Karnataka High Court
The Branch Manager vs Smt. K. Uligamma @ Huligamma W/O ... on 7 August, 2019
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7th DAY OF AUGUST 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL No.103131 of 2015
c/w MISCELLANEOUS FIRST APPEAL Nos.103132 of 2015,
100207 of 2016 and 100208 of 2016 (MV)
IN MFA NO.103131 OF 2015
BETWEEN:
THE BRANCH MANAGER
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
BY ITS DIVISIONAL MANAGER
BALLARY, DIVISIONAL OFFICE
OPP:RADHIKA TAKIES
RAGHAVACHARI ROAD, BELLARY
REP BY ITS DIVISIONAL MANAGER
... APPELLANT
(By Sri. S.S. KOLIWAD, ADV. )
AND:
1. SMT. K. ULIGAMMA @ HULIGAMMA
W/O GOVINDAPPA
AGED ABOUT 35 YEARS, OCC:COOLI
R/O:UNTHAKALLU VILLAGE
PRESENTLY RESIDING AT
NEAR KANEKAL BUS STAND, BALLARI
2. T.RAVI BABU S/O T.NARENDRAPPA
AGED:28 YEARS, OCC:DRIVER
DOOR.NO.2/110,
2
DUDDEKUNTA VILLAGE
BELAGUPPA MANDALAM
ANANTHAPUR, DISTRICT:AP
3. SHIVAPRASAD K., S/O K.SREERAMULU
AGED:MAJOR
R/O:1-5-A, BRAMHANAKOTKUR VILLAGE
KURNOOL DIST:A.P
(OWNER OF TATA INDICA BEARING NO.AP-
02/TV.0994)
4. BOYA YERRISWAMY S/O B.GIRINATHAPPA
AGE:MAJOR, R/O:DOOR.NO.1-3-331,
RANGASWAMY NAGAR, ANANTHAPUR
A.P., POLICY HOLDER OF
THE TATA INDICA CAR BEARING
NO.AP-02/TV-0994)
... RESPONDENTS
(By Sri. Y LAKSHMIKANT REDDY, ADVOCATE FOR R1
SERVICE HELD SUFFICIENT IN RESPECT OF R2.
RESPONDENT NOS.3 AND 4 ARE SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR
VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD
DATED:22.07.2015, PASSED IN MVC.NO.538/2013 ON THE
FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-XII AT
BALLARI, AWARDING THE COMPENSATION OF
RS.2,06,400/- WITH INTEREST AT THE RATE OF 7% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
IN MFA NO.103132 OF 2015
BETWEEN:
THE BRANCH MANAGER
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
BY ITS DIVISIONAL MANAGER
BALLARY, DIVISIONAL OFFICE
OPP:RADHIKA TAKIES
3
RAGHAVACHARI ROAD
BELLARY
REP BY ITS DIVISIONAL MANAGER
... APPELLANT
(By Sri. S.S. KOLIWAD, ADVOCATE)
AND:
1. GOVINDAPPA S/O KADA SIDDAPPA
AGED:40 YEARS, OCC:COOLI
R/O:UNTHAKALLU VILLAGE
PRESENTLY RESIDING AT
NEAR KANEKAL BUS STAND
BALLARI.
2. T.RAVI BABU S/O T.NAREDRAPPA
AGED:28 YEARS, OCC:DRIVER
DOOR.NO.2/110,
DUDDEKUNTA VILLAGE
BELAGUPPA MANDALAM
ANANTHAPUR DISTRICT, AP.
3. SHIVAPRASAD K. S/O K.SREERAMULU
AGED:MAJOR
R/O:1-5-A, BRAMHANAKOTKUR VILLAGE
KURNOOL DIST:A.P
(OWNER OF TATA INDICA BEARING
NO.AP-02/TV.0994)
4. BOYA YERRISWAMY S/O B.GIRINATHAPPA
AGE:MAJOR, R/O:DOOR.NO.1-3-331,
RANGASWAMY NAGAR, ANANTHAPUR
A.P., POLICY HOLDER OF THE TATA INDICA CAR
BEARING NO.AP-02/TV-0994)
... RESPONDENTS
(By Sri. Y LAKSHMIKANT REDDY, ADV. FOR R1.
