Karnataka High Court
Sri H R Prakash vs Prasad on 15 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.2049 OF 2013 (MV)
BETWEEN:
SRI. H R PRAKASH
S/O RUDRASHETTY
AGED ABOUT 50 YEARS
D.NO.324, 13TH CROSS
J P NAGAR, I STAGE
MYSURU-570 001.
... APPELLANT
(BY SRI. A G SRIDHAR, ADVOCATE)
(PHYSICAL HEARING)
AND:
1. PRASAD
S/O VISHWANATHA MODALIYAR
AGED ABOUT 30 YEARS
DRIVER, NO.629, 4TH CROSS
2ND MAIN, 'C' BLOCK
J P NAGAR
MYSURU-570 001.
2. A S MANJUNATHA
S/O SRIKANTA SHASTRY
AGED ABOUT 33 YEARS
NO. 629, 4TH CROSS
2ND MAIN 'C' BLOCK
J P NAGAR
MYSURU-570 001.
3. THE NATIONAL INSURANCE COMPANY LTD.,
PRESTIGE COMPLEX
RAMASWAMY CIRCLE,
2
MYSURU
REPRESENTED BY ITS MANAGER
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADVOCATE FOR R3,
(PHYSICAL HEARING)
VIDE ORDER DATED 26.06.2015 NOTICE TO R1 AND 2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.08.2012 PASSED IN MVC
NO.178/2005 ON THE FILE OF THE JUDGE, COURT OF SMALL
CAUSES, MACT, MYSURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant/claimant and learned counsel for Respondent No.3/Insured.
2. Notice to Respondent No.1-driver and Respondent No.2-owner is dispensed with as the insurer has admitted the coverage.
3. This is second round of appeal before this Court. In the earlier occasion, in terms of order dated 20th July 2011 in MFA No.8626/2006 (MV), this Court has allowed the said appeal and remanded the matter to the Tribunal for fresh consideration as this Court noticed that the compensation awarded by the 3 Tribunal was inadequate and Tribunal has not awarded compensation under various heads under which the claimant was entitled to compensation. In the first instance, the Tribunal had awarded a compensation of Rs.1,66,499/- along with 6% interest. After the remand, the Court has awarded a compensation of Rs.2,85,000/- along with 6% interest. The compensation awarded after the remand is as under:
Compensation under different Heads Amount in Rs.
1. Medical Expenses 2,26,000/-
2. Pain, injuries and sufferings 25,000/-
3. Loss of earnings during the period of 24,000/-
treatment and rest
4. Conveyance and nourishment and 10,000/-
attendant charges
Total 2,85,000/-
4. Out of Rs.2,85,000/- awarded by the Tribunal,
Rs.2,26,000/- is the component under the head of medical expenses. The accident is not in dispute and the claimant has sustained injuries is also not in dispute. 4
5. The medical record would reveal that the claimant has sustained the following injuries:
"18A. Laprotomy and Adhesiolysis and b) Large Incisional Hernia-Inlay proceed Meshplasty on 17.05.2011 and discharged on 19.05.2011. He further deposed that the petitioner was reviewed last on 03.10.2011 and he is doing fine and petitioner has no permanent disability. He produced 2 case sheets of the petitioner, which are marked as Exts.58 and 59."
6. It is also forthcoming from the record that the claimant was admitted on 23.08.2005 and underwent surgery on the same day and he was discharged on 30.08.2005. Claimant again underwent surgery in the year 2011 for the same injury. He was admitted on 17.05.2011 and discharged on 19.05.2011. In all he was inpatient for 55 days. The records would indicate that in the year 2011, the claimant underwent Laprotomy and Adhesiolysis and Large Incisional Hernia.
7. The doctor has been examined to prove the surgery underwent by the claimant. The doctor has not assessed any functional disability as far as earning is concerned. The learned advocate for the appellant would submit that merely because the doctor has not assessed any permanent disability does not 5 mean that the claimant has not sustained grievous injury or he is not facing any difficulty. The lever is an important organ. The accident resulted in damage to the lever. The claimant underwent surgery twice for the same surgery and second surgery was conducted after the span of six years. This fact itself would reveal that the claimant did not recover fully of the first surgery and it would also indicate that the injury is grievous.
8. Claimant was a businessman at the time of accident. The doctor has not given any evidence as to the functional disability. Probably this has weighed heavily in the mind of the Tribunal while awarding compensation. Thus, a sum of Rs.25,000/- is awarded under the head of pain and suffering and Rs.24,000/- is awarded under head of loss of earnings during the laid up period and Rs.10,000/- is awarded under the head of conveyance and nourishment charges. The award on the face of it appears to be extremely conservative. It is borne out by the records that the claimant was inpatient for a total period of 55 days.
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9. Mr.Ravish Benni, learned counsel for the insurer would vehemently oppose the claim for compensation. He submits that the matter was remanded by this Court. After remand, by considering the records, the Tribunal has awarded just and fair compensation. Since there is no functional disability as held by the Tribunal, there is no need for enhancement of compensation. The compensation of Rs.2,85,000/- is more than what he deserves, is the submission.
10. The Tribunal has assessed the notional income at Rs.6,000/- p.m., and awarded compensation of Rs.24,000/- taking four months as laid-up period. The medical records would indicate that the claimant was inpatient for 55 days. It cannot be said that even after the discharge, the claimant was able to resume his work immediately after discharge and lead a normal life when the claimant has suffered injury to the vital parts of the body. The discharge would be followed by adequate rest period. Under the circumstances, this Court is of the view that six months to be taken as laid-up period. Compensation under the head of loss of earning during the laid up period would be Rs.36,000/- as against Rs.24,000/- awarded by the Tribunal. Again looking into the injuries and surgery 7 undergone by the claimant and number of days he has spent in the hospital as inpatient, this Court would deem it appropriate to award a sum of Rs.30,000/- as against a sum of Rs.10,000/- awarded towards conveyance, nourishment and attendant charges. The evidence would also indicate that mesh has been inserted in the abdomen for prevention of regression of hernia. The claimant will have to carry this mesh for the rest of his life. It is noticed that the Tribunal has not awarded any compensation under the head of loss of amenities. Since there is a serious damage to the lever and the claimant has undergone two surgeries and a mesh is inserted in his abdomen, compensation of Rs.75,000/- is awarded under the head of loss of amenities.
Amount Amount
Compensation under in Rs. in Rs.
different Heads (Before the (Awarded by
Tribunal) this Court)
1. Medical Expenses 2,26,000/- 2,26,000/-
2. Pain, injuries and 25,000/- 25,000/-
sufferings
3. Loss of earnings during the 24,000/- 36,000/-
period of treatment and rest
4. Conveyance and 10,000/- 30,000/-
nourishment and
attendant charges
5. Loss of Amenities - 75,000/-
Total 2,85,000/- 3,92,000/-
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11. Accordingly, I pass the following:
ORDER
i) Appeal is allowed in part.
ii) The Judgment and Award of the Tribunal in MVC No.178/2005 is modified.
iii) The appellant-claimant is entitled to enhanced compensation of Rs.1,07,000/-
(Rs.3,92,000/- - Rs.2,85,000/-). The enhanced compensation shall carry interest at the rate of 6% p.a., from the date of petition till realization.
iv) The Insurance Company is directed to pay entire compensation along with interest within a period of eight weeks from the date of receipt of copy of this Judgment.
v) Amount in deposit, if any, be transmitted to the Tribunal.
Sd/-
JUDGE bnv