Judgment:
(Prayer: This MFA is filed U/S 173(1) of MV Act, against the Judgment and Award dated: 14/08/2009 passed in MVC No.3903/2007 on the file of the XIII Additional Small Cause Judge, Member, Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-15), partly allowing the claim petition for compensation and seeking enhancement of compensation.)
(Prayer: This MFA is filed U/S 173(1) of MV Act, against the Judgment and Award dated: 14/08/2009 passed in MVC No.3903/2007 on the file of the XIII Additional Small Cause Judge, Member, Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-15), awarding a compensation of Rs. 2,21,000/- with interest at 6% p.a. from the date of petition till realization
This Misc. Cvl. is filed under Section 151 of CPC, praying to permit the respondents to withdraw the amount deposited by the appellant, in the interest of justice and equity.)
1. These two appeals respectively by the injured claimant and the Insurer are directed against the same impugned judgment and award dated 14th August 2009, passed in MVC No.3903/2007, by the XIII Additional Small Cause Judge, Member, Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-15) (for short, 'Tribunal').
2. While the claimant has filed the appeal seeking enhancement of compensation on the ground that, the compensation of Rs. 2,21,000/- awarded in his favour as against his claim for Rs. 10,00,000/-, is inadequate; the Insurer has filed the appeal on the ground that, the Tribunal is not justified in directing the Insurer to indemnify the award amount and the same is liable to be set aside.
3. The facts in brief are that, the injured claimant had filed the claim uetition under Section 166 of the Motor Vehicles Act, contending that at about 8:00 P.M, on 13-11-2006, when the injured claimant was travelling in the Tempo bearing Registration No.KA- 05/7513 as a Cleaner, the driver of the said Tempo drove the same at a high speed, in a rash and negligent manner, as a result of which, the Tempo turtled and the driver of the Tempo dashed his vehicle against an electric pole, as a result of which, the injured claimant sustained grievous injuries. Immediately, he was shifted to Rajarajeshwari Medical College Hospital for first aid and for better treatment, he was shifted to NIMHANS Hospital, where he was inpatient from 13-11- 2006 to 18-11-2006 and again he was shifted to KIMS Hospital, where he was hospitalized from 18-11-2006 to 26-12-2006 and spent huge sums towards medical and other expenses including conveyance, nourishing food and attendant charges.
4. It is the case of the injured claimant that, he was hale and health}' prior to the date of accident and was working as Cleaner, earning a sum of Rs. 150/- per day. On account of the grievous injuries sustained, he took treatment by spending huge sums towards conveyance, nourishing food and attendant charges, apart from medical and incidental expenses. Therefore, he has to be awarded reasonable compensation for the said injuries sustained in the road traffic accident.
5. The claim petition filed by the injured claimant had come up for consideration before the Tribunal on 14th August, 2009. The Tribunal, after considering the relevant material available on file, after appreciation of the oral and documentary evidence, allowed the claim petition, awarding a sum of Rs. 2,21,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal as inadequate, the injured claimant is in appeal for enhancement of compensation and being aggrieved by the liability fastened on the Insurer, the Insurer is in appeal before this Court, seeking to set aside the said direction.
6. I have heard the learned counsel appearing for injured claimant the learned counsel for Insurer, for considerable length of time.
7. Learned counsel appearing for injured claimant, Shri.M.R. Kumara Swamy at the outset submitted that, the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of income during laid up period, and no compensation is awarded towards disability on account of the grievous injuries sustained in the road traffic accident. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified by enhancing the reasonable compensation. To substantiate the said submission,, he is quick to point out and submit that, on account of the grievous injuries sustained in the road traffic accident, the injured claimant was hospitalized for a period of 45 days on different occasions in different Hospitals. In support of his case, he has examined the Doctor, PW2, who has assessed the disability at 33% towards whole body. But, without any justification, the same has not been accepted by Tribunal, on the ground that, the said witness is not the competent person to assess the disability and if there was head injury, the injured claimant ought to have examined the neurosurgeon. Therefore, he submitted that, reasonable enhancement may be made after assessing the whole body disability.
