CMA/373/2007 of Dondi Satya Gangadhar Vs Dondi Shresta , Kinnu on 24 December 2008

COMMON JUDGMENT:

C.M.A.No.373 of 2007 is preferred by United India InsuranceCompany Limited aggrieved by the order and decree dated 10-03-2005 in O.P.No.1637 of 2002 while the claimant therein filedC.M.A.No.1160 of 2010 dissatisfied with the quantum of compensation.

2. The facts, in nutshell, are that on 02-06-2002 DulipalaSivarama Krishna was standing at the Public Telephone Booth at JayaBharathi Apartment and a crane bearing No.APU-8881 driven in arash and negligent manner dashed the petitioner resulting in injuries tohim. He filed the above O.P. claiming compensation of Rs.4,00,000/-from the owner and insurer of the crane involved in the accident. TheTribunal after considering the oral evidence of PWs 1 to 3 and Exs.A-1to A-12 on behalf of the injured and Ex.B-1 c.c. of the insurance policyon behalf of respondents in OP, held that the accident occurred due torash and negligent driving of the crane by its driver, and awardedcompensation of Rs.2,55,993/- with proportionate costs and interest at9% per annum from the date of petition till date of realisation, byholding that the owner and insurer of the crane are jointly and severallyliable to pay the compensation. Aggrieved thereby, both the claimantand insurer filed the above appeals.3. Heard learned counsel appearing for the insurancecompany and learned counsel appearing for the claimant and perusedthe record.

4. The finding of the Tribunal as to the rash and negligentdriving of the crane is not disputed. Coming to the quantum ofcompensation, it is seen from the evidence of PWs 1 and 3 and alsoExs.A-7, A-11 and A-12 that the claimant was working in VijayaElectricals Limited by the date of accident and drawing net salary ofRs.2,745/- per month and as such, his annual income works out toRs.32,940/-. PW-2 is the Doctor attached to Apollo Hospital where the claimant had undergone treatment and the said Doctor stated that theclaimant suffered 35% permanent disability and that the foot of theinjured is crushed, all bones are exposed and there is loss of skin. Thus, the net loss of earnings on account of permanent disability worksout to Rs.11,529/- (35/100 x 32,940). As per Exs.A-2 and A-4, theclaimant was aged 25 years as on the date of accident and in thecircumstances, there is no reason to take a different view and themultiplier appropriate to 25 years age of the deceased is '17'. Havingregard to the evidence on record, this Court is of the view that theTribunal has rightly calculated the loss of earnings on account ofpermanent disability.

5. PW-2 Doctor had stated that the claimant cannot stand forprolonged period, cannot walk long distance and cannot sit properlyand that he had undergone treatment in Apollo Hospital for five days. Having regard to the injuries suffered by the claimant and period oftreatment, the Triunal has rightly granted Rs.10,000/- towards pain andsuffering. The Tribunal had relied upon Ex.A-8, bunch of medical bills,and grnted Rs.44,000/- towards medicines and treatment, whichappears to be just and reasonable having regard to the nature ofinjuries and the permanent disability suffered by the claimant. In orderto get back to normal health, the claimant will have to take extra-nourishment and having regard to the injuries suffered by the claimantand the permanent disability, I am inclined to granted Rs.10,000/- asclaimed by him and as such, the compensation under this head isenhanced to Rs.10,000/-, instead of Rs.5,000/- granted by theTribunal. The Tribunal granted Rs.1,000/- towards transportation,which is just and reasonable.

6. In the result, the appeal filed by the insurance company isdismissed while the appeal filed by the claimant is partly allowedenhancing the compensation to Rs.2,60,993/-. The enhancedcompensation shall carry interest at the rate of 7% per annum from thedate of petition till payment.

22-07-2010

bsc

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GHULAM MOHAMMED, J.