 28.09.2007 to 27.09.2008 vide Package Policy. The respondent No.2 further took up a plea that the respondent No.1 - owner of the lorry entrusted the said vehicle to a person who did not have a valid and effective driving licence to drive the said vehicle. Further, the driver Jaseel, who was driving Maruthi Van in a rash and negligent manner and has caused the accident due to his negligence and thereby he is responsible for contributory negligence towards cause of the accident. Further the respondent No.2 has denied the age, avocation, injuries caused and the medical treatment undergone and so also the future treatment to be taken by the claimant. Accordingly, he sought for dismissal of the claim petition. 8. After going through the pleadings the Tribunal framed following issues: " (1) Whether the petitioner proves that on 23.06.08 at about 9.30. p.m. near Betta Halasur Cross on B.H.Road, Bangalore within the limits of Chikkajala Police Station, in view of negligent use of a Tipper Lorry bearing No. KA-50-949 an accident took place resulting in the injuries to the petitioner? (2) Whether the petitioner is entitled for compensation ? If so, how much amount? (3) What order or award?" 9. On consideration of the material evidence and documents the Tribunal came to the conclusion that the accident has been caused due to the rash and negligent driving of the Tipper lorry bearing Registration No.KA-50 / 949, resulting in injuries to the claimant and awarded a total compensation in a sum of Rs.8,53,330/- by its order dated 27.10.2010. Aggrieved by the said judgment and award of the Tribunal, the appellant preferred an appeal in MFA No.3471/2011 seeking for enhancement of compensation on the ground that pursuant to the disposal of the claim petition the appellant had to spend huge money towards his further medical treatment he would require further amount for future treatment and hence sought for enhancement of compensation. The appeal was partly allowed and the matter was remanded to the Tribunal for fresh consideration with respect to enhancement of compensation of amount on account of further treatment undergone by the claimant. The appeal was partly allowed and the matter was remanded to the Tribunal for fresh consideration with respect to enhancement of compensation of amount on account of further treatment undergone by the claimant. After remand the claimant adduced further evidence and has produced further documents at Ex.P25 to P28. The claimant was cross examined by the respondent No.2 and after hearing both the parties the Tribunal came to a conclusion that the appellant is entitled for enhancement of compensation of Rs.9,92,100/- as total compensation by its order dated 04.09.2012 with interest @ 6%pa. 10. The claimant being aggrieved by the said Judgment and Award dated 04.09.2012 has approached this Court seeking enhancement of compensation. 11. I have heard the learned counsel appearing for appellant and respondent. 12. The learned counsel for the appellant contends that the compensation awarded by the Tribunal is meager and the Tribunal has not considered the evidence and material documents produced by the appellant while granting compensation under several heads. The learned counsel further contends that the Tribunal has erred in coming to the conclusion that the disability to the whole body is 20%, whereas the doctor, who is examined as PW3, on oath has stated that disability to 46% to the whole body. Therefore, the Tribunal holding 20% to the whole body is erroneous and against the Expert opinion of the doctor. It is further contention of the learned counsel that the Tribunal has erred in awarding a meager amount under the head of loss of amenities and compensation granted towards conveyance, food and nourishment and attendant charges despite long period of hospitalization and follow up treatment period shown by production of relevant documents as exhibits. The learned counsel further contended that the Tribunal has further erred in calculating the period where the claimant was laid up due to the accident and has not considered the fact that the claimant was unable to secure any job till date. Thereby he has lost the future earning capacity. It is further contended by the learned counsel for appellant that the Tribunal has awarded a meager amount towards future medical expenses, which requires enhancement. On the basis of the said submissions he sought for enhancement of just and reasonable compensation at the hands of this Court. 13. Thereby he has lost the future earning capacity. It is further contended by the learned counsel for appellant that the Tribunal has awarded a meager amount towards future medical expenses, which requires enhancement. On the basis of the said submissions he sought for enhancement of just and reasonable compensation at the hands of this Court. 13. Per contra, the learned counsel for respondent No.2 Insurance Company contends that the compensation award by the Tribunal is correct, just and reasonable and does not require any further enhancement and interference by this Court is not warranted. The learned counsel contends that the Tribunal has assessed the correct income of the appellant, despite the fact that appellant has not produced any document to prove his income. The learned counsel further contended that the claim petition ought to be dismissed and consequently, this appeal, in view of the fact that the appellant has not made the Insurer of the Maruthi Van as party to the claim petition. The learned counsel further contends that the accident has occurred due to the rash and negligent driving of the Maruthi Van and not because of any negligence on the part of the Tipper lorry as contended by the appellant. The learned counsel further contends that the damage has been caused to the front portion of the Maruthi Van thereby contributory negligence ought to have been attributed to the Maruthi Van, which was driven by one Jaseel. Therefore, this respondent is not solely responsible for the cause of the accident. Hence, on the said submission he sought for dismissal of the appeal. 