Regarding the submission of the learned counsel appearing for Insurer that, the Insurer is not liable to indemnify the award, he submitted that, the fact that the vehicle in question was insured with the insurer and the same was very much in force is not disputed and the police after due investigation, have filed the FIR against the driver of the said vehicle. Further, he submitted that, non examination of the driver and owner of the offending vehicle does not take away the legitimate entitlement of compensation by the injured claimant on account of the grievous injuries sustained in the road traffic accident. Therefore, he submitted that, the Tribunal is justified in accepting the oral evidence of PW1 coupled with documentary exhibits at Exs.Pl to P6 to come to the conclusion that, the Insurer is liable to indemnify the award. Hence, interference in so far as liability is concerned is uncalled for.
8. Per contra, Shri.B.C. Seetharama Rao, learned counsel appearing for Insurer vehemently submitted that, the reasoning given by the Tribunal at paragraph 15 of its judgment for fastening the liability on the Insurer jointly and severally on the owner and Insurer of the offending vehicle cannot be sustained and is liable to be set aside at the threshold. To substantiate the same, he is quick to point out and submit that, the evidence of PW1 reveals that the said witness, in his cross examination, has categorically admitted that,, as on the date of accident, himself, the driver and the cleaner were in Tempo and that, he did not know the name of the driver and he is the native of a village near Chennapatna. He further deposed that, he had boarded the Tempo at Brahanipura to come to Bangalore and that there is no document to show that he was working as cleaner and that he has stated before the police authority that he is an agriculturist. This categorical admission by PW1 itself is sufficient to fasten liability on the owner of the offending vehicle, for gross violation of the terms and conditions of the policy issued in favour of owner. Therefore, he submitted that the direction issued by Tribunal to the Insurer to indemnify the award is liable to be set aside and the same be fastened on the owner of the offending vehicle.
9. After hearing the learned counsel for the parties and after re-appreciation of the oral and documentary evidence available on file, the points that arise for my consideration in these two appeals are:
I] Whether the Tribunal is justified in directing the Insurer to indemnify the award?
II] Whether the quantum of compensation awarded by Tribunal is just and reasonable?
III] Whether the owner is liable to indemnify the award?
10. Re-Point i] : After going through the entire material available 011 file, threadbare, it can be seen that, occurrence of accident and the resultant injuries sustained by the injured claimant are not in dispute. It is also not in dispute that, the injured claimant was hale and healthy prior to the accident, aged about 23 years. It is stated that he was working as agriculturist. Further, issuance of insurance policy in favour of the owner of the offending vehicle is also not in dispute. After re-appreciation of the oral and documentary evidence available on file, it can be seen, as rightly pointed out by the learned counsel appealing for Insurer that, PW1, injured claimant, has in his cross examination, stated in unequivocal terms that, himself, the driver and cleaner were in the Tempo and that he boarded the Tempo at Bramhanipura to Come to Bangalore and also admitted that he has stated his profession as an agriculturist while giving the statement before the police, at the earliest point of time. When this categorical admission is very much available in the records, the Tribunal ought not to have given a finding, holding that, the Insurer is liable to indemnify the award. The said reasoning, finding and the direction issued by the Tribunal to the Insurer to indemnify the award is liable to be set aside as it proves beyond all reasonable doubts that the injured claimant/PW1 was travelling in the vehicle in question as an unauthorized passenger and not as a cleaner. Therefore, I answer point No.I in the 'Negative' and set aside the direction issued by the Tribunal to the Insurer to indemnify the award.
