(Prayer: This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 17.11.2015 passed in MVC No.455/2013 on the file of the Principal Senior civil Judge & CJM & MACT, Kolar, partly allowing the claim petition for Compensation and seeking enhancement of Compensation.)
1. The present appeal has been preferred by the appellant-claimant being aggrieved by the judgment and award passed by the Prl. Senior Civil Judge and MACT at Kolar, in MVC No.455/2013 dated 17.11.2015.
2. Heard. Appeal is admitted and with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
3. The brief facts of the case are that on 5.6.2013 at about 9.30 a.m. petitioner was proceeding on a motorcycle bearing Registration No.KA.07 K.8389 and when he came near Thumatagere village, a KSRTC bus bearing Registration No.KA.
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07 F.1175 came from opposite direction and dashed to the motorcycle on which the petitioner was proceeding and as a result of the same he fell down and sustained grievous injuries. Immediately he was shifted to R.L.Jalappa hospital, Kolar and thereafter he was shifted to Hosmat Hospital, Bengaluru, wherein he was admitted and he has been treated to the injuries suffered by him.
4. It is the contention of the petitioner that he was working as a labourer and was earning Rs.15,000/- per month, because of the injuries now he is not in a position to work as before. Hence, the petitioner has filed a petition under Section 166 of the Motor Vehicles Act claiming compensation.
5. In pursuance of the notice, respondent- Corporation appeared and filed its written statement contending that the driver of the said bus was driving with cautiously and carefully and the driver stopped the bus forcibly and the rider of the motorcycle without observing the on coming bus drove his motorcycle rashly and negligently and dashed to the bus. It is also contended that the rider of the motorcycle was not holding effective and valid driving licence and on these grounds he prayed for dismissal of the said petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that he had sustained injuries in the accident due to the rash and negligent act of the driver of KSRTC bus bearing Registration No.KA.07 F.1175 which occurred on 5.6.2013 at about 9.30 a.m. near Thumatagere village on Bangarpet-Budhikote Main Road?
2. Whether petitioner is entitled for compensation? If so, from whom and how much?
3. What relief?
7. In order to prove the case of the petitioner, petitioner got himself examined as PW1 and Dr.Krishan Prasad came to be examined as PW2 and got marked the documents Exs.P1 to P19. The respondent got examined as RW1 and no documents were marked. After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the appellant-claimant is before this Court.
8. It is the contention of the appellant-claimant that the compensation awarded is not adequate and sufficient. It is further contended that the injuries suffered by the appellant-claimant was serious in nature and there is even likelihood of the amputation of the leg. He further contended that there is shortening of 4" of the right lower limb. The said aspect has not been considered and appreciated by the Tribunal. He further contended that the Doctor who came to be examined as PW2 has categorically stated in his evidence that for the purpose of future surgeries an amount of Rs.2,50,000/- is required, but the Tribunal has not awarded any compensation for future medical expenses. He further contended that the doctor has assessed the disability to the extent of 79% to a particular lower limb and 27% to the whole body, but the Tribunal has erroneously took 20% disability and assessed the compensation on the lower side. He further contended that the Tribunal has not awarded any compensation under the head of loss of income during the laid up period. On these grounds he prayed for allowing the appeal by enhancing the compensation.
9. Per contra, the learned counsel appearing on behalf of the respondent-Corporation vehemently argued by contending that the compensation awarded is adequate and just. The doctor who came to be examined is not trustworthy and reliable. The doctor's in his evidence has deposed that for the purpose of future surgeries it requires an amount of Rs.2,50,000/-. He has further contended that the compensation assessed by taking 20% disability is already on the higher side. If 1/3rd of the disability have been taken , then under such circumstances, it will be less than 20%. In that light the compensation awarded is just and proper and the same requires to be confirmed.
10. The accident in question is not in dispute so also involvement of the offending vehicle insured with the respondent insurer.
11. As could be seen from the judgment and award, it indicates that the claimant has suffered shattered comminuted intra articular, fracture of right femur, type III open shattered fracture-right tibia and fibula with a large wound and severe contamination and severe degloving fracture-right patella and he was admitted to Hosmat Hospital on 5.6.2013 and discharged on 27.7.2013. Even the records clearly indicate the major wound debridement, cross leg flap and major split skin grafting was done and division of cross leg flap was done.
12. In order to prove the disability, PW2 came to be examined and in his evidence he has assessed the disability to the extent of 79% to the lower limb and 27% to the whole body. Though the appellant- claimant contended that he was working as a labourer and earning Rs.15,000/- per month, to substantiate the said fact, no document has been produced. In the absence of documents, keeping in view the evidence of the doctor, the Tribunal by taking the notional income at the rate of Rs.6,000/- per month and by taking the disability to the extent of 20% has awarded an amount of Rs.2,59,200/- towards loss of future income.
13. Though under the normal circumstances the said compensation appears to be justifiable, admittedly the accident is of the year 2013 and during that particular period, the notional income of Rs.8,000/- is the yardstick which is even used to be adopted for settlement of cases before the Lok- Adalath and even by taking the disability to the extent of 20% as taken by the Tribunal and if the compensation is re-assessed, then under such circumstances, the appellant-claimant is entitled to Rs.3,45,600/- towards loss of future income.
14. Even as could be seen from the judgment and award the compensation awarded under the head of pain and sufferings appears to be on the lower side. In the light of the injuries suffered and the period of treatment, I feel that if additional Rs.10,000/- is awarded, it would meet the ends of justice and also another Rs.10,000/- is awarded under the head of attendant, nourishment and diet.
15. Even as could be seen from the judgment and award no compensation has been awarded under the head of loss of income during the laid up period and also no compensation has been awarded for loss of future medical expenses. Even as could be seen from the records though the doctor PW2 in his evidence has deposed that for the future surgeries the claimant is required an estimated cost of Rs.2,50,000/-, what is the nature of operation, how and in what manner the said expenses are going to be incurred has not been specifically elicited from the mouth of the said doctor. Even on perusal of the evidence of doctor it clearly goes to show that he has given that amount approximately without there being any proper prescription. In that light, I feel, if an amount of Rs.20,000/- is awarded for future medical expenses, it would meet the ends of justice and even the record indicates that the claimant has been admitted on 5.6.2013 and discharged on 27.7.2013 and during that particular period he must have lost some income. In that light, an amount of Rs.24,000/- is awarded under the head of loss of income during the laid up period.
16. Taking into consideration the above said facts and circumstances, the appellant-claimant is entitled to a total compensation of Rs.7,89,600/-. Since already the Tribunal has awarded an amount of Rs.6,39,200/-, after deducting the same, the appellant-claimant is entitled to an additional compensation of Rs.1,50,400/- with 6% interest.
17. Accordingly, the appeal is allowed in part and the judgment and award passed in MV No.455/2013 is modified as indicated above.
18. The respondent-Corporation is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court with up-to-date interest within a period of six weeks from the date of receipt of copy of this order.
The Registry is directed to draw the award accordingly.