R2 TO R4 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR
VEHICLES ACT 1988 AGAINST THE JUDGMENT & AWARD
DATED 22.07.2015, PASSED IN MVC.NO.541/2013 ON THE
4
FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL-XII AT BALLARI AWARDING
COMPENSATION OF RS.3,82,000/- WITH INTEREST AT
THE RATE OF 7% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
IN MFA NO.100207 OF 2016
BETWEEN:
SMT.ULIGAMMA @ HULIGAMMA
W/O GOVINDAPPA
AGED ABOUT 35 YEARS,
OCC: COOLIE,
R/O UNTHAKALLU VILLAGE,
PRESENTLY R/O NEAR KANEKAL
BUS STAND, BALLARI.
... APPELLANT
(By Sri. Y LAKSHMIKANT REDDY, ADV.)
AND:
1. T. RAVI BABU S/O T. NARENDRAPPA
AGED ABOUT 28 YEARS,
DRIVER OF THE TATA INDICA CAR
BEARING REGN NO.AP-02/TV-0994,
R/O DOOR NO.2/110,
DUDDEKUNTA VILLAGE,
BELAGUPPA MANDALAM
IN ANANTHAPUR DISTRICT,
ANDHRA PRADESH
2. SHIVAPRASAD K, S/O K SREERAMULU
OWNER OF THE TATA INDICA CAR
BEARING REGN NO. AP-02/TV-0994,
R/O NO.1-5-A, BRAMHANAKOTKUR VILLAGE
IN KURNOOL DISTRICT, ANDHRA PRADESH.
3. BOYA YERRISWAMY S/O B GIRINATHAPPA
INSURANCE POLICY HOLDER OF
5
THE TATA INDICA CAR BEARING REGN
NO. AP-02/TV-0994,
R/O ODOOR NO.1-3-331,
RANGASWAMY NAGAR,
ANANTHAPUR, ANDHRA PRADESH.
4. M/S UNITED INDIA INSURANCE
COMPANY LIMITED
BY ITS DIVISIONAL MANAGER,
BALLARI.
... RESPONDENTS
(By Sri. S.S. KOLIWAD, ADV. FOR R4
R1 TO R3 NOTICE DISPENSED WITH V/O DATED 8.3.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST JUDGMENT AND AWARD DATED 22.7.2015
PASSED IN MVC NO.538 OF 2011 ON THE FILE OF THE
MOTOR ACCIDENT CLAIMS TRIBUNAL XII AT BALLARI
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSTION.
IN MFA NO.100208 OF 2016
BETWEEN:
GOVINDAPPA S/O KADA SIDDAPPA
AGED ABOUT 40 YEARS, OCC: COOLIE,
R/O UNTHAKALLU VILLAGE,
PRESENTLY R/O NEAR KANEKAL BUS STAND,
BALLARI.
... APPELLANT
(By Sri. Y LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. T. RAVI BABU S/O T. NARENDRAPPA,
AGED ABOUT 28 YEARS,
DRIVER OF THE TATA INDICA CAR
6
BEARING REGN NO.AP-02/TV-0994,
R/O DOOR NO.2/110,
DUDDEKUNTA VILLAGE,
BELAGUPPA MANDALAM,
IN ANANTHAPUR DISTRICT,
ANDHRA PRADESH.
2. SHIVAPRASAD K S/O K SREERAMULU
OWNER OF THE TATA INDICA CAR
BEARING REGN NO.AP-02/TV-0994,
R/O NO.1-5-A, BRAMHANAKOTKUR
VILLAGE IN KURNOOL DISTRICT,
ANDHRA PRADESH.
3. BOYA YERRISWAMY S/O B GIRINATHAPPA
INSURANCE POLICY HOLDER OF THE TATA INDICA
CAR BEARING REGN NO AP-02/TV-0994,
R/O DOOR NO.1-3-331,
RANGASWAMY NAGAR,
ANANTHAPUR, ANDHRA PRADESH
4. M/S UNITED INDIA INSURANCE COMPANY LIMITED,
BY ITS DIVISIONAL LMANAGER,
BALLARI.