11. Re-Point III : So far as quantum of compensation awarded by Tribunal is concerned,. I answer the point No.II also iri the 'Negative', holding that the compensation awarded by Tribunal is or the lower side and liable to be enhanced, considering the nature of injuries sustained, age, avocation, nature and duration of treatment, disability assessed by Doctor, etc. After critical evaluation of the oral and documentary evidence available on file, it can be seen that, occurrence of accident and the resultant injuries sustained by the injured claimant are not in dispute. It is also not in dispute that the injured claimant, as on the date of accident, was aged about 23 years and working as coolie cum agriculturist. It is further not disputed that he was travelling in the Tempo in question belonging to the owner. The accident is of the year 2006. Therefore, having regard to the age avocation and the year of accident, the income assessed by the Tribunal at Rs. 3,000/- per month is just and proper and I accept the same, to meet the ends of justice. Further, it emerges from the records that, on account of the read traffic accident, the injured claimant has sustained grievous injuries, viz. left l'ranso parietal region, lacerated wound of 4 cm to 1 cm over left parietal region, severe head injury, left parietal compound depressed fracture left front to temporal parietal acute sub dural haemorrage and other injuries and took treatment for a period of more than 45 days in various Hospitals. The Doctor has assessed 75% moderate memory impairment, 50% moderate hemiperisis and 33% towards whole body disability. Further, it can be seen that, the injured claimant might have taken bed rest and follow up treatment for a period of not less than six months. During the treatment and follow-up treatment, he might have undergone lot of unsaid pain and agony and must have also spent reasonable amount towards conveyance, nourishing food and attendant charges. Further, the injured claimant being only 23 years of age, has to bear the whole body disability for the remaining part of his life and he cannot do his usual work as he was doing before. Therefore, having regard to the nature of injuries sustained, age, and the nature and duration of treatment, functional and whole body disability assessed etc., I award a sum of Rs. 50,000/- towards pain and sufferings as against Rs. 35,000/-, Rs. 40,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 10,000/-; Rs. 18,000/- towards loss of income during treatment period at the rate of Rs. 3,000/- per month for a period of six months as against Rs. 6,000/- awarded by Tribunal.
12. However, the Tribunal, after critical evaluation of the oral and documentary evidence available on file and considering the age, avocation, year of accident, nature and duration of treatment, etc, is justified in awarding a sum of Rs. 1,50,000/- towards medical expenses as per the medical bills and prescriptions and Rs. 20,000/- towards conveyance, nourishing food and attendant charges, considering the number of days of in-patient etc. Therefore, interference in the same is not called for.
13. Thus, the total compensation would come to Rs. 2,78,000/- as against Rs. 2,21,000/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs. 57,000/- with 6% interest per annum, from the date of petition till the date of realization. The break up is as follows:
| Towards Pain and sufferings | Rs. 50,000/- |
| Towards Loss of amenities and enjoyment in life on account of disability | Rs. 40,000/- |
| Towards Medical Expenses | Rs. 1,50,000/- |
| Towards conveyance, nourishing food and attendant charges | Rs. 20,000/- |
| Towards Loss of earning during treatment period | Rs. 18,000/- |
| Total | Rs. 2,78,000/- |
15. In the light of the facts and circumstances of the case, as stated above, the appeal filed by injured claimant is allowed in part and the appeal filed by Insurer is allowed.
The impugned judgment and award dated 14th August 2009, passed in MVC No.3903/2007, by the XIII Additional Small Cause Judge, Member, Motor Accident
Claims Tribunal, Court of Small Causes, Bangalore (SCCH-15) is hereby modified;
The Insurer is absolved of the liability fastened it by the Tribunal to indemnify the award;
The owner of the offending vehicle is liable to indemnify the award and is accordingly directed to indemnify the entire award amount including the enhanced compensation with interest at 6% per annum, from the date of petition till the date of realization.
The compensation awarded by Tribunal at Rs. 2,21,000/- is enhanced to Rs. 2,78,200/-, with interest at 6% per annum, from the date of petition till the date of realization.
The injured claimant is held entitled to a sum of Rs. 57,000/- with 6% interest per annum from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.
On such deposit, the entire sum shall be released in favour of the injured claimant, upon deposit by the owner;
The statutory amount deposited by the Insurer shall be refunded to it through its authorized representative/Officer or counsel appearing for Insurer, forthwith.
In view of disposal of main matter on merits, Misc.Cvl.7719/2011 for withdrawal of deposited amount does not survive for consideration and is accordingly disposed of as having become infructuous.
Office is directed to draw the award, accordingly.