Judgment:
A.N. Venugopala Gowda, J.
1. Petitioners in MVC No. 5526 on the file of Motor Accident Claims Tribunal (SCCH-10), Bangalore City, is the appellant in MFA 8165/2006. Respondent-2 in the said claim petition is the appellant in MFA 7330/2006. In both these appeals, the judgment and award dated 15.2.2006 passed by Motor Accident Claims Tribunal, awarding compensation of Rs. 1,99,022/- with interest at 6% p.a., has been questioned. Grievance of the appellant In MFA 8165/2006 is that, the amount awarded is not just compensation and that, he is entitled to be awarded a compensation of Rs. 7,00,000/- as claimed in the claim petition. On the other hand, the grievance of the Insurance Company in MFA 7330/2006 is against the very awarding of compensation of Rs. 1,99,022/- in favour of the petitioner. Since the appeals arise from one and the same judgment and award, they are taken up together for consideration.
2. For the sake of convenience, the parties would herein after be referred to, with reference to the rank in the claim petition before Motor Accident Claims Tribunal.
3. Brief facts which led to the claim are: On 8.4.2004 at about 4.40 p.m. when the petitioner was moving on a motor cycle bearing Registration No. KA-05-EF 7880 on Bagepalli - T.B. Cross Main road, near Byraweshwara Temple, the driver of goods tempo bearing Registration No. KA-07 1912, who was driving the said vehicle in high speed, in rash and negligent manner, without giving any signal, abruptly stopped the vehicle on the said road. In view of the same, the petitioner went and dashed the motor cycle against the goods tempo and sustained injuries over his body. Petitioner who was aged about 38 years as on the date of accident, is a Police Constable, working in Gudibanda Police Station. Bagepalli police registered a case relating to the said accident in Crime No. 49/2004 under Sections 279 and 338 IPC. Immediately after the accident, due to the sustaining of injuries, the petitioner was taken to hospital for treatment. He took treatment at Minto Hospital, Lions Nethralaya and Narayana Nethralaya. He has incurred expenses for obtaining of treatment and other related expenditure. Having sustained partial permanent disability on account of loss of his left eye and vision power of right eye having also diminished, he filed the claim petition under Section 166 of Indian Motor Vehicles Act, 1988, against the respondents claiming compensation of Rs. 7,00,000/- with interest. The 1st and 3rd respondents, despite service of notice, did not appear and were placed ex-parte. 2nd respondent contested the claim petition by fling the written statement denying all the averments made in the claim petition. It was contended that, the accident was not on account of any actionable negligence on the part of the driver of the vehicle KA-07-1912 and the alleged accident was due to the negligence of the petitioner or due to contributory negligence on his part. Hence, it is not liable to pay any compensation.
4. Keeping in view the pleading of the parties, the tribunal framed following issues;
1) Whether the petitioner proves that on 8.4.2004 at about 4.45 p.m. the driver of the goods tempo bearing No. KA 07 1912 has driven it on Bagepalli-T.B. Cross Main Road, near (sic) vehicle without giving any signal, so the petitioner dashed his motor cycle bearing No. KA 05 EF 7880 against the said goods tempo and sustained injuries over his body as contended in the petition?
2) Whether the petitioner proves that he is entitled for compensation? If so, what amount and from whom he is entitled to?
3) What order?
5. Petitioner deposed as PW1 and examined Dr. Suresh Babu of Minto Hospital as PW2. Exs.P1 to P18 were marked. Respondents did not lead any evidence, either oral or documentary. After appreciation of the evidence on record with reference to the rival contentions, Motor Accident Claims Tribunal held that, the accident has taken place on 8.4.2004, on account of the negligence on part of the driver of vehicle bearing No. KA 07 1912 and as a result, the petitioner sustained injuries over his body and there is loss caused to him. It quantified the loss caused to the appellant, both pecuniary and non-pecuniary, at Rs. 1,99,022/- and passed the award to pay the same along with interest at 6% p.a. from the date of petition till deposit. Respondent-2 was directed to deposit the amount, making respondents 1 and 2 jointly and severally liable to pay the compensation amount.
6. Learned Counsel for the petitioner while taking me through the record of Motor Accident Claims Tribunal contended that, the Court below has not correctly appreciated the evidence on record with regard to quantification of loss and in the matter of awarding of compensation. It was contended that, the tribunal has failed to apply the settled legal principles with regard to the assessment of loss involving personal injury cases and compensation awarded is on a very lower side. It was contended that, the accident has led to total loss of vision of left eye, which has resulted in the appellant losing promotions and suffering loss. It was pointed out that, PW2 has assessed the permanent disability of vision power of both the eyes at 30% and hence, just compensation has not been awarded.