.. RESPONDENTS
(By Sri. S.S. KOLIWAD, ADV. FOR R4.
R1 TO R4 ARE SERVED.)
THIS MFA IS FILED U/S.173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT & AWARD
DATED:22.07.2015, PASSED IN MVC.NO.541/2013 ON THE
FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL-XII, AT
BALLARI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING
ON FOR ORDERS/ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
7
JUDGMENT
Though these appeals are listed for hearing on I.As.1 of 2019 filed by the claimants for withdrawing the compensation and I.As. in the connected appeals for condoning the delay in filing the appeals, with consent of both the counsel, the matter is heard finally.
2. Miscellaneous First Appeal Nos.103131 of 2015 and 103132 of 2015 are filed by the insurer whereas Miscellaneous First Appeal Nos.100207 of 2016 and 100208 of 2016 are filed by the claimants for enhancement of compensation assailing the common judgment and award dated 22.07.2015 passed by the Motor Accident Claims Tribunal XII, Bellary, (hereinafter referred to as the 'Tribunal', for short) in MVC Nos.538 and 541 of 2013.
3. I have heard arguments of the learned counsel appearing for both the parties in all the appeals.
8
4. Ranking of the parties before the Tribunal is retained for the sake of convenience.
5. The claimant Uligamma in MVC No.538 of 2013 and one Govindappa-claimant in MVC No.541 of 2013 filed petitions under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the 'Act', for short) claiming compensation of Rs.12,00,000/- and Rs.14,25,000/- respectively inter alia contending that on 22.02.2013 at about 7.15 pm when both the claimants, being the wife and husband, were proceeding on their motorcycle bearing registration No.KA.35/Q.1047 from Devagiri towards Unthakal village, at that time, a Tata Indica car bearing registration No.AP.02/TV.0994 came in a high speed in rash and negligent manner and dashed to the petitioners' motorcycle due to which both of them fell down and sustained grievous injuries. They were shifted to VIMS Hospital, Ballary and thereafter were treated at Sanjeevini Hospital Ballary. Both of them 9 spent huge amount towards medical expenses and they are suffering from disability due to the injuries and lost earning their capacity, hence claimed compensation as stated above under various heads.
6. In pursuance to the notice issued by the Tribunal, 1st, 3rd and 4th respondents appeared and filed their statement of objections by denying all the allegations made against them in the claim petition as false and contended that the petitions of the claimants are not maintainable either in law or on the facts and the insurer had taken a specific contention that respondent No.1 was not holding valid driving licence as on the date of the accident and the petitioners have to prove the allegations against the respondents with proof. It further contended that the claim of the petitioners is excessive and exorbitant in nature and prayed for dismissal of the petitions.
7. Based on the rival pleadings, the Tribunal framed issues as under:
10
" 1. Whether petitioners in both cases prove that, they have sustained bodily injuries in RTA that was occurred on 22.2.2013 at about 7.15 pm near Devagiri cross road on Ballari- Kalyanadurga road, due to rash and negligent driving of the TATA Indica car bearing Reg.No.AP.02/TV.0994TA.8386 by first respondent?
2. Whether fourth respondent proves that, the first respondent was not having valid and effective driving licence to drive the said vehicle as on the date of accident?
3. Whether petitioners are entitle for compensation as prayed for?
4. What order or an award?"
8. To substantiate their contentions, the claimants themselves examined as PWs.1 and 2. They also got examined doctors as PWs.3 and 4 and got marked 17 documents as per Exs.P-1 to P-17. On behalf of respondent No.4, RW-1 was examined and got marked Exs.R-1 to R3.
11
9. After considering the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 in the negative i.e., against the insurer and issue No.3 partly in the affirmative and awarded compensation of Rs.2,06,400/- in MVC No.538 of 2013 as under:
1 For the injuries pain and Rs. 50,000.00 sufferings 2 Towards medical expenses and Rs. 60,000.00 also attendant charges.
