Devendrappa S/o Bhojarajappa Gunjal v. M/s B V And Brothers

1. The claimant in M.V.C.No.571/2004 on the file of the II Addl. Senior Civil Judge and Addl. M.A.C.T., at, Hubballi, dissatisfied with the quantum of compensation, has filed this appeal.

2. The claimant contends that on 07.05.2004, when he was traveling in a car bearing registration CKW-9102, a truck bearing registration No.MH-04/BG-0246 was driven from the opposite direction in a rash and negligent manner which dashed against the car. As a result of which, the claimant suffered the following injuries:

"blunt injuries to chest, abdomen, swelling and deformity over left thigh, tenderness at right hip joint, superficial glass cut wound over posterior aspect of right arm, tenderness at left wrist hand.

X-ray taken revealed fracture on shaft proximal 1/3rd right, fracture of shaft humerus mid 1/3rd right with vertical splinter in distal fragment, undisplaced fracture acetabulum right, left wrist joint subluxation with radial collateral rupture with chip fracture of distal end of radius, fracture of IV meta-carpal left, dislocation of MCP joint right little finger."

3. The claimant was treated as an inpatient for more than 30 days where he underwent series of surgeries. Later, he took post operative treatment at Kshema Orthopedic and Trauma Centre. The claimant claimed that he was an agriculturist and was earning Rs.25,000/- p.m. and as a result of the injuries, he could not undertake agricultural activity. He also contends that he had lost the prospects of marital life. Based on these contentions, he filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.10,75,000/-.

4. The petition was opposed by the Insurer who alleged that the claimant was negligent and also that the driver of the offending lorry did not possess a licence. Based on the oral and documentary evidence, the Tribunal assessed the disability suffered by the claimant at 12% and treated the income of the claimant at a sum of Rs.5,000/- p.m. and having regard to his age, applied the multiplier of 16 and awarded the following compensation:

5. Being aggrieved by the same, the claimant has filed this appeal.

6. Learned counsel for the claimant submitted that the claimant had suffered three serious fractures which had rendered him virtually immobile and therefore, the tribunal was not justified in considering the disability at 12% as against the evidence of the doctor who deposed that the claimant had suffered disability to the extent of 36% to the limb.

7. Per contra, learned counsel for the Insurer submitted that the claimant had suffered disability to the extent of 36% to the limb and therefore, the Tribunal was justified in considering 1/3rd of it as the disability to the whole body. He submitted that as against the notional income of Rs.3,500/- p.m., the Tribunal ought not to have considered Rs.5,000/- as the notional income. He, therefore, submitted that the claimant is not entitled to any higher compensation.

8. I have considered the submissions made by the learned counsel for the claimant and the Insurer.

9. The injury sustained by the claimant leaves no doubt that the claimant was rendered immobile and therefore, the claimant was not in a position to undertake any activity. The claimant had suffered five fractures of which three were severe in nature and therefore, the Tribunal was not justified in considering the disability of 12%. One of the fractures was fracture of right pubis and therefore, the Tribunal must have pragmatically assessed the functional difficulty faced by the claimant. Therefore, having regard to the facts and circumstances of this case, it is the functional disability that had to be taken into consideration and not the physical disability. In the case on hand, the claimant was agriculturist and with fracture of femur and humerus as well as right pubis, it is impossible for an agriculturist to engage in hard labour. In that view of the matter, this Court considers it appropriate to consider the functional disability of the claimant at 25%.

10. In addition, having regard to the length of treatment and the pain and suffering that the claimant had undergone, it is imperative that the compensation determined by the Tribunal is reconsidered and re-determined as follows:

11. Since both the vehicles were involved in the accident and there is no clear evidence about the contributory negligence, it is appropriate that both the vehicles are held equal guilty of contributory negligence. Consequently, the Insurer of the offending vehicle is liable to pay 50% of the enhanced compensation as determined by this Court.

12. In view of the above, the appeal is allowed in part and the compensation of Rs.2,60,200/- determined by the Tribunal is enhanced to a sum of Rs.4,90,000/-. The Insurer/respondent No.2 herein is liable to pay 50% of the enhanced compensation along with interest @ 6% per annum from the date of claim petition till date of realization.

13. The Insurer is directed to deposit 50% of the enhanced compensation within a period of one month from the date of receipt of copy of this order.

14. Upon deposit, the enhanced compensation along with accrued interest shall be deposited in the name of the claimant in any nationalized bank for a period of three years.

15. The registry is directed to send back the TCR forthwith.