Karnataka High Court
Sri Manjunathaswamy vs The Managing Director on 7 August, 2018
Author: H T Narendra Prasad
Bench: H.T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
MFA No.1623/2016 (MV)
BETW EEN
BETWEEN
SRI MANJUNATHASWAMY
S/O NANJUNDAPPA,
AGED ABOUT 32 YEARS,
R/AT S-95, 1ST CROSS,
13TH MAIN, 2ND STAGE,
B.E.L. LAYOUT,
BASAVESHWARANAGAR,
BANGALORE - 560 079.
... APPELLANT
(BY SRI K.R. RAMESH, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
B.M.T.C. DEPOT,
K.H. ROAD, SHANTHINAGAR,
BANGALORE - 560 027.
2. UNITED INDIA INSURANCE CO., LTD.,
CHICKPET BRANCH,
LAKSHMI COMPLEX,
K.R. ROAD,
OPP. VANI VILAS HOSPITAL,
BANGALORE-560 053
REP. BY ITS BRANCH MANAGER.
2
... RESPONDENTS
(BY SRI D. VIJAYAKUMAR, ADV., FOR R1;
SRI P.S. JAGADISH FOR MR. P.B. RAJU, ADV., FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED:15.12.2015 PASSED IN MVC
NO.5938/09 ON THE FILE OF THE 1ST ADDITIONAL
SMALL CAUSES JUDGE & 27TH ACMM, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has challenged the award dated 15.15.2015 passed by the Motor Accident Claims Tribunal, Bangalore, (SCCH-11), by which the Tribunal has awarded Rs.4,73,000/- with 6% interest per annum. Being aggrieved by the same, the appellant-claimant is seeking for enhancement of compensation.
2. The brief facts are that, on 17.02.2009 at about 2.10 p.m., the appellant was riding his motor 3 cycle bearing Registration No.KA-04/ER/5166 on the extreme left side of the road at the junction of Hegganahalli Road, Doddanna Viedya Samsthe by observing traffic rules and regulations slowly and cautiously. At that time, the driver of BMTC bus bearing Registration No.KA-01-F-3540 came from behind in rash and neglect manner endangering human life without observing any traffic rules and dashed to the motor cycle of the appellant and caused the accident. Due to impact, the appellant fell down and sustained grievous injuries. Immediately, he was shifted to Jai Maruthi Hospital, Hegganahalli, Bangalore, where first aid was given. Due to severe injuries sustained by the appellant he was referred to PANACEA Hospital, Bangalore for further treatment, where he took the treatment as an inpatient from 17.02.2009 to 21.02.2009 and he underwent two surgeries. Again he was admitted to the said hospital from 12.03.2009 to 15.03.2009 and again he underwent 4 surgery on 12.03.2009. After discharge, again he had taken treatment in the same hospital as inpatient from 13.06.2009 to 14.03.2009 and underwent Carpo phalangeal joints of index finger, middle finger, right finger, little finer and debleting of flap over hand and forearm done under brachial black and he was discharged with an advice for follow up treatment. After recovering from the injuries, the appellant had filed a claim petition. To establish his case, he has examined himself as PW1, Dr. Arun H.S. as PW2 and Dr. Ravi Ramachandra as PW3 and got marked 22 documents as Exs.P1 to P22. On the other hand, the 2nd respondent- Insurance Company has examined three witnesses as RWs.1 to 3 and got marked certified copy of the judgment in C.C. No.3205/2009. The claimant being aggrieved by the compensation awarded by the Tribunal, had preferred MFA 5263/2011 before this Court. This Court by judgment dated 12.3.2014, had allowed the appeal and set aside the judgment and 5 award of the Tribunal in so far as it related to not awarding compensation towards medical expenses incurred by the claimant, and remitted the matter back to the Tribunal for reassessment of medical bills after affording reasonable opportunity to adduce evidence of the doctor. Further, the Tribunal was directed to consider all the material evidence available on record and pass appropriate orders in accordance with law. On remitting the matter to the Tribunal, the Tribunal by impugned award dated 15.12.2015, reassessed the entire evidence on record and granted compensation of Rs.4,73,000/- with interest at 6% p.a. from the date of petition till the date of realization. Being aggrieved by the same, the claimant has preferred this appeal seeking enhancement of compensation.
3. The learned counsel for the appellant- claimant has raised the following contentions: 6
Firstly, the claimant had sustained grievous injuries in a road traffic accident occurred on 17.2.2009. He was treated as inpatient at Panacea Hospital, Bangalore from 17.2.2009 to 21.2.2009.
During the course of treatment, X-rays were taken and multiple fracture injuries were confirmed and claimant underwent two surgeries. Again, he was admitted to the hospital from 12.3.2009 to 15.3.2009 and again from 13.6.2009 to 14.6.2009. Therefore, he contended that the compensation of Rs.60,000/- awarded by the Tribunal under the head "pain and sufferings" is very meager.
Secondly, as per the evidence of PW-2, Dr. Aruna H. S., the claimant has suffered disability of 52% to upper limb and whole body disability of 17%. Even after surgeries, the claimant complains of pain. Therefore, the Tribunal is not justified in granting a 7 meager compensation of Rs.50,000/- towards "loss of amenities".
Thirdly, at the time of accident, the appellant was earning Rs.27,000/- per month. In his evidence, he has specifically stated that even after the surgeries, he has not attended the office for a period of three months. Yet the Tribunal has awarded compensation as merely as Rs.15,000/- towards "loss of income during laid up period".
