Nawaz Pasha Sab Vs G. B. Rangaswamy, P. Venkatachalam and The Manager National Insurance Co. Ltd.

H.S. Kempanna

1. Though this matter is listed for orders, with consent of learned counsels for respective parties, as records have also been received, it is taken up for final disposal.

2. This appeal is by the claimant seeking for enhancement of compensation in respect of the personal injuries sustained by him in a motor accident that took place on 1.7.2008 at about 6.15 p.m. near AC office situated on P.B.road, Davangere involving the bus bearing Regn.No.KA-17/A 5670, driven by the first respondent, owned by the second respondent and insured with the third respondent at the relevant point of time. In the impugned accident he sustained grievous injuries which comprises of fractures for which he took treatment in the hospital for 9 days. He spent huge money for the treatment of his injuries. Despite the same, he is not completely cured of the injuries as such, he is unable to carry on his avocation which has resulted in loss of income to him. Accordingly, he sought for grant of compensation.

After service of notice, the first respondent-driver remained absent and hence, he was placed exparte. Respondents 2 and 3 owner and insurer of the offending bus appeared and contested the claim of the claimant. The second respondent-owner contended that the accident in question has not taken place due to the fault of the driver of his bus, on the other hand, it was due to the negligence of the claimant himself. He further contended that his driver did possess valid and effective driving licence to drive the bus in question. At the time of accident he had insured his vehicle with the third respondent-insurer and if for any reason he is held liable to pay any compensation, the same be fastened on the third respondent-insurer. Accordingly, he prayed for dismissal of the petition.

The third respondent-insurer also contended that the accident in question has not taken place on account of the fault of the driver of the bus, on the other hand, it is due to the negligence of the claimant himself. It is further contended that the driver of the offending bus did not possess valid and effective driving licence and as such, there is breach of terms and conditions of the policy committed by the owner. They also denied all other averments made by the claimant in his claim petition and contended that they are not liable to pay any compensation and accordingly sought for dismissal of the petition as against them.

On the basis of the above pleadings, the Tribunal framed in all four issues.

The claimant in support of his case got himself examined as PW1 and the doctor who had treated him as PW2. He has produced in all 53 documents which came to be marked as exhibits P1 to P53.

On behalf of the respondents, they did not choose to lead any oral evidence, on the other hand, they got produced one document which came to be marked as Ex.R1.

The tribunal on considering the oral and documentary evidence on record placed before it held that the accident has occurred solely on account of the driver of the offending bus and accordingly, the claimant has established actionable negligence. Further, looking to the evidence of the claimant and the medical officer who has examined him and the documents placed on record, awarded total compensation of Rs. 1,22,880/- with interest at 6% p.a. from the date of the petition till realisation and further saddled the liability of payment of compensation on the third respondent-insurer.

The appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.

3. Learned counsel appearing for the appellant-claimant submitted that the Tribunal has erred in not awarding commensurate compensation to the appellant/claimant under all heads despite the claimant placing clinching evidence supported with documents. Hence, a case for enhancement is made out.

4. Per contra, Learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.

5. Taking the rival submissions into consideration and the papers that are made available, the point that arises for my consideration is:

Whether the appellant-claimant has made out a case for enhancement of the compensation?

6. Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment that he has taken and the amount spent are not in dispute. The evidence on record and the documents placed on record reveal that the claimant in the impugned accident has sustained injuries to his zygomatic region, right maxillary sinus with heamosinus and he has also suffered mild cerebral edema. He took treatment in the hospital for nine days. His testimony is fortified from the evidence of PW2. the medical officer and the wound certificate Ex.P5 placed on record. A perusal of evidence of PW2 medical officer reveals the claimant has sustained the following injuries as revealed from the CT scan taken :-

1) Fracture of anterior and lateral wall of right maxillary sinus with haemosinus noted;

2) Fracture of right zygomatic arch;

3) Mild cerebral edema

4) Soft tissue defect left high parietal region.

He was treated in Bapuji hospital from 1.7.2008 to 9.7.2008 and was advised to go for follow-up treatment.

He has further stated that he has assessed the disability to an extent of 25% for post-traumatic epilepsy. Taking these material on record, the Tribunal has awarded Rs. 25,000/- towards injury, pain and suffering. In my view having regard to the two fractures he has sustained coupled with the other two injuries, I deem fit to award a further sum of Rs. 5,000/- in addition to Rs. 25,000/- awarded by the Tribunal towards injury, pain and suffering.

