DANANJAYA GOWDA Vs. SAIRAM

JUDGEMENT

(1.) This miscellaneous first appeal is filed by the claimant against the impugned judgment and award dated 24.10.2008 passed by the II Additional District Judge, Member, MACT-III, D.K., Mangalore, questioning the quantum of compensation awarded by the Tribunal and apportioning the liability to pay compensation between respondents 1 and 2.

(2.) It is the case of the claimant that he was working as a cleaner in a lorry bearing Regn.No.KA- 19-D-9745 belonging to the first respondent insured with the second respondent. On 18.2.2006 at 10.10 hours when the said lorry was proceeding from Byndoor towards Bhatkal side, the said lorry was driven by the driver in a rash and negligent manner and at a high speed and when it reached Sheroor check post, the driver dashed the lorry against another lorry bearing Regn.No.KA-19B-9342 which was parked on the left side of the road from behind as a result of which the parked lorry moved ahead and dashed against another lorry bearing Regn.No.KA-19A-5272 which was parked on the left side of the road from its behind. Due to the impact, the claimant sustained multiple grievous injuries and was treated as inpatient in KMC Hospital from 18.2.2006 to 16.3.2006 i.e. for a period of 73 days. On a claim petition filed b7y him and on contest by the second respondent-Insurance Company, the Tribunal on appreciation of the oral and documentary evidence awarded compensation of Rs.3,60,000/- with interest at 6% p.a. from the date of petition till realization and directed the first respondent to deposit a sum of Rs.2,61,689/- and the second respondent to deposit a sum of Rs.98,311/-. Being aggrieved by the quantum of compensation awarded and also apportioning the liability between the insurer and the insured, the appellant-claimant has filed this appeal.

(3.) The contention of the appellant is that the amount awarded towards injury, pain and suffering in a sum of Rs.40,000/- is on the lower side. The wound certificate and disability certificate as per Exs.P5 and P11 coupled with the evidence of P.W.2- doctor clearly establishes that the claimant had sustained grievous injuries and was treated for 75 days as in-patient and has to be under bed rest for 1 years. The Tribunal has not appreciated the evidence on record in proper perspective in awarding Rs.25,000/- towards incidental expenses, which is inadequate. The Tribunal has not properly appreciated the evidence of P.W.2-Doctor, in awarding Rs.25,000/- towards future medical expenses, which clearly shows that the appellantclaimant requires future surgery for removal of nails, which is also on the lower side. The amount of Rs.86,000/- awarded towards medical treatment and hospitalization charges is not in accordance with the evidence on record and much meager and infact Exs.P1 to P180 clearly reflects that the claimant had spent more than Rs.1,50,000/-. It is further contended that the Tribunal has awarded only Rs.36,000/- towards loss of income during laid up period, which is inappropriate. In fact, the appellantclaimant was earning Rs.4,000/- per month and additional Rs.50/- per day as bata, on the contrary, the Tribunal has taken Rs.3,000/- per month as his income. Further, he has taken bed rest for nearly 1 years, which fact has not been considered. The appellant has sustained grievous injuries and has lost 100% earning capacity and Ex.P11 clearly shows that he cannot do work as he was doing earlier, which fact has not been properly appreciated by the Tribunal in awarding Rs.1,53,000/- towards loss of earning capacity.