Fourthly, PW-3, Dr. Ravi Ramachandra in his evidence has stated the claimant requires treatment of extensor tendon, release/tendon, reconstruction /tendon lengthening of the right middle finger and also he needs flap debulking by surgical excision of subcutaneous fat/liposuction. Inspite of the treatment there are chances of re-accumulation of fat and the deformity of the right middle finger cannot be corrected completely. After the surgical management, the claimant needs repeated physiotherapy consultation and in the 8 event, if re-accumulation of fat, patient needs repeated debulking procedure. The cost for the said procedure would be around Rs.1,50,000/- to Rs.2,00,000/-. But the Tribunal is not justified in granting Rs.75,000/- towards "future medical expenses".
Fifthly, even though the claimant was treated as inpatient for 15 days on three different occasions, the Tribunal is not justified in granting only Rs.15,000/- towards "food, conveyance, nourishment and attendant charges".
With this, the learned counsel for the appellant prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
4. Per contra, the learned counsel for the Insurance Company has raised the following counter contentions:
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Firstly, the Tribunal has assessed the evidence of the doctor and has rightly awarded compensation of Rs.6,000/- under the category of "pain and sufferings".
Secondly, the claimant in his testimony has stated that he has continued in the same job and there is no discomforts or disabilities in his life. Therefore, compensation of Rs.50,000/- awarded by the Tribunal under the category of "loss of amenities" is more than just and reasonable.
Thirdly, PW-3, Dr. Ravi Ramachandra, has stated that there are chances of re-accumulation of fat and the deformity of the right of middle finger. Therefore, the Tribunal has rightly awarded Rs.75,000/- under the category of "future medical expenses".
Fourthly, the Tribunal considering that the claimant was treated as inpatient for 15 days has rightly awarded compensation of Rs.15,000/- under the category of "conveyance, food, nourishment and attendant charges".10
With this, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties, and perused the records.
6. It is not in dispute that the claimant had sustained grievous injuries in a road traffic accident occurred on 17.2.2009. As per wound certificate, Ex.P- 7, the claimant has sustained following injuries:
1. Avulsions laceration over dorsum of right hand extending to fore arm for 30*12cms with loss of skin exposing 2nd & 3rd metacarpals, inter carpal and wrist joint.
2. All extensor tendons except adductor pollisis longus and extensior pollisis brevis were avulsed lacerated and ragged, and highly contaminated.
3. Extensor digitorium tendons proxima part were badly crushed and ragged.
4. dorsum of radius and the exposed and acerated wound offending vehicle er the 1st were space about 5*2*1cms 11 x-ray-240 dated 17.02.2009 shows fracture styloid process ulna.
5. abrasions + left and right knee, base of left great toe bright red in colour
7. The claimant was treated as inpatient for a period of 15 days on three different occasions and underwent three surgeries. The claimant in his testimony has stated that he is experiencing pain even after the surgeries. Even the evidence of the doctor also reveals that even after the surgeries, the claimant will be suffering from pain. PW-2, Dr. Arun. H.S. in his evidence has stated that he examined the claimant on 25.3.2015 and found the following deformities:
1. He has pain in his right hand on lifting more than one kg weight.
2. He does not have sensation over the flap area.
3. He has difficulty to clean his face and eat food from his right hand.
4. He has difficulty to button and un button shirts and tie nor dhoti.
5. He has slight difficulty to put shirt and kurtha. 12
6. He has difficulty to write.
7. He has difficulty to assist in Indian ablution
8. He can touch his nose.
9. He has restriction of wrist DE-PF rand by 60 deg and abd- adducation restriction by 30 deg.
10. He cannot lift the objects with right hand
11. Power of wrist is grade 3.
12. His middle finger of right hand cannot be flexed
8. Considering the nature of injuries and amount of discomfort and unhappiness, he has to undergo in his life, this Court enhances the compensation from Rs.60,000/- to Rs.80,000/- under the category of "pain and sufferings" and from Rs.50,000/- to Rs.1,00,000/- under the category of "loss of amenities".
9. The claimant in his evidence has stated that till today he cannot attend to his job, which resulted in loss of earning and has put him to great financial hardship. Considering that the claimant has not 13 attended the office for three months, the compensation under the category of "loss of income during laid up period" is enhanced from Rs.15,000/- to Rs.75,000/-.
10. PW-3, Dr.Ravi Ramachandra, in his evidence has stated as follows:
"I further submit that, the patient namely Manjunathswamy requires treatment of extensor tendon release/tendon reconstruction/tendon lengthening of the right middle finger and also he needs flap debulking by surgical excision of subcutaneous fat/liposuction. In spite of the treatment there are chances of re-accumulation of fat and the deformity of the right middle finger cannot be corrected completely. After the surgical management the patient needs repeated Physiotherapy consultation. In the event if re- accumulation of fat patient needs repeated debulking procedure.
The cost of the present procedure referred to above would be around Rs.1.5 Lakhs to Rs.2.00 Lakhs, In the event of re-accumulation of fat it may 14 incurred further expenses depending on the procedures to be done."
Considering the same, the Tribunal is not justified in granting a meager compensation of Rs.75,000/- under the category of "future medical expenses". Therefore, compensation under the said category is enhanced from Rs.75,000/- to Rs.1,50,000/-.
11. For the reasons stated above, this appeal is partly allowed. The impugned award dated 15.12.2015, stands modified as under:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
Medical expenses 2,58,000 2,58,000
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 15,000 75,000
laid up period
Loss of amenities 50,000 1,00,000
Pain and sufferings 60,000 80,000
Future Medical expenses 75,000 1,50,000
Total 4,73,000 6,78,000
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12. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the appellant by the learned Tribunal after verifying his identity.
Sd/-
JUDGE SBS/DM