3 For the loss of future earning Rs. 86,400.00 capacity or for disability 4 For the loss of future Rs. 10,000.00 amenities of life.
Total Rs. 2,06,400.00 and awarded a sum of Rs.3,82,000/- in MVC No.541 of 2013 as under:
1 For the injuries pain and Rs. 50,000.00 sufferings 2 Towards medical expenses and Rs. 1,50,000.00 also attendant charges.
3 For the loss of future earning Rs. 1,62,000.00 12 capacity or for disability 4 For the loss of future Rs. 20,000.00 amenities of life.
Total Rs. 3,82,000.00
10. Assailing the judgment and award passed by the Tribunal fastening the liability on the insurer, insurance company has filed MFA Nos.103131 of 2015 and 103132 of 2015 whereas the claimants have filed MFA Nos.100207 and 100208 of 2016 seeking enhancement of compensation.
11. Sri. S.S. Koliwad, learned counsel for the insurer, argued that the Tribunal committed an error in fastening the liability even though the insurer taken a contention in the statement of objection that the driver of the Indica car did not posses a valid driving licence to drive the vehicle in question as on the date of the accident as he was holding driving licence in respect of LMV non-transport whereas the vehicle in question was 13 a transport vehicle and there was no endorsement obtained from the RTO to drive the said vehicle, there is clear violation of the conditions of the policy. Therefore, it is contended that the Tribunal has not properly appreciated the evidence of the respondent and also Ex.R1 which is DL extract. Therefore, learned counsel for the insurer prayed for allowing the appeals and set aside the judgment and award by fastening the liability on the insurance company.
12. Per contra learned counsel for the claimants in MFA Nos.100207 and 100208 of 2016 supported the judgment and award passed by the Tribunal and fastening the liability on the respondent to pay the compensation and contended that the dispute with respect to non-obtaining transport endorsement and driving the motor vehicle by a person holding driving licence LMV non-transport has been clarified by the Hon'ble Supreme Court in the case of Mukund 14 Dewangan vs. Oriental Insurance Company Limited and others reported in (2016) 4 Supreme Court Cases 298 and contended that the persons holding driving licence i.e. LMV non-transport are also entitled to drive the transport vehicle. Therefore, the finding of the Tribunal fastening liability on the insurer cannot be interfered with and prayed for dismissal of the appeals filed by the insurer. He further contended that in respect of the quantum of compensation in the appeal filed by the claimant though the claimant-Uligamma was a coolie earning Rs.6,000/- per month, the Tribunal has considered a sum of Rs.4,500/- only which is very meager. However, the disability to the whole body as per the evidence of the doctors is 20%, the Tribunal has considered the disability at 10% only which is very meager. The award of compensation in respect of other heads i.e. pain and suffering, medical expenses, loss of amenities, loss of earning during laid up period are not at all properly considered by the 15 Tribunal. Hence, prayed for enhancement of the compensation in MFA No.100207 of 2016.
13. Similar contention has been taken by the learned counsel for the appellant-claimant in the connected appeal filed by the husband i.e., in MFA No.100208 of 2016. Though he was earning Rs.9,000/- per month but the Tribunal considered only Rs.4,500/- per month which is meager. Though the appellant has suffered permanent disability to an extent of 44% to the whole body, the Tribunal has considered 20%, which is very meager. The claimant has sustained six fractured injuries but the Tribunal has awarded meager amount of Rs.50,000/- towards pain and suffering. Compensation awarded under the head loss of amenities is very meager. No compensation has been awarded under the head loss of earning during laid up period. Hence, prayed for enhancement of compensation.
16
14. Upon hearing the learned counsel appearing for both the parties and on perusal of the records, the points that arise for my consideration in all the appeals are as under:
"a. Whether the Tribunal was justified in not fastening the liability on the insurer in view of non-possessing driving licence (transport) endorsement by the driver of the offending vehicle?
b. Whether the claimants are entitled for enhancement of compensation?
c. What order?"