7. Per contra, learned Counsel for the Insurance Company would contend that, the finding of the tribunal without considering negligence or contributory negligence on the part of the injured claimant who was admittedly riding a two wheeler, did not keep safe distance between his vehicle and the vehicle which was ahead of him, is erroneous. It was submitted that, the injured claimant being a Police Constable did not follow traffic rules and regulations while driving two wheeler and because of the lapse on his part, he went and dashed against the vehicle which was ahead of him and the said negligence amounts to contributory negligence, if not gross negligence on his part which was unnoticed by the tribunal, resulting in an award being passed illegally against the Insurance Company. Alternatively, learned Counsel contended that, the tribunal has erred in allowing Rs. 20,022/- under the head Moss of income during period of treatment in the absence of specific evidence to that effect and in awarding Rs. 75,000/- under the head, of disability, when the petitioner continues in the same job with the same pay.
8. Keeping in view the rival contentions and the record, the points that arise for consideration are;
1) Whether the accident in question has taken place on account of actionable wrong on the part of the driver of the vehicle KA 07 1912?
2) Whether there was any contributory negligence on the part of the injured/petitioner?
3) What is the just compensation the petitioner is entitled to, if any?
Re. Points 1 and 2:
9. Indisputably, petitioner was aged 38 years on the date of the accident and was working as a Police Constable in Gudibanda Police Station. Accident, has taken place on 8.4.2004 while petitioner was riding motorcycle No. KA 05 EF 7880. Involvement of vehicle No. KA 07 1912 in the accident is not in dispute. In respect of the said accident, Bagepalli police registered a complaint in Crime No. 49/2004 against the driver of the tempo bearing No. KA 07 1912 under Sections 279 and 338 IPC. PW1 has deposed with regard to the accident. Ex.P1 is the FIR. The Police after investigation filed charge sheet against the driver of said tempo. The charge sheet is at Ex.P5. The driver of the offending vehicle having appeared before the Jurisdictional Court, has admitted his guilt and was sentenced to pay a fine of Rs. 1250/- in CC No. 166/2004, which is evident from the order at Ex.P6. Evidence of PW.1 is supported by the said documentary evidence. As against the same, respondents have not led any evidence. They have not examined the driver of the said tempo, who would have been the best witness to state as to whether there was any negligence or contributory negligence on the part of the petitioner with regard to the said accident. Though the Insurance Company took the plea that there was no negligence on the part of driver of tempo or there is contributory negligence, on the part of petitioner, it has failed to place any' evidence on record in support of its plea. The investigation of the case by the police led to the filing of the charge sheet against the driver of the said tempo. The driver has appeared before the jurisdictional Magistrate and has pleaded guilty, upon which, he was sentenced to pay fine in terms of the order at Ex.P6. The fine amount has been paid. The said evidence clearly establishes that the accident has taken place on account of negligence on the part of the driver of the tempo. In view of the said material circumstances and in the absence of any evidence any kind of negligence or contributory negligence on the part of the petitioner, the finding of the tribunal on issue No. 1 in the affirmative, holding that, the accident has taken place on 8.4.2004 on account of the negligence on the part of the driver of goods tempo No. KA 07 1912 in he driving the vehicle in a high speed, in rash and negligent manner and abruptly stopping the vehicle without giving any signal, resulting in the petitioner who was behind the said vehicle, dashing against the said vehicle, is well founded. The material on record fully justifies the finding. There is no perversity and illegality, to interfere in appeal.
Re. Point No. 3:
10. PW.1 has deposed to the effect that, due to the impact, he fell down and sustained grievous injuries viz.,
i) Full thinckness scleral tear extending from super nasal quadran to medial couther;
2) Globe is collapsed - contents of the globe appears to have been expulsed out;
3) Sub-conjundiral hemorrhage present;
4) Extra ocular movements restricted;
5) View of left eye - PL negative;
6) Full thickening lower lid (left).
