Karnataka High Court
M/S Oriental Insurance Company Ltd vs K R Nagesh on 16 October, 2012
Bench: N.K.Patil, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF OCTOBER, 2012
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S.INDRAKALA
M.F.A.NO. 8862 OF 2007 (MV)
Between:
M/s. Oriental Insurance Company Limited,
Jamba Bala Complex,
No.29-B, Arcot Road,
Vellore-632 004.
Tamilnadu.
Through its Regional Office,
Leo Shopping Complex,
44-45, Residency Road Cross,
Bangalore-25.
By its Regional Manager.
... Appellant
(By Shri. Rajashekar, for Shri. B.C.Seetharama Rao,
Advocate)
And:
1. K.R.Nagesh,
S/o. K.Ramappa,
Aged about 39 years,
R/o. Kammadatti Village,
Avani Hobli,
Mulbagal Taluk.
2
2. P.Rangaprasad,
Father's name not known
To the appellant,
Major,
R/o. No.154, I East Main Street,
Gandhinagar, Katpadi Taluk,
Vellore-632 004,
Tamilnadu.
... Respondents
(By Shri. N.Gopalakrishna, Advocate for R1;
R2 served)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 07/03/2007, passed in MVC
No. 77/2003, on the file of the II Additional Civil
Judge(Sr.Dn) and Additional Motor Accident Claims
Tribunal, Kolar, awarding a compensation of `10,40,000/-
with interest at 6% p.a. from the date of petition till
realisation.
This MFA coming on for Hearing, this day,
N.K. PATIL. J., delivered the following:
JUDGMENT
This appeal by the Insurance Company is directed against the judgment and award dated 7th March 2007, passed in MVC No. 77/2003, by the II Additional Civil Judge(Sr.Dn) and Additional Motor Accident Claims Tribunal, Kolar, (for short, 'Tribunal') for reduction of compensation on the ground that, the compensation of 3 `10,40,000/- with 6% interest per annum, awarded in favour of the injured claimant as against his claim for `10,00,000/-, is highly exorbitant and excessive.
2. The facts in brief are that, at about 12:15 P.M, on 25-12-2002, when the injured claimant was proceeding from Kammadatti to Tambihalli on his bicycle for taking treatment, near Nallur Cross, he met with an accident on account of rash and negligent driving by the driver of Car bearing registration No.TN- 23/F-9990. Due to the impact, the claimant fell down and sustained grievous injuries all over his body and was immediately shifted to Jalappa Hospital, where he took treatment as in-patient for a period of 16 days.
3. It is the case of the injured claimant that, he was hale and healthy prior to the date of accident, which resulted in grievous injures to the claimant and that he was working as an agriculturist and also doing sericulture and milk vending and earning a sum of more 4 than `10,000/- per month. It is the further case of the claimant that, on account of the injuries sustained, he has spent considerable amount towards conveyance, nourishing food and attendant charges apart from other incidental expenses and therefore, he has to be compensated reasonably.
4. On account of the injuries sustained, the claimant filed the claim petition before the Tribunal, seeking compensation of a sum of `10,00,000/- against the Insurer and another. The said claim petition had come up for consideration before the Tribunal on 7th March, 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `10,40,000/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation awarded by the 5 Tribunal, the Insurer is in appeal before this Court, seeking reduction of compensation.
5. We heard the learned counsel appearing for Insurer and learned counsel appearing for injured claimant, gone through the grounds urged in the memorandum of appeal carefully and perused the impugned judgment and award passed by Tribunal.
6. Learned counsel appearing for Insurer vehemently submits that the Tribunal has grossly erred in awarding exorbitant compensation towards all the heads, particularly pain and sufferings and loss of future income, without assigning any valid and cogent reasons. Further, he submits that the Tribunal has also committed an error in assessing 100% disability to whole body, when the Doctor himself has assessed 20% disability to spleen, 40% disability to kidney, 15% for repair of disaphragmatic, 8% towards scar disability and 33% towards whole body disability. He submits that at best, the Tribunal ought to have assessed the 6 whole body disability at 50%, having regard to the nature of injuries sustained instead of assessing the whole body disability at 100%. Therefore, he submits that the compensation awarded towards injury, pain and sufferings and loss of future income is liable to be reduced substantially by modifying the impugned judgment and award passed by Tribunal.
7. As against this, learned counsel appearing for claimant, inter alia substantiates the impugned judgment and award passed by Tribunal stating that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation under all the heads. To substantiate his submission, he submits that as per the evidence of the Doctor, he has operated the claimant for removal of spleen, one kidney, repair of diaphragmatic, scar disability and assessed disability to spleen at 20%, to the kidney at 40%, to the repair of diaphragmatic at 15%, scar disability at 8% and to the 7 whole body at 33%. Further, having regard to the fact that the claimant is an agriculturist by profession and a manual worker, the removal of one kidney and spleen would come in the way and his earning capacity would be fully reduced, the Tribunal has assessed the whole body disability at 100%. The same is just and proper and it does not call for interference.
