IBY SRI P SHASHIDHARA, SRI B. V. PRAKASHA ANGADI. & SRI SRLKANTH, .ADVS,,) v. SRI KALLESHAPPA. & Ors.

113Y SRI. F. RAJAGOPALA. ADAFOIP IL], IL I SERVEDI 2 This MFA TS FILED U/S 173 (1) OF MOTOR VEHICLES ACt AGAINST ThE JUDGMENT AND AWARD DAThD 04.07.20% PASSED IN MVC NO. 638/2005 ON ThE FILE OF II ADDiTIONAL CWIL JUDGE (SRDN), ADDITIONAL MACT, DAVANAGERE. PAR’TLY ALLOWING ThE CLAIM PE’flTION FOR COMPENSATiON AND SEEKING ENHANCEMENT OF COMPENSATION. ThIS APPEAL COMING ON FOR ORDERS ThIS DAY. H.S.KEMPANNA, J., DEUVERED ThE FOLLOWING: JUDGMENT This is a claimant’s appeal seeking for enhancement of the compensation in respect of the injuries, which he has sustained In a motor accident.

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.

The brief facts are: The appellant-claimant along with claimants preferred claim petition before the tribunal compensation in respect of the injuries sustained In a motor It Is the case of the appellant/claimant that he was seeking for accident. aged 50 years. an agriculturist curn milk vendor by 3 occupation, earning more than Rs. 3,000/- p.m. On the date of the accident the claimant along with other four claimants were travelling in the bus bearing No.KA- 17-8968. When the said bus was proceeding on the road situated In between Marikunte and Pallagatte at about 12.45 p.m. on account of rash and negligent driving of the bus by Its driver he lost control over the same, due to which the bus toppled down resulting In Injuries to him and other co-passengers. One among them also died. He sustained burn Injuries all over the body on account of splashing of the boiling radiator water. He took treatment in C G Hospital at Davanagere for a period of 23 days. On account of the injuries sustained he Is unable to carry on his avocation which has resulted In loss of Income to him. The second respondent and the first respondent are the owner and the Insurer of the bus and hence they are jointly and severally liable to pay compensation to him. The claim petition as against the driver of the bus came to be dismissed. ‘—V 4

After service of notice the owner and Insurer It was appeared and contested the claim of the petitioner. contended by the owner that the accident did not take place on account of rash and negligent driving of the bus by Its driver. On the other hand It was an Inevitable accident which took place when the driver tried to avoid dashing against a stray cattle which came on to road suddenly. He further contended as the accident has not taken place due to the fault of the driver of the bus he Is not liable to pay any compensation. He also contended If for any reason he Is held liable as the bus in question has been Insured with the third respondent. the liability to pay any compensation be fastened on them. The third respondent Insurer towing the line of the second respondent contended as the accident has not taken place due to the fault of the driver of the bus they are not liable to pay any compensation. They also contended that their liabifity Is governed by the terms and conditions of the policy issued and as the accident has not taken place due to 5 the negligence of the driver of the bus, they are not liable to pay any compensation, accordingly sought for dismissal of the petition.

The tribunal on the basis of the above pleadings framed the following Issues:

Whether the petitioners proves, that he/she have sustained injuries in the alleged road traffic accident on 22.04.2004 at around 12.45 p.m. due to the rash and negligent driving of the respondent No.1 bearing Reg. No.KA 17 8968?

2. Whether the respondent No.3 proves that, respondent No.1 was not possessing valid and effective driving license to drive the said vehicle at the time of accident?

3. Whether petitioner Is entitled for compensation? If so. what amount and from whom?

4. What order or award? 6

The tribunal recorded common evidence after passing an order of clubbing all the petitions filed by the claimant and his co-claimants as they arised out of the same accident. They produced in Claimant came to be examined as PW.4. all 23 documents which came to be marked as EX.P1 to P23 among which EX.P.18 to EX.P.22 exclusively pertains to the petitioner. On behalf of the respondents they have not lead any oral evidence, on the other hand they have got marked 4 documents as EX.Dl to D4.