Immediately he was shifted to Bagepalli Government hospital, first aid treatment was given and was referred to Minto Ophthalmic hospital, Bangalore, where he took treatment as inpatient from 8.4.2004 to 18.4.2004. Later he took advice at Narayana Nethralaya and Mallya hospitals for better management. Though he availed best medical treatment, he lost the vision power in his left eye because of micro optholmos. The doctors advised for artificial eye cap and as per the advice of the doctor, he is wearing artificial eye cap on his left eye, which according to him has to be changed every year and he is still under regular treatment. He has also stated that, he took follow up treatment at Dr. M.C. Modi Charitable Eye Hospital and is taking regular follow up and physiotherapy treatment at Minto Eye Hospital, Bangalore, once in a month. Ex.P4 is the wound certificate. Ex.P7 is the OPD card issued by Bangalore West Lions hospital. Ex.P8 is the discharge -identity card of Minto hospital. Ex.P9 is the letter of Narayana Nethralaya addressed to the doctor at Minto hospital. The medical report of Narayana Nethralaya is at Ex.P11. Out patient card of Modi Charitable Eye hospital is Ex.P12. Ex.P13 series die the medical bills (20 Nos.). Ex.P14 series are the medical prescriptions (10 Nos.). While In the witness box, he has removed his spectacles and showed to the tribunal, the artificial eye ball fixed in left eye and has stated that he cannot visualize anything with his left eye and it is 100% damaged. He has admitted that he did not take treatment in Narayana Nethralaya as an inpatient. In the Dr. Modi hospital, he took treatment as an outpatient.
13. PW.2 Dr. Suresh Babu, working as Ophthalmologist in Minto hospital at Bangalore has stated that, he is working in the said hospital as an Ophthalmologist and Assistant Professor of Ophthalmology. He examined the petitioner in the inpatient Department of Regional Institute of Ophthalmology, Minto Ophthalmic Hospital, Bangalore on 8.4.2004 around 8 pm with I.P. No. 270192. Patient had been referred from Government Hospital at Bagepalli. At the time of examination, the patient complained lack of vision in the left eye and was admitted for treatment on 8.4 2004. After treatment, patient was discharged on 15.4.2004 with a diagnosis of Traumatic Globe rupture of left eye. Patient was later examined by him in the OPD on 17.11.2005 and on examination, he found:
1) His Vision in the Right Eye is 6/18 P.H. 6/6 N6 and the Left Eye is perception of Light - Absent.
2) His Vision after correction with glasses in Right Eye is 6/6 N6.
3) The Left Eye showed full thickness Scleral tear with Uveal tissue prolapse, flat anterior chamber, Hyphaema, Sub Conjunctival hemorrhage.
4) The left Eye Lower Lid showed a full thickness tear (3 x 2 x 0.5cms).
5) The Extra ocular movements in Left Eye were restricted.
6) There were abrasions in the Left Infraorbital area.
The Treatment given was:
i) The patient underwent primary repair of the Left Eye on 09.4.2004.
ii) B-Scan of Left Eye showed distorted coats, decreased Axial length and multiple vitreous membranes.
iii) Patient was advised Evisceration as the Perception of fight was Absent.
iv) Patient underwent second opinion from Nanyana Netralaya on 12.4.2004 and left eye enucleation was advised.
v) Patient later underwent left eye unucleation with a Prosthetic eye fitting in a private Hospital.
In his opinion.
a. The injuries are grievous in nature.
b. The petitioner's vision in the left eye cannot be improved further by any means.
c. He cannot perform tasks properly that require Binocular Single Vision and depth perception like driving a vehicle.
d. He has a 100% visual handicap of left eye and 30% visual handicap of both eyes.
e. The loss of vision in the left eye can be attributed to trauma and is permanent and irreversible.
He has stated that, as on the day the patient was discharged from their hospital, his left eye was completely visionless and even after treatment, there is no chances of he getting back the vision. However, he has admitted that, patients right eye is not affected in any manner on account of injury to the left eye.
12. PW.1 has stated that, ha incurred expenses towards travelling to various hospitals. According to him, he visited the hospitals 25 to 30 times by spending Rs. 500/- per visit towards conveyance, consultation charges and medical expenses. According to him, he spent to the tune of Rs. 75,000/- towards conveyance, treatment and medical expenses and that, he has to spend substantial amount towards future treatment and medical expenses. He has stated that, he had engaged an attendant by paying Rs. 75/- per day during the stay in the hospital and after discharge, on consolidated charge of Rs. 1000/- p.m. for a period of 3 months.
13. PW.1 has deposed that, in spite of medical treatment, the accidental injuries have resulted in permanent disability and he has lost vision power in his left eye and as a result, he cannot stand for long time. He also gets giddiness while walking in sun shine and he cannot walk for long distance, cannot run, he is unable to attend police parades and is unable to ride motor cycle and has difficulty !n attending to his day-to-day activities. He has stated that, he was drawing salary of Rs. 6,674/- p.m. and after the accident, it is not possible to perform his duties and he has become dependent person and is at the mercy of higher officers because of his physical disability and his officers have only assigned him light work and due to the loss of vision power in his left eye and physical impairment, he has lost future increments and promotions.
