Karnataka High Court
Smt Mangala B R vs M/S The Oriental Insurance Co Ltd on 12 August, 2013
Equivalent citations: 2014 AAC 146 (KAR), 2014 (1) AIR KANT HCR 70, (2014) 1 ACC 12(1), (2013) 5 KANT LJ 430
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
MFA No.6536/2009 (MV)
BETWEEN:
SMT.MANGALA.B.R,
W/O.SRI R.N.HARIPRASAD,
AGED ABOUT 47 YEARS,
R/AT 3RD CROSS,
LALBAGH ROAD,
BANGALORE-560 027.
...APPELLANT
(BY SMT.G.K.SREEVIDYA FOR SRI. T.N.VISWANATHA,
ADVOCATE)
AND:
1. M/S.THE ORIENTAL INSURANCE CO. LTD,
BY ITS BRANCH MANAGER,
BRANCH OFFICE, NO.1 & 2,
2ND FLOOR, 1ST CROSS, SIDDAPURA,
OPP. 9TH CROSS, WILSON GARDEN,
HOSUR ROAD,
BANGALORE-560027.
2. SRI.NOUSHAD PASHA,
S/O. NAZEER AHMED,
MAJOR,
R/AT NO.2, 19 (O), 409 (N),
2
DAYANAND NAGAR,
JAYANAGAR I BLOCK,
BANGALORE-560011.
3. MR.B.GOPAL,
S/O.BHADRA REDDY,
MAJOR,
R/AT NO.455/7, 15TH CROSS,
LAKKASANDRA,
BANGALORE-560011.
... RESPONDENTS
(BY SRI.V.NARAYANASWAMY, ADVOCATE FOR R1
SRI.P.G.RAMESH, ADVOCATE FOR R3
NOTICE TO R2 D/W V/O DT.12.8.13)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 13.5.2009
PASSED IN MVC NO. 8116/2007 ON THE FILE OF THE I
ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT, METROPOLITIAN AREA, BANGALORE,
(SCCH.NO.11), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
***
JUDGMENT
This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
3
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding injuries sustained by the claimant in a road traffic accident occurred on 15.10.2007 due to rash and negligent riding of the offending Kinetic Honda bearing registration No.KA-05-EC-7821 by its rider and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
"Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"4
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per Ex.P6-wound certificate, the claimant has sustained following injuries:-
a) Fracture M/3 shaft left humerus with comminuted and left radial nerve injury.
b) Lacerated wound left forehead 2" x 1" and left foot ½" x ¾"
c) Abrasion over left forearm and left foot.
The injuries sustained and treatment taken by the claimant are also evident from Ex.P7-discharge summary, Ex.P-11-inpatient record, Ex.P12-X-ray (old) and Ex.P13-recent X-ray films (2) and supported by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2- Dr.Kishor Kumar in his evidence has stated that the 5 claimant has suffered disability of 35% to the left limb and 12% to the whole body.
7. Considering the nature of injuries sustained by the claimant, a sum of Rs.40,000/- awarded by the Tribunal towards 'pain and suffering' is just and proper and there is no scope for enhancement under this head.
8. As Rs.38,000/- awarded by the Tribunal towards 'medical expenses' is based on the medical bills produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 18 days in Phoenix Nursing Home. Considering the duration of treatment, a sum of Rs.8,000/- is awarded towards 'incidental expenses' such as conveyance, nourishment and attendant 6 charges as against Rs.5,000/- awarded by the Tribunal.
10. The claimant claims to have been earning Rs.4,500/- per month by working as a Xerox operator in a Xerox shop, but the same is not established by producing any documents. In the absence of proof of income, considering her age as 45 years, year of accident as 2007 and her avocation as daily wages, her income could be assessed at Rs.4,000/- per month. The nature of injuries suggest that she must have been under rest and treatment for a period of 4 months and therefore a sum of Rs.16,000/- is awarded towards 'loss of income during laid up period' as against Rs.12,000/- awarded by the Tribunal.
11. Considering the nature of injuries sustained by the claimant, disability stated by the doctor and certain amount of discomfort and unhappiness the 7 claimant has to undergo in her future life, a sum of Rs.15,000/- is awarded towards 'loss of amenities'.
12. The claimant is aged about 45 years at the time of accident, and the multiplier applicable to her age group is 14. Her income is assessed at Rs.4,000/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 12% to the whole body. Therefore, the 'loss of future income' works out to Rs.80,640/- (4000 x 12 x 14 x 12/100) and it is awarded as against Rs.56,200/- awarded by the Tribunal.
13. Considering the nature of injuries, a sum of Rs.10,000/- is awarded towards 'future medical expenses' as against Rs.5,000/- awarded by the Tribunal.
14. Thus, the claimant is entitled for the following compensation:-
8
HEADS Rs.
Pain and sufferings 40.000
Medical Expenses 38.000
Incidental expenses 8.000
Loss of income during laid up 16.000
period
Loss of amenities 15.000
Loss of future income 80,640
Future medical expenses 10,000
TOTAL 2,07,640
LESS: Compensation awarded 1,64,200
by the Tribunal
BALANCE 43,440
15. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.43,440/- with interest at 6% p.a. from the date of claim petition till the date of realization.
16. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 75% of 9 the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.
17. The Tribunal while releasing 25% of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.
Sd/-
JUDGE VM