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2022 DIGILAW 18 (KAR)

Mohana v. M. Shakthi Selvam

2022-01-03

RAVI V.HOSMANI

body2022
JUDGMENT 1. Challenging the judgment and award dtd. 5/12/2018 passed by the II Additional District and Sessions Court and Additional Motor Accident Claim Tribunal at Hassan (hereinafter referred to as 'Tribunal' for short), in MVC No.1051/2017, this appeal is filed. 2. Brief facts as stated are that on 6/11/2016 at about 10.45 p.m., claimant was riding his motorcycle bearing Reg.no.KA-13-EB-2663, on Hassan - Belur Road. He sustained grievous injuries when driver of Maruti Swift Car bearing Reg. No.TN-38-BV-8489, drove it in a rash and negligent manner and dashed against claimant's motor cycle, near Hosur Village. He was admitted to Government Hospital at Hassan and thereafter, to Kanchuru Hospital, Mangalore. Despite taking treatment, he did not recover fully and sustained permanent physical disability and consequent reduction in earning capacity. Claiming compensation for the same, he filed claim petition against owner and injurer of Maruti Swift Car under Sec. 166 of MV Act. 3. On service of notice, respondent No.2 - Insurer opposed claim petition on all counts. 4. Based on pleadings, Tribunal framed following issues: 1. Whether the petitioner proves that he sustained grievous injury on 6/11/2016 at about 10.45 p.m. at Hosuru Village, Hassan - Belur Road, it was due to rash and negligent driving of the driver of the Maruti Swift Car bearing No.TN.38.BV.8489? 2. Whether the petitioner is entitled for compensation? If so, from whom? 3. What order or award? 5. In support of claim petition, claimant examined himself as PW1 and one witness as P.W.2. Exs.P.1 to P.20 were marked. On the other hand, respondent no.2 neither adduced any evidence nor produced any documents. 6. On consideration, Tribunal answered issue no.1 in affirmative; issues no.2 and 3 partly in affirmative by allowing claim petition in part awarding compensation of Rs.4,88,000.00 with interest at 6% per annum, against owner and insurer. The Tribunal framed issues and held that accident occurred due to rash and negligent driving of car by its driver, that car was insured with 2nd respondent and its driver was having valid driving licence on date of accident. The Tribunal determined age of claimant as 30 years, his monthly income as Rs.9,000.00 notionally and functional disability, referring to evidence of P.W.2 - Dr. Sreeranga N. at 12% and awarded total compensation of Rs.4,88,000.00. Not satisfied with award, claimant is in appeal. 7. Sri. The Tribunal determined age of claimant as 30 years, his monthly income as Rs.9,000.00 notionally and functional disability, referring to evidence of P.W.2 - Dr. Sreeranga N. at 12% and awarded total compensation of Rs.4,88,000.00. Not satisfied with award, claimant is in appeal. 7. Sri. Narendra Gowda, learned counsel appearing for appellant - claimant submitted that impugned award passed by Tribunal was not commensurate to facts of the case and evidence on record. It was submitted that claimant sustained fracture of right femur as well as fracture of right forearm and right talus and metatarsals etc., as indicated in Ex.P.3 - Wound Certificate. However, Tribunal awarded a meager compensation of Rs.40,000.00 towards pain and suffering. It was further submitted that claimant took treatment as inpatient for total period of 99 days. However, Tribunal awarded meager compensation of Rs.20,000.00 towards conveyance charges, Rs.20,150.00 towards nourishment charges, which was grossly inadequate. It was further submitted that despite evidence of P.W.2 regarding requirement of one more operation for removal of implants, Tribunal did not award any compensation towards future medical expenses and also did not award any compensation towards loss of amenities. It was further submitted that though accident occurred during year 2016 and claimant was driver by profession, Tribunal determined his monthly income at meager sum of Rs.9,000.00, which required enhancement. 8. On the other hand, Sri.H.C. Vrushabhendraiah, learned counsel appearing for respondent no.2 - Insurer, supported the award and opposed enhancement. It was submitted that though claimant stated that he was a driver, he failed to substantiate the same. He also failed to produce driving licence. Therefore, on overall consideration, compensation awarded, taking his occupation as coolie was just and proper and no enhancement was called for. 9. Heard learned counsel for the parties and perused the records. 