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2023 DIGILAW 349 (KAR)

C. R. Hanumanthappa v. Shankar D Gowda

2023-03-01

K.S.MUDAGAL, RAJENDRA BADAMIKAR

body2023
JUDGMENT/ORDER K.S.MUDAGAL, J. - "Whether the compensation awarded to the appellant under the impugned award is just"? is the question involved in this case. 2. The appellant was the claimant in M.V.C.No.921/2012 on the file of the II Addl. Senior Civil Judge and Addl. Motor Accident Claim Tribunal-8, Shivamogga. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal. 3. On 19/7/2012 at about 12.45 p.m. when the appellant was driving his auto rickshaw bearing registration No.KA-14-A-7333 near Nandi Petrol Bunk, Kuvempu road, Shivamogga City, the Maruthi Omni Ambulance bearing registration No.KA-14-M-2332 hit the auto rickshaw of the appellant and caused the accident. In the accident the appellant suffered grievous injuries and his auto rickshaw was damaged. 4. The appellant was shifted to Mc.Gann hospital, Shivamogga. From there he was shifted to Sanjay Gandhi Institute of Trauma and Orthopedic Centre, Bengaluru. He was treated in the said hospital as inpatient between 19/7/2012 to 18/8/2012. He underwent surgeries in the said hospital for the fracture suffered by him. At the relevant time respondent Nos.1 and 2 were the registered owner and insurer of the Maruthi Omni Ambulance bearing registration No.KA-14-M-2332. 5. On the complaint of the wife of the claimant alleging that accident occurred due to the actionable negligence on the driver of the Maruthi Omni Ambulance bearing registration No.KA-14-M-2332, Shivamogga Traffic Police registered FIR as per Ex.P1 in Crime No.177/2012 against the driver of the Maruthi Omni Ambulance. On investigation, the police filed the charge sheet and driver of the car pleaded guilty as per Ex.P6. He was sentenced to fine. 6. The claimant filed MVC No.921/2012 against the respondents claiming compensation of Rs.18, 95, 000.00 for the personal injuries as well as for the damages caused to his auto rickshaw on the ground that the accident occurred due to the actionable negligence of the driver of the Maruthi Omni Ambulance bearing registration No.KA14-M-2332. He further contended that due to the injury suffered by him in the accident he has suffered permanent physical disability and loss of future earnings. 7. The respondents contested the petition denying the rashness and negligence on the part of the driver of the Maruthi Omni Ambulance, the injury suffered by the appellant and the permanent physical disability, his age, occupation and income. 7. The respondents contested the petition denying the rashness and negligence on the part of the driver of the Maruthi Omni Ambulance, the injury suffered by the appellant and the permanent physical disability, his age, occupation and income. They contended that the accident occurred due to the negligence on the part of the claimant himself. 8. In support of his case, the claimant was examined as Pw.1 and Exs.P1 to P94 were marked on his behalf. The respondents did not lead any oral evidence. On their behalf Exs.R1 to R4 were marked. There was no dispute at the time of the accident. The offending car was insured with second respondent. 9. The Tribunal on hearing the parties by the impugned award held that the accident occurred due to the actionable negligence on the part of the driver of the Maruthi Omni Ambulance bearing registration No.KA-14- M-2332. The Tribunal relying on the Exs.P4, P5, P8 and P9 held that in the accident the appellant suffered grievous injuries but failed to establish that he has suffered permanent physical disability by examining the concerned doctor. 10. The Tribunal in all awarded compensation of Rs.2, 18, 600.00 on different heads payable by the second respondent-insurer as per the table below. Submission of Smt.Vidya.R.Gowda, learned counsel for the appellant: 11. The medical records produced by the claimant clearly show that he has suffered permanent physical disability. Therefore, the Tribunal should have awarded him the compensation for loss of future earnings. The compensation awarded on the other heads is on lower side. Submission of Sri.P.B.Raju, learned counsel for respondent No.2 and Sri.U.Panduranga Naik, learned counsel for respondent No.1. 