15. The claimants have established the factum of occurrence of accident dated 22.02.2013 at 7.15 pm when both the claimants were proceeding on the motorcycle bearing registration No.KA-35/Q.1047 from Devagiri towards Unthakal village. At that time, a Tata Indica car bearing registration No.AP-02/TV0994 came in a rash and negligent manner with high speed and 17 dashed to the motorcycle of the claimants due to which both of them sustained injuries and were shifted to VIMS hospital Ballary and later were treated as an inpatient in both VIMS hospital as well as Sanjeevini Hospital Hospital.
16. Ex.P-1 is the copy of the FIR with complaint. Ex.P-1(a) is the translation copy. Ex.P-2 is the charge sheet and Ex.P-4 is the sketch. From the evidence of PWs.1 and 2 and the aforesaid documents, it is clear that the accident in question occurred due to the rash and negligent driving by the driver of the Indica car. Exs.P-3 and P-5 are the wound certificate and the discharge summary of PW-1 and Exs.P-10 and P-11 are the wound certificate and discharge summary of PW2, who is claimant in MVC No.541 of 2013, clearly go to show that due to the said accident, they have sustained grievous injuries. In respect of the factum of negligence has been proved on the part of the driver of the offending vehicle was not questioned by the driver or the 18 owner of the vehicle. However, the insurer had taken a specific contention that the driver of the offending vehicle was not holding a valid and effective driving licence as on the date of the accident. They raised a ground that the driver in question was holding LMV non-transport licence and had not obtained any endorsement from the RTO for driving transport vehicle. Therefore, there is clear violation of the terms and conditions of the policy by the owner of the vehicle who allowed the driver to drive the vehicle in question who did not have a valid driving licence. Therefore, no liability ought to have been fastened on the insurer which is challenged in the aforesaid two appeals-MFA Nos.103131 and 103132 of 2015.
17. The only controversy is that whether the driver of the vehicle in question holding licence to drive LMV non-transport was authorised to drive LMV transport without Transport endorsement? 19
18. The said controversy has been clarified by the Hon'ble Supreme Court in Mukund Dewangan's case (supra) wherein it is held that a person holding driving licence (non-transport vehicle) is also authorized to drive LMV transport vehicle and no separate Ttransport endorsement is required, in view of the amendment brought to the Act with effect from 14.11.1994, a person holding LMV (non-transport) driving licence is also authorized to drive LMV transport vehicle and there is no need of any endorsement, in view of the dictum laid down by the Hon'ble Apex Court, the objection raised by the insurer about the violation of policy conditions in respect of LMV transport is no more available and liable to be rejected. Therefore, there is no error or illegality committed by the Tribunal in fastening the liability on the insurer. Therefore, I answer point No.1 in favour of the claimants and as against the insurer in both the appeals.20
19. The next controversy is in respect of the quantum of compensation which were disputed by the claimants in the MFA Nos.10207/2016 and 100208/2016.
20. The appellant in MFA No.100207/2016 (claimant in MVC No.538/2013) i.e., Uligemma @ Huligamma had suffered fracture of Tibia and Fibula of right leg. Apart from the said injury, she also sustained three more injuries and injury No.3 is the fracture injury and remaining other injuries are simple in nature. Ex.P3 shows she has sustained injury over abdomen, right leg swelling, tenderness and restricted movement, cut lacerated wound skin deep over scalp which is head injury. Out of the head injury, two more injuries are mentioned i.e., injury over right temporal region measuring 3x1 cm and over left temporal region measuring 3x1 cm with acute bleeding and another injury of multiple abrasion over forehead with abrasion over right hand. Except the fracture of upper 1/3rd of 21 Tibia and Fibula, remaining injuries are simple in nature. Learned counsel contended that the Tribunal has awarded very meager amount in respect of pain and agony. On perusal of the award, the Tribunal has awarded Rs.50,000/- towards 'pain and suffering'. There was one fracture injury and remaining injuries are simple in nature. Therefore, awarding of Rs.50,000/- towards 'pain and suffering' is sufficient and cannot be said to be meager. The compensation awarded under the head of 'pain and suffering' is retained.