10. From the above submissions, occurrence of accident, due to rash and negligent driving of insured vehicle by its driver and liability of respondent - insurer to pay compensation and with regard to injuries sustained are not in dispute. The Tribunal has awarded compensation. The Insurer has not challenged the award. Only claimant is in appeal seeking enhancement. Thus, the point that arises for my consideration is: 'Whether the claimant is entitled for enhancement of compensation as sought for?, 11. The Tribunal has awarded compensation. The Insurer has not challenged the award. Only claimant is in appeal seeking enhancement. Thus, the point that arises for my consideration is: 'Whether the claimant is entitled for enhancement of compensation as sought for?, 11. In order to substantiate the injuries, claimant has produced wound certificate at Ex.P.3, Medical Bills as per Ex.P.7, prescription, photos, discharge summary, case sheet, OPD Card, X-ray, CD MLD and OPD book as per Exs.P.7 to 20 respectively. He also examined Dr.Sreeranga as P.W.2. As per Ex.P.3 claimant sustained fractures of both bones of right forearm, fracture of shaft and right femur, fracture of both bones of right leg, fracture of right talus. The fractures are opined to be grievous in nature. 12. Tribunal awarded a sum of Rs.40,000.00 towards pain and suffering. As fractures are grievous in nature, award of Rs.40,000.00 towards pain and suffering would be inadequate. It would be just and proper to enhance the compensation to Rs.60,000.00. Claimant has produced medical bills for a sum of Rs.1,37,494.00. The tribunal has awarded the same towards full reimbursement. Hence, there is no scope for enhancement. The tribunal has also awarded a sum of Rs.50,000.00 towards loss of income during laid-up period. Considering duration of inpatient treatment and period of recuperation required, award appears to be just and proper. Insofar as future loss of income, tribunal has determined monthly income of claimant at Rs.9,000.00 on notional basis. Accident occurred during the year 2016, notional income for the year 2016 as adopted by the Karnataka State Legal Services Committee for settlement of cases before Lok Adalath is Rs.9,500.00. Therefore, tribunal would not be justified in taking it at Rs.9,000.00, indeed claimant has failed to establish his avocation as a driver. He has not produced driving licence, nor examined his employer. Therefore, his occupation has to be considered as coolie. As per evidence of PW-2, claimant sustained permanent physical disability in respect of affected limbs at 35%. However, during cross-examination, PW-2 admitted that he did not examine x-rays or treatment records of prior treatment taken by claimant in other hospitals and that claimant was examined only for assessment of disability. PW-2 was unable to confirm date of admission of claimant for treatment. However, during cross-examination, PW-2 admitted that he did not examine x-rays or treatment records of prior treatment taken by claimant in other hospitals and that claimant was examined only for assessment of disability. PW-2 was unable to confirm date of admission of claimant for treatment. Based on said evidence, tribunal assessed physical disability to the extent of 12%, which in the facts and circumstances of this case, appears just and proper and no enhancement is called for. The tribunal determined age of claimant at 30 years. Appropriate multiplier applicable would be 17'. Thus, award towards future loss of income would be: Rs.9,500.00 x 12% x 12 x 17 = Rs.2,32,560.00 13. Tribunal has awarded a sum of Rs.20,000.00 towards conveyance and Rs.20,150.00 towards nourishment charges. Considering duration of treatment as inpatient, said award would be inadequate. It would be just and proper to award a sum of Rs.60,000.00 towards the same. Tribunal has not awarded compensation towards loss of amenities. In view of evidence on record, it would be appropriate to award Rs.40,000.00 towards loss of amenities. Claimant requires one more operation for removal of implants. Tribunal has not awarded future medical expenses. It would be appropriate to award Rs.25,000.00 towards the same. Hence, total compensation would be: Pain and suffering Rs.60,000.00 Medical expenses Rs.1,37,494.00 Loss of earning during treatment Rs.50,000.00 Loss of future earning capacity Rs.2,32,560.00 Conveyance charges Rs.60,000.00 Nourishment charges Rs.40,000.00 Future medical expenses Rs.25,000.00 Total Rs.6,05,054.00 Point for consideration is answered partly in affirmative. Hence, I pass this ORDER 1. Appeal is allowed in part with costs. 2. Claimant is held entitled for enhanced compensation of Rs.6,05,054.00 as against Rs.4,88,000.00 awarded by tribunal, with 6% interest from date of claim petition till deposit. 3. Insurance company is directed to deposit the award amount within a period of six weeks from date of receipt of this order. 4. The directions issued by tribunal regarding proportion of deposit and release would apply to enhanced compensation also.