Judgment:
1. This is a claimants appeal seeking for enhancement of compensation in respect of the injuries sustained in a motor accident.
2. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal.
3. The brief facts of the case are:-
The claimant instituted claim petition under Section 166 of the Motor Vehicles Act seeking for compensation in respect of the injuries sustained in a motor accident. U is her case as on 2.2.2005. the date of the accident. she was aged 22 years and she was prosecuting her studies in Engineering in 7"' semester. According to the petitioner, on 2.2.2005 at about 1.00 PM she was proceeding as a pillion rider in the motor cycle bearing No. KA04-R 3493 on Bangalore-Bellary Road. While their motor cycle was near the Railway Gate at Allalasandra a lorry bearing registration No. CAM 6996 driven by its driver in a rash and negligent manner came and dashed against the motor cycle in which she was proceeding. On account of the impact she sustained severe injuries on her person. She was shifted to M.S. Ramaiah Hospital where she took treatment for the injuries sustained in the impugned accident. She spent huge amount for treatment of the injuries. Despite the same, she is not completely cured of the injuries.
On account of the injuries sustained she is unable to prosecute her studies effectively and it has also affected her future loss of income and her marital prospects. As the lurry in question is owned by the second respondent and insuivd with the first respondent, they are jointly and severally liable to pay compensation.
4. Alter service of notice, both the respondents appeared 1 though their counsel. However it was only the first respondent who contested the petition by filing statement of objections. They contended that the accident in question has not taken place on account of the rash and negligent driving of the lorry By its driver. On the other hand it was on account of the negligence of the rider of the motor cycle. They admitted the lorry in question having been insured with them as on the date of the accident. However, they contended that their liability is subject to the terms and conditions ol the policy.
They further contended that, as the accident did not take place fault of the driver of the lorry, they are not liable to pay compensation. Thereby they sought for dismissal of the petition.
5. The Tribunal on the basis of the aforesaid pleadings framed the following issues:-
The claimant [1] support of her ease got examined herself as PWl and the medical officer who treated her as PW2. She produced in all 16 documents which came 10 be marked as Exs. Pt to PI6. On the other hand, respondents in support of their case did not lead any oral evidence. On the other hand they produced only one document which came to be marked as Ex.RI.
6. The Tribunal on the basis of the evidence and the documents placed on record held that the accident in question has taken place on account of the actionable negligence of the driver of the lorry. Further, on the basis of the materials placed before It comprising of medical and other documents it awaited in all a sum of Rs. 1,13.887/ with interest at 6% pa from the date of petition till the date of realisation under various heads It further saddled the liability of payment of compensation on the first respondent-insurer the appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.
7. The learned counsel appearing for the appellant-claimant contended that the Tribunal has erred in not awarding commensurate compensation to the claimant under the head pain and suffering, conveyance, nourishment, attendant charges, loss of future income and towards future medical treatment despite the claimant having produced clinching evidence supported with documents. Therefore, a case for enhancement is made out.
8. Per contra, the learned counsel appearing for the insurer supported the impugned judgment and award passed by the Tribunal.
9. Taking the rival submissions into consideration and the documents on record, the point that arises for considerate consideration is.
"Whether the claimant has made out a case Tor enhancement.
10. The accident having taken place on account of the actionable negligence of the driver of the lorry in question and the liability of the insurer is not in dispute. According to the claimant, she was aged 22 years: and was prosecuting her studies in Engineering in 7th semester as on the date of the accident. On account of the impact, she sustained fracture of her pelvic bone, iliac bone, degloving injury on the right foot and other abrasions on her body She took treatment for the injuries at M.S.Ramaiah Hospital for a period of 26 days. During the said period she underwent surgery in which the fractures she had sustained were set right and the degloving injury was also treated and was corrected by skin grafting. In support of her claim, petitioner has examined the medical officer who treated her at the said hospital. The evidence of PW2-medical officer reveals that the claimant has sustained the following mjuries:-
1. Pelvic fracture with fracture left iliac bone and S.I joint dislocation.
2. Superior and inferior pubic rami fractures on. right side of pelris,
3. Developing injury of right root.
4. Abrasions oner whole of right gluteal region and part of left gluteal area.
His evidence further reveals that I he fractures which she sustained were set right under surgery. It further discloses that the claimant has sustained shortening of her left limb by one inch and she has permanent disability to the extent of 40% of the pelvis. 4% for shortening. 12% for right foot and ankle and 10% for her keloids and scars, and in all total disability to the extent ol -about 53%. His evidence also further discloses that on account of pelvic injury which she has sustained, her marital life would also be affected.