14. After having heard the learned counsel for the respective parties, the following points arise for consideration: "(a) Whether the appellant / claimant is entitled for enhancement of compensation? (b) If so, to what extent?" 15. It is an undisputed facts that the accident has occurred on 23.06.2008 at 9.30pm on the Bangalore International Airport Road near Bettahalasur Cross on BB Road between Maruthi Van bearing Registration No.KA-53 M-8287 and Tipper lorry bearing Registration No. KA-50 / 949. It is also not disputed that the appellant came to be admitted to Colombia Asia Hospital, Bangalore and had taken treatment for grievous injuries suffered by him due to the accident. It is also not in dispute that thereafter appellant was admitted to Baby Memorial Hospital and further took treatment at The Kozhikode District Cooperative Hospital. It is also not disputed that the appellant came to be admitted to Colombia Asia Hospital, Bangalore and had taken treatment for grievous injuries suffered by him due to the accident. It is also not in dispute that thereafter appellant was admitted to Baby Memorial Hospital and further took treatment at The Kozhikode District Cooperative Hospital. It is also not disputed by the respondent No.2 with regard to the income taken by the Tribunal at Rs.4,500/- per month. The respondent No.2 has seriously disputed the disability of 46% to the whole body, which has been assessed by the PW3-Doctor and is in agreement with the Tribunal for having taken the disability at 20% for the whole body. 16. Now, I wish to analyze the evidence and the material documents produced by the parties. It is seen that the appellant was examined as PW2 in view of the fact that the driver of the Maruthi Van had also filed a claim petition in MVC No. 9174/2008, the said claim petition was clubbed with the claim petition of the appellant in MVC No.9179/2008 and common evidence was recorded wherein the driver of the Maruthi Van Jaseel was examined as PW1. 17. It is seen from the evidence of PW2 that the accident has been caused due to the rash and negligent driving of the driver of the Tipper Lorry and the jurisdictional Police has filed copies of FIR as per Ex.P1 and charge sheet against the driver of the Tipper lorry for the offences punishable under Sections 279 and 338 of IPC, which is produced and marked as Ex.P4. The sketch has been marked as Ex.P2. Therefore, it is seen as per Police records the driver of the Tipper lorry has been implicated for driving the lorry in a rash and negligent manner and has caused the accident to the Maruthi Van. It is also worthwhile to note here that the respondent No.2 has not challenged the charge sheet at Ex.P4. The learned counsel for the respondent has suggested in the cross examination of PW2 that the accident has occurred due to the rash and negligent driving of the driver of the Maruthi Van, which has been denied. Further, the respondent No.2 has not produced any documents or any cogent evidence to show that the Maruthi Van and its driver was responsible for the occurrence of the accident. Further, the respondent No.2 has not produced any documents or any cogent evidence to show that the Maruthi Van and its driver was responsible for the occurrence of the accident. It is also worthwhile to note here that the respondent No.2 has not led evidence and neither has he produced any documents to disprove the case of the claimant. Therefore, merely because the front portion of the Maruthi Van was damaged it cannot be held that the accident has occurred due to rash and negligent act of the driver of the Maruthi Van or that there has been contributory negligence by the driver of the Maruthi Van in the occurrence of the accident. Hence, I am not inclined to accept the arguments of the learned counsel for the respondent No.2 that there is a contributory negligence by the driver of the Maruthi Van. 18. Appellant has got examined PW3, who is doctor, who has clearly deposed that the appellant has suffered grievous injuries due to the accident. According to PW3 the injuries suffered by the appellant are as under: (1) Fracture of the 1st, 2nd, 3rd, 4th, 5th metatarsal bone of right foot; (2) Fracture of the right hip acetabulum; (3) Dislocation of the right hip; (4) Fracture of left hip acetabulum; (5) Tear of the urinary bladders; (6) Laceration with loss of skin left eye lid; (7) Degloving injury of left leg; (8) Crush injury of right foot; and (9) Fracture of both bones of leg It is the categorical statement of the PW3 on oath that the appellant has suffered grievous injuries with multiple fractures stated above and the disability to the whole body is permanent in nature. Therefore, there cannot be a doubt with regard to the opinion expressed by the doctor PW3, who has stated on oath that disability to the whole body is 46%, but the Tribunal has, for the reasons best known, has not accepted the said disability and has assessed the whole body disability at 20%. It is necessary to note that the appellant has undergone skin grafting of his left foot and left leg as per Ex.P25 and P26. It is necessary to note that the appellant has undergone skin grafting of his left foot and left leg as per Ex.P25 and P26. Since it would not be cured he was again admitted from 12.11.2010 till 07.12.2010 and thereafter the appellant has further stated that on 27.07.2012, despite all these treatment, his leg has not fully cured and he still requires plastic surgery for left foot and left leg. Therefore, the assessment of the Tribunal with regard to the disability to extent of 20% to the whole body is not commensurate with the grievous injuries suffered by claimant and documentary evidence produced and marked as Ex.P25 and P26. Therefore, I am of the opinion that the disability to the whole body is to be taken at 46% as opined by the Doctor PW3, who is the expert in medical field. 