As regards the medical expenditure, the claimants produced the hospital bills at Ex.P9 for Rs.46,708/- and by considering the facts and circumstances, the Tribunal awarded Rs.60,000/- towards medical expenses including attendant charges. In my considered opinion, the amount of Rs.60,000/- awarded towards medical expenses and attendant charges is sufficient and does not call for any interference. 22
As regards the income of the claimant, she has stated that she was earning Rs.6,000/- per month by working as coolie, whereas the Tribunal has considered the income of only Rs.4,500/- per month. For the accidents of the year 2013, this court used to consider Rs.7,000/- per month as notional income for the unskilled labour. Even in the Lok Adalath, we are considering Rs.7,000/- per month as notional income. Though the claimant has stated that she was earning Rs.6,000/- per month as coolie work, after the completion of her coolie work, she has to do the household work and she can save some amount by doing household work without engaging the maid servants. Therefore, the income of the claimant should be considered as Rs.7,000/- per month as against Rs.4,500/- per month considered by the Tribunal. As per the evidence of the doctor - PW3 and the disability certificate at Ex.P7, the claimant had suffered disability 20% to the whole body. However, it was seriously 23 disputed by the insurer that the doctor has not mentioned any disability towards the specific limb in order to compare with the disability of 20% to the whole body. The injury sustained by the claimant was fracture of Tibia and Fibula of right leg. The other injuries are simple in nature. Therefore, by considering the evidence, the Tribunal has considered 10% of the disability towards whole body. I am of the view that the percentage of disability taken by the Tribunal is proper. If the income of the claimant is considered at Rs.7,000/- per month, by taking 10% disability and applying the appropriate multiplier of 16, the compensation towards 'loss of future earning capacity' would come to Rs.1,34,400/- (10% of Rs.7000x12 x16).
Further, the Tribunal has awarded Rs.10,000/- towards 'loss of future amenities of life'. But the claimant being the woman suffered head injury, fractured leg and other injuries. She has undergone surgery and as per the evidence of the doctor, she 24 cannot enjoy life as she was earlier to the accident. Therefore, considering the facts and circumstances of the case, the loss of amenities is increased to Rs.30,000/- as against Rs.10,000/- awarded by the Tribunal. The Tribunal has not awarded any amount towards 'loss of income during the laid up period'. By looking to the injuries and the treatment taken by the claimant for 23 days as injured patient, at least three months should be considered towards loss of income during the laid up period, which would come to Rs.21,000/- (Rs.7000 x 3). Accordingly, the reassessed compensation is as under:
Amount (Rs.) Pain and suffering 50,000.00 Medial Expenses and attendant 60,000.00 charges Loss of earning capacity 1,34,400.00 Loss of amenities 30,000.00 Loss of salary income during 21,000.00 the laid up period Total 2,95,400.00 25 Hence the claimant is entitled to a compensation of Rs.2,95,400/- as against Rs.2,06,400/- awarded by the Tribunal.
21. The appellant in MVA No.100207/2016 (claimant in MVC No.541/2013) has produced Ex.P10 -
would certificate which shows that he has sustained multiplier fractures as under:
i. Left knee joint puncture wound with swelling and tenderness.
ii. Right thigh shows puncture wound with swelling, tenderness and restricted movement iii. Multiple abrasions - left index finger (2x1cm); forehead (3x3cm), right forearm backside 8x1 cm and left foot (3x1 cm) X-ray film shows there were almost six fractures sustained by the claimant. All the injuries are grievous in nature. He has also undergone surgeries and he has suffered fracture to 1/3rd femur as well as tibia and fibula and also near the neck of the right femur, at edge of pelvis bone there was comminuted fracture of left 26 1/3rd tibia and fibula and comminuted fracture of upper 1/3rd both legs and also there was fracture on the knee.