11. The Tribunal despite the above material on record has awarded a sum of Rs. 30,000/- towards injury, pain and suffering, In our view, having regard to the nature of the fractures the claimant has sustained which are 4 in number which are adverted to above, she is entitled to a sum of Ks.50.000/-. in all. for injury, pain and suffering. Further., the Tribunal has awarded a sum of Rs. 15.000/- towards loss of amenities which in our view is just and proper and does not call for any enhancement. Further, the Tribunal has awarded Rs.5.000/- towards conveyance, nourishment and attendant charges. The evidence on record reveals that she has taken treatment for a period of 26 days as inpatient during which period she has also undergone surgery. Having regard to the same, we are inclined to award a sum of Rs. 15.000/- towards conveyance, nourishment and attendant charges as against Rs.5.000/- awarded by the Tribunal. Further, the tribunal has awarded u sum of Rs.30.000/- towards permanent disability. The claimant as already slated, as on the dale of accident was aged 22 years and was prosecuting her studies in Engineering in 7Ih semester. There is no evidence to show that she was employed. Therefore, we take the income of the claimant at Rs.3.000/- per month. The evidence oi FW-2 medical officer reveals that she has permanent disability of 53%. This evidence of PW'2 in respect of the permanent disability is on the higher side. Therefore, we take the disability at 30%, having regard to the nature of injuries the claimant has sustained. As we have determined the income at Rs.3.000/- per month, the loss of future income will come to Rs. 1,97.400/- having regard to her age and the multiplier applicable to her age as against Rs.30.000/- awarded by the Tribunal. Further, the evidence of PW2 - medical officer reveals that on account of the injuries sustained, her personal sex life will be affected. Appreciating the same, as the claimant is a young fady of 22 years, in the facts and circumstances we are inclined to award a sum of Rs. 50.000/- towards loss of marital prospects as against Rs. 15,000/- awarded by the Tribunal. The Tribunal has awarded only Rs.5.000/- towards future medical expenses. The evidence of PW2-medical officer reveals that she requires a sum of Rs.30.000/- towards future medical expenses. It was brought to our notice that' the medical expenses which has already been considered and awarded is inclusive of the medical treatment that she has taken for undergoing surgery in the hosoital. Having regard to the evidence on record and taking into consideration the nature of the fractures and injuries that she has sustained, she requires in all a sum of Rs 30 000/- as against Rs.5.000/-awarded by the Tribunal towards futon medical expenses. In so far as medical expenses which the claimant has incurred till the date of filing of the petition, it has come on record that a total sun of Rs. 97,571/- is spent and out of that as the petitioners father was working in Central Government, a sum of Rs. 83,684/- has been reimbursed and the balance of Rs. 13.887/- has been awarded towards medical expenses. This appears to be just and reasonable and no grievance was made in respect of the same. Accordingly, the said amount is aitirmed. Similarly, the amount of Rs. 15,000/ awarded towards loss of amenities is also affirmed. Thus, in our view the applicant is entitled to a total compensation of Rs.3.71.287/- as against Rs. 1,13,887/ awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization. Accordingly, we pass the following order: -
(a) Appeal is allowed in part.
(b) The appellant-claimant is awarded a total compensation of Rs.3.71.287f with interest at 6% p.cL. from the date of petition till realisation.
(c) the first respondent-insurer shall deposit the entire compensation awarded to the claimant within 6 weeks from the date of receipt of a copy of this order, before the Tribunal.
(d) Of the total compensation awarded to the claimant now before this Court. 75% of the same snail be deposited in the name of the appellant in any nationalized bank , / or a period of 5 years. renewable for a further period of 5 years. She is Entitled to withdraw the interest accrued on the said deposit per kxlic ally.
(e) The balance 25% with proportionate interest's ordered to be released in favour of the appellant-claimant.