19. Further, in view of the fact that the appellant has not produced any material to substantiate his salary and income, the Tribunal has assessed the income at Rs.150/- per day and arrived at Rs.4,500/- to be the income of the appellant as he was working as a cook. This Court in several cases has been consistently taking the amount between Rs.4,500/- to Rs.5,000/- as income where there is no proof of income for the period 2008 and 2009. In view of the fact that the accident has occurred on 22.06.2008 and as the appellant is employed as a Cook in Bengaluru International Airport Terminal, a sum of Rs.5,000/- can be taken as monthly income of the appellant. Therefore, Rs.5,000/- X 12 would be Rs.60,000/-, which would be the annual income of the appellant. It is seen from the records that age of the appellant is 30 years and accordingly, multiplier that would be applicable for the age group between 26-30 is 17' as per the Judgment of the Hon'ble Supreme Court in the case of Sarla Verma v. DTC, (2009) 6 SCC 121 . Accordingly, the multiplier applicable in this case would be 17'. 20. In view of the above, the disability suffered at 46% to the whole body, the income of the appellant being Rs.60,000/- per annum, which comes to Rs.60,000/- X 46/100 = Rs.27,600/-, which would be the loss of future earning per annum. Accordingly, the multiplier applicable in this case would be 17'. 20. In view of the above, the disability suffered at 46% to the whole body, the income of the appellant being Rs.60,000/- per annum, which comes to Rs.60,000/- X 46/100 = Rs.27,600/-, which would be the loss of future earning per annum. As stated above, the multiplier applicable in the present case is 17', the loss of future earning would be Rs.27,600 X 17 = Rs.4,69,200/- , as against Rs.1,83,600/- awarded by the Tribunal. 21. The Tribunal has awarded a sum of Rs.30,000/- towards loss of amenities and further unhappiness. I find that the amount awarded under this head is on the lower side and accordingly, sum of Rs.50,000/- is awarded under this head as against Rs.30,000/- awarded by the Tribunal. 22. The appellant has undergone severe traumatic experience due to the occurrence of the accident and has undergone several surgeries and treatment. Accordingly, under the head of pain and suffering the Tribunal has awarded a sum of Rs.1,00,000/- , which is just and reasonable and cannot be interfered with. 23. It is seen that the appellant has produced medical bills and the Tribunal has awarded a sum of Rs.5,50,000/- under the head medical expenses towards treatment. The same does not require any interference as the same is awarded by the Tribunal keeping in mind the medical bills and other documents produced by the appellant. 24. It is seen that the appellant has under gone treatment for several days in Colombia Asia Hospital, Baby Memorial Hospital and Kozhikode District Cooperative Hosital as an inpatient and during this period of six months he has incurred expenses towards conveyance, nourishment and attendant charges. A sum of Rs.30,000/- is awarded under this head as against Rs.15,000/- as awarded by the Tribunal. 25. The Tribunal has awarded a sum of Rs.1,00,000/- towards future medical expenses, I do not find any reason to enhance the same as no documents are produced by the appellant to show the requirement of higher amount towards any future treatment. 26. It is seen that the appellant has not been able to attend to his work for a peiod of six months due to the injuries suffered in the accident and hence the appellant is entitled to Rs.4,500/- X 6 = Rs.27,000/- towards loss of earning during laid up period as against Rs.13,500/- awarded by the Tribunal. 27. 26. It is seen that the appellant has not been able to attend to his work for a peiod of six months due to the injuries suffered in the accident and hence the appellant is entitled to Rs.4,500/- X 6 = Rs.27,000/- towards loss of earning during laid up period as against Rs.13,500/- awarded by the Tribunal. 27. Therefore, in view of the above I am of the opinion that the compensation awarded by the Tribunal requires to be enhanced as the Motor Vehicle Act is a social welfare Legislation and there cannot be a straight jacket formula in awarding the compensation more so when the documents are produced to show that the victim of the accident, the appellant herein, has suffered grievous injuries and despite treatment is not cured of those injuries and thereby requires further treatment in due course of time. Hence, in order to award just and reasonable compensation the order of the Tribunal is hereby modified to the extent shown below under each of the heads: SL. NO. HEADS AMOUNT 01 Pain and sufferings Rs.1,00,000/- 02 Loss of future earning capacity Rs.4,69,200/- 03 Medical expenses Rs.5,50,000/- 04 Conveyance, nourishment and attendant charges Rs. 30,000/- 05 Future medical expenses Rs.1,00,000/- 06 Future unhappiness and loss of amenities Rs. 50,000/- 07 Loss of earning during the laid down period Rs. 27,000/- Total Rs.13,26,200/- 28. Accordingly, the appeal is partly allowed and the appellant is entitled to compensation in a sum of Rs.13,26,200/- as against Rs.9,09,200/- awarded by the Tribunal. The enhanced amount shall be deposited by the respondent No.2 before the Tribunal concerned, within a period of eight (8) weeks from the date of this order.