The claimant suffered lot of pain and agony for so many multiple fractures. The Tribunal awarded only Rs.50,000/- towards 'pain and agony'. In my considered view, the said amount was very meager, which requires enhancement to Rs.75,000/- under the head of 'pain and agony'. As regards the income of the claimant, he has claimed Rs.9000/- per month as income, whereas the Tribunal has considered only Rs.4,500/- per month which is against the evidence on record. Even normally this Court used to take notional income for the year 2013 as Rs.7,000/- per month. Therefore, in the absence of any document, I propose to consider Rs.7000/- per month as notional income for unskilled labour. As regards disability, claimant has examined the doctor - PW4 and the disability certificate produced at Ex.P3 shows that the claimant was suffering from 44% of disability to the whole body. 27 However, the doctor has not explained the disability to the particular limb in order to calculate or arrive at the conclusion that 44% of disability to the the whole body. In view of the absence of any extent made by the doctor, the Tribunal has considered 20% towards disability to the whole body. However, by considering the fracture of both the legs, apart from forehead and right forearm, the disability of 20% towards whole body is meager. Therefore, I propose to enhance the disability of 30% to the whole body. If income of Rs.7,000/- is considered, 30% would be Rs.2100. Accordingly, by applying the appropriate multiplier of 15, the compensation towards 'loss of future earning capacity would come to Rs. 3,78,000/- (Rs.2100x12x15).
As regards the medical expenses, the bills were produced which amounts to Rs.1,29,000/- and the Tribunal after considering the attendant charges, has awarded Rs.1,50,000/- towards medical expenses and attendant charges. I am of the view that the said 28 amount is sufficient and need not call for any interference. As regards the 'loss of amenities', the Tribunal has awarded Rs.20,000/- which is on the lower side. Since the claimant has sustained multiple fractures to both the legs and the photograph also shows that he suffered fractures of both the legs, by considering the facts and circumstances of the case, I propose to award Rs.50,000/- towards 'loss of amenities' as against Rs.20,000/- awarded by the Tribunal. The Tribunal also committed error in not awarding any amount for the laid up period. Considering the injuries are multiple fractures, definitely it is not possible for the claimant to attend his work for minimum 3-6 months. Therefore, I propose to consider four months as laid up period during the treatment and bed rest. If Rs.7,000/- income per month is considered, for four months it comes to Rs.28.000/-.
29
In all, the claimant is entitled for reassessed compensation as under:
Amount (Rs.) Pain and suffering 75,000.00 Medial Expenses & attendant 1,50,000.00 charges Loss of earning capacity 3,78,000.00 Loss of amenities 50,000.00 Loss of income during the laid 28,000.00 up period Total 6,81,000.00 The claimant is entitled to a enhanced compensation of Rs.6,81,000/- as against Rs.3,82,000/- awarded by the Tribunal.
22. Consequently the appeals filed by the Insurance Company in MFA No.103131/2015 and 103132/2015 are dismissed. Appeals filed by the claimants in MFA Nos.100207/2016 and 100208/2016 are allowed in part.
The common judgment and award dated
22.07.2016 passed by the Tribunal in MVC
30
Nos.538/2013 and 541/2013 is modified. The claimant in MFA No.100207/2016 is entitled for the compensation of Rs.2,95,400/- as against Rs.2,06,400/- awarded by the Tribunal and the claimant in MFA No.100208/2016 is entitled for compensation of Rs.6,81,000/- as against Rs.3,82,000/- awarded by the Tribunal. However, the interest awarded by the Tribunal is reduced to 6% p.a. from 7% p.a. The respondent-Insurer is directed to deposit the enhanced compensation together with interest at the rate of Rs.6% pa. from the date of petition till realization.
The amount deposited by the Insurance Company before this Court be transmitted to the Tribunal.
As regards the deposit, the order passed by the Tribunal is not disturbed. Out of the compensation awarded to the claimant in MVC No.538/2013, Rs.1,00,000/- shall be deposited in any nationalized bank for a period of three years. Out of the 31 compensation awarded to the claimant in MVC No.541/2013, Rs.2,00,000/- shall be deposited in any nationalized bank for a period of three years. However, they are at liberty to receive periodical interest accrued thereon.
In view of disposal of the main appeals, pending I.As. do not survive for consideration and hence I.A.s. are dismissed.
Sd/-
JUDGE Kmv paras 1 to 18 gab paras 19 to end