12. Since the claimant himself did not examine the doctor to prove the disability, the Tribunal was justified in not awarding compensation on the head of loss of future earnings. The compensation awarded on the other heads is just one. Analysis 13. The respondents have not challenged the finding of the Tribunal that accident occurred due to the actionable negligence on the part of the driver of the Maruthi Omni Ambulance bearing registration No.KA-14- M-2332. Respondent No.2 has not challenged its liability or coverage of the insurance. Therefore, the only question is whether the compensation awarded is just one. 14. Analysis 13. The respondents have not challenged the finding of the Tribunal that accident occurred due to the actionable negligence on the part of the driver of the Maruthi Omni Ambulance bearing registration No.KA-14- M-2332. Respondent No.2 has not challenged its liability or coverage of the insurance. Therefore, the only question is whether the compensation awarded is just one. 14. The Tribunal relying on Ex.P4 -discharge summary of MC.Gann Hospital, Shivamogga, Ex.P5 -Case summary and discharge record issued by Sanjay Gandhi Institute of Trauma and Orthopedic Centre, Bengaluru, Exs.P8 and P9 -wound certificates issued by the aforesaid institution held that the appellant had suffered the following injuries: (1) Fracture of both bones of left forearm (2) Fracture of 3rd to 9th ribs left side (3) Fracture of left side Illeum and such injuries were grievous in nature. 15. The findings of the Tribunal that for such injuries the claimant was treated as indoor patient in Sanjay Gandhi Institute of Trauma and Orthopedic Centre, Bengaluru for one month between 19/7/2012 and 18/8/2012 is also not in question. The claimant contended that he has suffered permanent physical disability, due to such injuries. As observed by the Tribunal despite issuing commission for examination of the doctor who treated him, the appellant did not take further steps for examination. Therefore, the permanent physical disability of the appellant was not proved. Therefore, the Tribunal was justified in not awarding any compensation on the head of loss of future earnings. 16. However, having regard to the nature of injuries suffered by the claimant and the period of his hospitalization and treatment taken by him, the compensation awarded on the head of pain and suffering is on the lower side. He had suffered hip fracture and the fracture of two bones in the left forearm which are the weight bearing bones. There were fractures of two ribs. Therefore, the Tribunal should have awarded sum of Rs.1, 00, 000.00 under the head of pain and suffering. 17. The compensation awarded on the head of medical expenses, auto rickshaw repair charges was based on the evidence adduced. That needs to be maintained. The compensation awarded on the heads of conveyance, attendant charges, food and nourishment also needs to be maintained as the appellant was hospitalized for about one month. 18. 17. The compensation awarded on the head of medical expenses, auto rickshaw repair charges was based on the evidence adduced. That needs to be maintained. The compensation awarded on the heads of conveyance, attendant charges, food and nourishment also needs to be maintained as the appellant was hospitalized for about one month. 18. The compensation was awarded on the head of loss of income during laid up period considering the notional income of the appellant at the rate of Rs.6, 000.00 p.m. The appellant was running his own auto rickshaw. He was aged 54 years. The accident occurred when he was carrying the passengers in the auto rickshaw. Considering such factors, prevailing wage rates and cost of living during the said period the notional income assessed by the Tribunal is on lower side. The Tribunal should have taken the same at Rs.7, 000.00p.m. The Tribunals finding that claimant was in-disposable for six months is not challenged. Therefore, the compensation payable on the head of loss of income during the laid up period is Rs.42, 000.00 (Rs.7, 000.00 X 6). 19. The Tribunal has not awarded any compensation on the head of loss of amenities. The medical records show that the appellant had suffered multiple fractures in ribs, left forehand, in his hip and indisposable for six months. Therefore, certainly he has suffered loss of comforts in life for about six months. Considering that the Tribunal should have awarded Rs.1, 00, 000.00 on the head of loss of amenities. Therefore, the just compensation is as follows: 20. For the aforesaid reasons, the appeal deserves to be allowed in part. Hence the following: ORDER The appeal is partly allowed. The impugned award is modified as follows: (i) The claimant is entitled to compensation of Rs.3, 84, 600.00 with interest thereon at 6% per annum from the date of the petition till its realization. (ii) Respondent Nos.1 and 2 are jointly and severally liable to pay the said compensation. (iii) Respondent No.2 shall deposit the said amount before the Tribunal, after adjusting the amount already deposited if any, within four weeks from the date of receipt of copy of this award. (iv) On such deposit, the Tribunal shall release the entire compensation to the claimant.