7. Further, the tribunal has awarded a sum of Rs. 20,000/- towards medical expenses relying upon the medical bills Exs.P11 to P33 supported with the prescriptions Exs.P34 to P35. The Tribunal accepting the genuineness of the said bills has awarded the said sum towards medical expenses. No grievance in respect of the same was made before this Court. Therefore, the same does not call for any modification.

8. Further, the Tribunal has awarded a sum of Rs. 20,000/- towards loss of amenities. Having regard to the nature and degree of the injuries sustained, the said sum of Rs. 20,000/- awarded by the Tribunal towards loss of amenities is also just and proper and does not call for any modification.

9. Further, the Tribunal has not considered the case of the claimant for awarding any compensation towards conveyance, nourishing food and attendant charges. As already stated, the claimant has stated after the accident he took treatment in the hospital for nine days. Having regard to the nature of injuries the claimant has sustained, it follows that he must have taken follow-up treatment also after discharge. The accident has taken place on 1.7.2008. Taking all these factors into consideration, it follows that he must have spent some amount towards conveyance, nourishing food and attendant charges. Therefore, under the circumstances, he is awarded a sum Rs. 5,000/- towards conveyance, nourishing food and attendant charges.

10. The next aspect that dwells upon for consideration is the determination of income of the claimant, compensation to be awarded towards loss of income during laid-up period and future loss of income. The claimant has claimed that he is aged 30 years an auto-driver by profession earning a sum of Rs. 5,000/-p.m. In support of his claim, he has not placed any clinching evidence before the Court and he has not even produced the driving licence to show that he is a driver. The Tribunal in the absence of all these materials, taking his age and the date of accident has determined his income at Rs. 3,000/- p.m. As already pointed out, the claimant is aged 30 years and the accident has taken place on 1.7.2008. Therefore, under these circumstances, we can safely hold that the claimant would have earned at least a sum of Rs. 125/- to Rs. 150/-per day and taking the same into consideration, I deem fit to determine the income at Rs. 4,000/- instead of Rs. 3,000/- determined by the Tribunal.

Further, the Tribunal has awarded only a sum of Rs. 6,900/- towards loss of income during laid-up period for a period of 69 days. Having regard to the nature of injuries which he has sustained, I am of the view that the claimant could not have attended to his work atleast for a period of three months for which period he should be compensated towards loss of income during laid up period. Having determined his income at Rs. 4,000/- the claimant is awarded a further sum of Rs. 12,000/- as against Rs. 6,900/- awarded by the Tribunal towards loss of income during laid-up period.

11. The next aspect that falls for consideration is compensation to be awarded towards loss of future income. The claimant is aged 30 years. Therefore, the proper multiplier that becomes applicable is 17, which is not in dispute. His income has been determined at Rs. 4,000/- p.m. The evidence of the medical officer PW2 discloses that the claimant has disability of 25% of post traumatic epilepsy. Taking the same into consideration in the facts and circumstances, we can safely determine the permanent disability that the claimant has when compared to the whole body is to the extent of 9%. Therefore, taking all these factors into consideration the claimant, in my view, is entitled to Rs. 73,440/- ( Rs. 4,000 x 12 x 17 x 9/100) towards future loss of income as against Rs. 50,980/- awarded by the tribunal.

12. Thus, in all the appellant/claimant is entitled to total compensation of Rs. 1,60,440/- with interest at 6% p.a. from the date of the petition till realisation as against Rs. 1,22,880/- with interest at 6% p.a. from the date of the petition till realisation awarded by the Tribunal. Accordingly, the appeal has to succeed in part. The break up of compensation is as follows :-

13. In the result for the foregoing reasons, I proceed to pass the following:

ORDER

1) Appeal is allowed in part.

2) The impugned judgment and award of the Tribunal is modified and the appellant is awarded a total compensation of Rs. 1,60,449/-with interest at 6% per annum from the date of petition till realisation as against Rs. 1,22,880/-with interest at 6% per annum from the date of petition till realisation awarded by the Tribunal. The enhanced compensation comes to Rs. 37,560/- with interest at 6% per annum from the date of petition till realisation.

3) The third respondent herein-Insurer shall deposit the entire enhanced compensation of Rs. 37,560/- with interest at 6% per annum from the date of petition till realisation before the Tribunal within four weeks from the date of receipt of the copy of the judgment and award.

4) On deposit of the enhanced compensation with interest, a sum of Rs. 25,000/- with proportionate interest is ordered to be deposited in the name of the appellant in any nationalised/scheduled bank for a period of five years renewable for a further period of five years. He is entitled to withdraw the interest accrued on the said deposit periodically. The balance compensation of Rs. 12,560/- with proportionate interest shall be released in favour of the appellant/claimant.

Office to draw the award accordingly.