14. In the case of R.D. Hattangadi v. Pest Control (India) Pvt., Ltd. : 1995 ACJ 366 (SC), Hon'ble Supreme Court has held that, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately, as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate the two concepts, pecuniary damages may include the expenses incurred by the claimants on: (i) medical attendance; (ii) the loss of earnings/profit up to the date or trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. In determining the quantum of damages, the tribunal/Court is bound to ascertain al! considerations which will make good to the sufferer all the injuries as for as money can do, the loss which he has suffered as the natural result of the wrong done to him.
15. Learned Counsel for the petitioner placed reliance on the decision in the case of Arvind Kumar Sharma v. Roshanlal and Ors. 2006 (1) TAC 375 (Chattis) and contended that, the claimant being a police constable, has suffered deprivation of one eye, which has affected both in his official and social circles. It was pointed out that iii the said decision, in similar circumstances, loss of left eye, was treated as permanent disability at 40% and just compensation was awarded under the heads pain and suffering, mental and physical shock, loss of amenities of vision of one eye, loss of confidence, discomfort and hardship for remaining period of life. Learned Counsel contended that, the factual situation in the instant case being identical, the compensation in terms of the award in the said decision may be awarded.
16. On the other hand, learned Counsel for the respondent/Insurance Company contended that, the petitioner continues in the same job and with the same pay and there is no loss of income whatsoever nature and hence the petitioner is not entitled to any compensation, much less, the one awarded under the head loss of Income during the period of treatment and disability. It was submitted that the amount awarded itself is excessive, it should be scaled down and at any rate, no case for increase is made out.
x7. Appellant has completely lost his left eye on account of accidental injuries. He was aged about 38 years at the time he suffered the said loss. He is a Police Constable. The loss of left eye has not affected the salary of the appellant. There is no material on record from which it could be inferred that the appellant's service conditions are affected by the loss of left eye. He has not placed any material on record to show that, any junior of him in service was promoted ignoring him because of loss of left eye vision and thereby, there is loss of pay and emoluments. The said disability has not come in the way of the appellant performing his duties and drawing his pay and emoluments from his employer. In the circumstances, he is not entitled to be awarded any sum under the head loss of future income though there is a partial permanent disability.
18. Considering the nature of injury, treatment and the period of recovery, the tribunal has awarded the just compensation of Rs. 90,000/- and no enhancement is called for, in that regard.
19. Under the head medical expenses, Rs. 4,000/-has been awarded by the tribunal though as per the bills at Ex.P13, the amount spent is only Rs. 2,901/-. Hence, no enhancement of amount under the said head is called for.
20. The tribunal has awarded Rs. 10,000/- under the head conveyance and nourishment. Appellant was working as a Police Constable in Gudibanda of Kolar District. On account of accidental injuries, he had to visit Bangalore quite often to obtain treatment. Considering the nature of Injuries, he had to be accompanied by an attendant. He must have paid for the attendant during the period of treatment. Hence, the amount awarded is not just. Considering the fact that the attendant accompanied and attended the injured during the period of treatment, a further sum of Rs. 10,000/- has to be awarded under the head conveyance, nourishment and attendant charges.
21. Tribunal has awarded Rs. 20,022/- under the head loss of income during laid up period. The monthly salary of the appellant as on the date of accident was Rs. 6,674/-. Though appellant has stated that he availed long leave, he has failed to produce any evidence regarding leave period. Hence, the tribunal has awarded the salary of 3 months as the loss of income during the period of treatment. In the absence of evidence i.e., a certificate issued by the employer with regard to the availment of leave by the appellant for recovery from accidental injuries, the amount awarded is just and no enhancement is called for.
22. The loss of left eye will come in the way of the appellant having normal pleasures of life. The injury would cause much discomfort and hardship for the remaining period of life. He will not be able to drive any vehicle during the remaining period of his life. Hence, towards loss of amenities, ha ought to have been awarded Rs. 90,000/- instead of Rs. 75,000/-. Hence, the appellant is entitled to be awarded a further sum of Rs. 15,000/- under the head loss of amenities.
In the result, I pass the following:
ORDER
(i) MFA 7330/2006 is hereby dismissed.
(ii) In modification of the judgment and award passed by the tribunal, MFA 8165/2006 is allowed in part. Enhanced compensation of Rs. 25,000/- is awarded, which shall carry interest at 6% p.a. from the date of filing of claim petition till the date of deposit.
(iii) 2nd respondent/Insurance Company shall deposit the increased compensation with interest in to the tribunal within a period of 3 months from today.
No costs.
The Registry is directed to draw modified award.