THE NEW INDIA ASSURANCE CO. LTD. v. SWAMY

Learned Counsel for the appellant-insurer submits as per the sketch Ex. P 3 the accident was occurred in the middle of the road and the claimant had also contributed to the accident in crossing the road 3 negligently. He further submits that the Tribunal has committed an error in taking the disability at 35% while determining loss of future income. Therefore, he prays for allowing the appeal.

3. Learned Counsel for the claimant submits the insurer who contends the claimant had also contributed to the accident has not chosen to examine any witness on their behalf and therefore the Tribunal has rightly held that the accident is occurred due to sole negligence on the part of the rider of the offending motor cycle and hence he prays for dismissal of the appeal.

4. After the accident a criminal case was registered against the rider of offending motor cycle. The police after investigating the complaint have filed charge sheet against him. The claimant in support of his contention that the accident was occurred due to rash and 4 negligent riding of motor cycle by its rider has examined himself as PW 1 and produced FIR, mahazar and sketch at Ex. P 1 to P 3 respectively. The insurer who contends that the claimant had contributed to the accident has not examined the rider of the motor cycle in support of their contention. The Tribunal considering the oral and documentary evidence on records has rightly held that the accident was occurred due to rash and negligence riding of the motor cycle by its rider and I do not find any valid reason to interfere with the said finding and it is confirmed.

5. Now I have to see whether quantum of compensation awarded by the Tribunal is just and reasonable or does not call for reduction.

6. After hearing the learned Counsel for parties and perusing the judgment and award of the Tribunal, I am 5 of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the hither side and therefore, it is deserved to be reduced.

7. As per Ex.P. 4 - wound certificate, claimant had sustained fracture of Tibia of left leg and other 7 injuries. Injuries sustained and treatment taken by him are also evident from discharge card Ex.P.7, X-ray Ex. P 8 and P 14, case sheet Ex. P 11, OPD book Ex. P 12, disability certificate Ex. 13 and supported by oral evidence of the claimant and doctor examined as P.Ws. 1 and 2 respectively. P.W.2 – Dr. P. Puttaswamy, in his evidence has stated claimant has sustained 35% disability to whole body.

8. Considering one fracture and other 7 injuries 6 injuries sustained by the claimant, Rs.30,000/- is awarded towards pain and suffering as against Rs.20,000/- awarded by the Tribunal under this head.

9. The claimant has produced medical bills for Rs,1,600/-. He was treated as inpatient for 44 days days in BM Hospital and K.R. Hospital at Mysore. Considering the same Rs.20,000/- is awarded towards medical and incidental expenses such as conveyance, nourishment and attendant charges as against Rs.3,000/- awarded by the Tribunal.

10. The claimant claims to have been earning Rs.250/- per day by doing plumbing work but it is not established by producing any document. Considering his age as 25 years and year of accident as 2004, his income is assessed at Rs.3,500/- per month. Nature of injuries suggest, he must have been under rest and 7 treatment for a period of four months. Therefore, a sum of Rs.14,000/- is awarded towards loss of income during laid up period as against Rs.4,400/- awarded by the Tribunal under this head.

11. Considering nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, a sum of Rs.20,000/- is awarded towards loss of amenities.

12. Considering the nature of injuries sustained by the claimant the disability stated by the doctor at 35% to whole body appears to be an exaggeration. Therefore justice would be met if functional disability is taken at 15%. The multiplier applicable to his age group is `18'. His income is assessed at Rs.3,500/- per month. If so, loss of future income works out to Rs.1,13,400/- 8 (Rs.3,500/- x 15% x 12 x 18) and it is awarded as against Rs.2,14,200/- awarded by the Tribunal.

13. Thus the claimant is entitled for the following compensation: 1) Pain and suffering Rs. 30,000/- 2) Medical and Incidental expenses Rs. 20,000/- 3) 4) 5) Loss of income during laid up period Loss of amenities Loss of future income Rs. 14,000/- Rs. 210,000/- Rs.1,13,4000/- _______________ Total Rs.1,97,400/- Compensation awarded by the Tribunal Rs.2,41,600/- Additional compensation comes to Rs. 44,200/-

14. Accordingly the appeal is allowed in part and the judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for 9 a total compensation of Rs.1,97,400/- as against Rs.2,14,200/- awarded by the Tribunal and compensation awarded by the Tribunal is reduced by Rs.44,200/-.

15. The Insurance Company is directed to deposit the balance of compensation amount with interest within two months from the date of receipt of a copy of this judgment and the same shall be disbursed in terms of the award of the Tribunal.

16. The amount in deposit is ordered to be transferred to the Tribunal for disbursement. No order as to costs. vb/- SD/- JUDGE