8. After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the only point that arise for our consideration in this appeal is:
Whether the quantum of compensation awarded by Tribunal is excessive and liable to be reduced?
After careful perusal of the impugned judgment and award passed by Tribunal, we are of the considered 8 view that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation of a sum of `46,000/- towards medical expenses as per the medical bills and prescriptions and `1,00,000/- towards loss of amenities, discomfort and unhappiness. Hence, interference in the same is not called for.
9. However, so far as compensation awarded towards conveyance, nourishing food and attendant charges and loss of income during treatment period is concerned, the same is on the lower side and needs to be re-determined. It is stated that the claimant was hospitalized for a period of total 16 days. During this period, he would have spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. However, the Tribunal has rightly assessed the income of the claimant at `3,000/- per month and we accept the same. Looking at the nature of injuries sustained, we presume that the 9 claimant must have taken bed rest and follow-up treatment at least for a period of six months. Accordingly, having regard to the facts and circumstances of the case, including age, avocation, nature of injuries sustained, nature and duration of treatment, etc. we award a sum of `10,000/- towards conveyance, nourishing food and attendant charges as against `4,720/- and `18,000/- towards loss of income during treatment period at the rate of `3,000/- per month for a period of six months as against `1,600/- awarded by Tribunal at the rate of `100/- per day for 16 days.
10. Further, so far as compensation awarded towards loss of future income and injury pain and sufferings is concerned, we are of the opinion that the same is on the higher side and liable to be re- determined. Admittedly, the claimant has sustained laceration over the left forehead 2.5 x 1 cm., multiple linear abrasions over left post auricular area, right 10 forearm, lateral aspect of left lumber region, on posterior aspect of left shoulder arm, left leg, left elbow, on posterior aspect and medial aspect of right foot and left little toe; injury over the anterior aspect of knee, abdomen, ultra sound shows hemo peritoneum and the claimant was operated for removal of spleen, one kidney, repaired diaphragmatic, scar disability etc. The Doctor has assessed 20% disability towards spleen, 40% towards kidney, 15% towards repair of diaphragmatic, 8% towards scar and 33% towards whole body. But, the Tribunal, without assigning valid reasons has re- assessed the whole body disability at 100% so far as his earning capacity is concerned. The same cannot be sustained. The Tribunal, at best, could have assessed the whole body disability at 60%, instead of assessing the whole body disability at 100%. Therefore, having regard to the facts and circumstances of the case, including the evidence of the Doctor, nature of injuries sustained, age and avocation, etc, we re-assess the whole body disability at 60% as against 100% assessed 11 by Tribunal. Further, we have already upheld the monthly income of `3,000/- assessed by Tribunal, as just and proper. Since the claimant was aged about 37 years as per Ex.P4, wound certificate, the proper multiplier applicable is '15' as per the decision of the Hon'ble Apex Court Sarla Verma's case (2009 ACJ 1298) as rightly adopted by Tribunal. Thus, the compensation towards loss of future income would work out to `3,24,000/- (i.e. `3,000/- x 12 x'15' x 60/100) as against `5,40,000/- awarded by Tribunal. Further, the Tribunal erred in awarding exorbitant compensation towards injury, pain and sufferings. Admittedly, the claimant has sustained the injuries as stated above and during the period of treatment, follow-up treatment and also while undergoing surgeries, the claimant must have undergone lot of unsaid pain and agony. Therefore, having regard to the nature of injuries sustained, nature and duration of treatment, etc, we award a sum of `1,50,000/- towards injury, pain and sufferings as against `3,50,000/- awarded by Tribunal. 12
11. Further, it can be seen that the Tribunal grossly erred in not awarding any compensation towards future medical expenses. Admittedly, the claimant has sustained injuries as stated above and the Doctor has assessed the disability as stated above. The claimant has undergone various operations for removal of spleen, one kidney, repair of diaphragmatic, etc. Having regard to the nature of injuries and the number of surgeries the claimant has underwent and the seriousness of the type of surgeries, we are of the view that he may have to incur future medical expenses, including conveyance, nourishing food and attendant charge during the period of future treatment. Therefore, having regard to the totality of the case on hand, including the percentage of disability assessed by Doctor to various vital organs of the body, we award a sum of `1,50,000/- towards future medical expenses.
12. Thus, the total compensation would come to `7,98,000/- as against `10,40,000/- awarded by Tribunal, with interest at 6% per annum, from the date 13 of petition till the date of realization. There would be reduction of compensation by `2,42,000/-.
13. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurance Company is allowed in part. The impugned judgment and award 7th March 2007, passed in MVC No. 77/2003, by the II Additional Civil Judge(Sr.Dn) and Additional Motor Accident Claims Tribunal, Kolar, is hereby modified, reducing the total compensation from `10,40,000/- awarded by Tribunal, to `7,98,000/- (reduction being `2,42,000/-), with interest at 6% per annum, from the date of petition till the date of realization.
The Insurance Company is directed to deposit the remaining compensation, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award.
14
The apportionment of compensation made by Tribunal gets proportionately reduced to the extent of reduction of compensation made by this Court.
The statutory amount in deposit by the Insurance Company is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*