The tribunal on the basis of both oral and documentary evidence placed on record held that the accident in question has taken place on account of the actionable negligence of the driver of the bus. Further looking to the evidence of the petitioner and the medical officer who had examined him and the documents placed on record, awarded a sum of Rs.80.899.67 under various heads to the petitioner from the date of petition till with interest at 6% p.a. realisation. it further saddled the liability of payment of 7 compensation on respondent No.3 insurer with a further direction to recover the same from the second respondent owner.

The appellant/claimant being aggrieved by the quantum of compensation awarded to him is in appeal before this Court.

The learned counsel appearing for the appellant claimant contended that the tribunal has erred in not awarding commensurate compensation to the appellant claimant under all heads except the compensation awarded for medical expenses, despite the claimant having placed clinching evidence supported with documents. Therefore a case for enhancement is made out.

Per contra, the learned counsel appearing for the contesting insurer supported the Impugned judgment and award passed by the tribunal. 8

Taking the rival contention into consideration, the evidence and documents on record the point that arises for our consideration Is: “Whether the appellant/claimant has made out a case for enhancement?”

The accident having taken place on account of the actionable negligence of appellant claimant having sustained Injuries Is not disputed the driver of the bus and the before us.

It Is the case of the claimant that In the Impugned accident he has sustaIned severe burn Injuries on account of the boiling radiator water having splashed all over his body. He took treatment for the said Injuries for a period of 23 days. He has produced the discharge card, which Is at EX.P.18. His evidence Is fortified from the evIdence of PW.8, medical officer who has treated him. The evidence of PW.8 discloses that the claimant had suffered burn Injuries on account of the boiling water having been splashed all over his 9 body. He has been treated in the hospital from 22.4.2004 to

15.5.2004. EX.P. 18 the discharge card discloses the claimant having suffered burn injuries all over the body. Having regard to the nature and degree of the injuries the claimant has sustained we are of the view that the claimant should be awarded an additional sum of Rs. 15,000/- towards pain and suffering in addition to Rs. 15,000/ - awarded by the tribunal. Further the tribunal has awarded only a sum of Rs.5.300/- towards conveyance, nourishment and attendant charges. As already pointed out the claimant has taken treatment for the injuries which he has sustained in the accident for a period of 23 days. Having regard to the nature of burn injuries which he has sustained we are inclined to award an additional sum of Rs.5,000/- towards conveyance, nourishment attendant charges. Further the tribunal has awarded only a sum of Rs.5,000/- towards loss of amenities. Taking into consideration the nature of the Injuries the claimant has sustained, we are inclined to award an additional sum of Rs.5,000/- towards loss of amenities. The next aspect that 10 dwells for our consideration Is, the determination of his Income, the percentage of disabifity that he has suffered and the loss of future Income. The claimant has claimed that he Is aged 50 years. a milk vendor and agriculturist by occupation earning Rs.3,000/- p.m. The tribunal despite his evidence has taken his income at Rs.70/- per day and Rs.2. 100/- p.m. The accident has taken place In the year

2004. Even taking him to be an agricultural coolie, we are of the view that his income his income would not be less than Rs.100/- per day and Rs.3.000/- p.m. Having determined his income at Rs.3,000/- p.m. having regard to the nature of Injuries suffered he could not have attended to his work for a period of 3 months for which period he should be compensated towards loss of income. Therefore we award a sum of Rs.9.000/- towards loss of income 1kw laid up period of three months as against Rs.2, 100/- as awarded by the tribunal. The next aspect to be considered is the permanent disability he has suffered on account of the injuries sustained In the accident. The medical Officer PW.8 has stated that he 11 has suffered disability to an extent of 20%. There is nothing on record to discard his testimony. Accordingly we take 20% as the permanent disability suffered by the claimant. We have determined his income at Rs.3,000/- p.m.