Karnataka High Court
Premavathi Shetty vs Sowmya Chatra on 18 February, 2016
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2016
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
M.F.A.No. 6780 of 2014 (MV)
Between:
Premavathi Shetty,
Aged about 42 years,
W/o. Vittal Shetty,
Since appellant is not in conscious and
Bedridden due to accidental injuries
She is rep. by her husband/guardian
Vittal Shetty, aged about 49 years,
S/o. Late Raghurama Shetty,
R/o. Aroor Village, Chekady Post,
Udupi Taluk.
....Appellant
(By Sri. H. Pavana Chandra Shetty, Advocate)
And:
1. Sowmya Chatra,
Age: Major,
W/o. Sunil Chatra,
R/o. Sri. Durgamba Main Road,
Kundapura, Udupi District-576 201.
2. The Oriental Insurance Co. Ltd.,
Divisional Office, Vishnu Prakash,
2
Court Road, Udupi-576 201.
Rep. by its Divisional Manager.
....Respondents
(By Sri. A.N. Krishna Swamy, Advocate for R2;
Notice to R1 dispensed with v/o. dated 05/08/2015)
********
This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated:22/07/2014, passed in MVC
No.872/2013, on the file of the Principal Senior Civil Judge
and Additional Motor Accident Claims Tribunal, Udupi,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This M.F.A. coming on for Admission this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This is a claimant's appeal for enhancement of compensation against the impugned judgment and award dated 22/07/2014, passed in MVC No.872/2013, by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi, (hereinafter referred to as ' Tribunal' for short), on the ground that a sum of `8,74,000/- awarded under different heads with interest at 8% p.a., from the date of petition till the date of deposit, as against the claim 3 of `65,70,000/-, on account of the injuries sustained by her in the road traffic accident is inadequate.
2. In brief, the facts of the case are:
The appellant claims to be aged about 41 years at the time of the accident. She was hale and healthy prior to the accident and working as coolie. That on 14.5.2013 at about 14.30 hours, she was walking on the left side mud portion of the Basrur-Ampar Road, when she reached near Mullugudde, Golimara bus stand, at that time, the driver of the bus bearing Reg.No.KA.20.B.7583 came from Basrur side towards Amparu side in a rash and negligent manner and lost control over it and came to the extreme left side of the road and dashed against the appellant and ran over on her left hand. Due to which, she sustained grievous injuries. Immediately, she was shifted to Chinmayi hospital, Kundapura and then shifted to KMC hospital after the initial treatment, she was shifted to A.J.Hospital Mangalore, her left upper limb below arm 4 was amputated and underwent skin grafting and thereafter, on the advise of the Doctor, she has taken bed rest and follow up treatment.
3. It is the further case of the appellant that, she spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, she has suffered permanent disability. The Doctor has assessed the disability at 85% to her left upper limb and 100% towards functional disability. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.
4. The said claim petition had come up for consideration before the Tribunal. The Tribunal after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `8,74,000/- as 5 compensation under different heads with interest at 8% p.a., from the date of petition till the date of deposit.
5. Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal.
6. We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.
7. The submission of the learned counsel for the appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation under all the heads and in not awarding any compensation towards future medical expenses and for purchase of artificial limb including incidental expenses and what is awarded is inadequate and it is liable to be enhanced reasonably. To substantiate the said submission, he submitted that, appellant is aged about 41 years, coolie and homemaker and hale and healthy prior to the accident and in the accident, she has sustained grievous injuries, for that, 6 she has taken treatment for 65 days, underwent surgery for amputation of left upper limb and also underwent skin grafting, Doctor, has assessed 85% of permanent disability and 100% functional disability and thereafter, she has taken bed rest and follow up treatment for more than 6 months. During the said period, she underwent lot of pain and agony, spent considerable amount towards conveyance and other expenses. Discomforts and unhappiness persists through out her life and it would affect her earning capacity and she has to depend upon artificial limb and for that she may require considerable amount and she has to take future treatment. Further, he submits that, the Tribunal has erred in assessing the income of the deceased at `5,000/- per month and the same is liable to be re- assessed reasonably on the ground that, the accident is of the year 2013 and she is working as coolie. Further, he submits that, the rate of interest awarded by the Tribunal at 8% p.a. is on the lower side and the same is 7 liable to be enhanced in the light of the judgment of the Apex Court and this Court atleast between 9 to 10%. Therefore, he submitted that the impugned judgment and award is liable to be modified.
8. Per contra, learned counsel Sri. A.N.Krishna Swamy appearing for insurer, inter- alia, contended and submitted that, the Tribunal, after due appreciation of the oral and documentary evidence available on file has justified in awarding reasonable compensation under all the heads and therefore, it does not call for interference.
9. After hearing the learned counsel appearing for both the parties and after perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the quantum of
compensation awarded by the
Tribunal is just and reasonable?
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10. In the accident that occurred on 14.5.2013, appellant has sustained sutured wound over her right lower face, right upper lip, fracture of clavicle in the right shoulders, fracture of scapula, fracture of 3rd,6th and 7th ribs, total crush amputation of left upper limb at the level of middle and lower one third of arm exposing the fractured humerous, crushed muscles, soft tissue and skin, fracture of right zygomatic arch, fracture of alteral wall of right orbit, right maxillary sinus, fracture of middle wall of left maxillary sinus and sub arachnoid haemorrhage. She has underwent amputation to her left upper limb and also skin grafting. On account of the said injuries, she took treatment as inpatient for 65 days. To prove the same, she examined the Doctor as PW2, who after clinical examination of the appellant, has assessed the disability at 85% and functional disability at 100% and the Tribunal has justified in assessing the disability at 50% and we accept the same. The Tribunal has assessed the income of the appellant 9 at `5,000/- per month, which is on the lower side and it needs to be enhanced. It is the case of the appellant that, appellant was aged about 41 years, coolie by profession and earning `12,000/- per month. But she has not produced any cogent evidence to prove the same. Having regard to the age, occupation and the year of accident, if we take the income of the appellant at `8,500/- per month instead of `5,000/- per month as taken by the Tribunal, it would meet the ends of justice and accordingly, it is taken.
11. As rightly pointed out by the learned counsel appearing for appellant, the Tribunal has erred in not awarding reasonable compensation towards pain and sufferings, loss of income during treatment period, loss of amenities, loss of future earnings and in not awarding any compensation towards purchase of artificial limb and therefore, it needs to be awarded reasonably. It is not in dispute that, on account of the injuries sustained by the appellant, she has taken 10 treatment as inpatient for 65 days, underwent amputation to her left upper limb and also underwent skin grafting. During the period of treatment, she might have undergone pain and agony, spent reasonable amount towards conveyance and other incidental expenses and sustained financial loss, as she could not have attended his work regularly. Further, in view of amputation of left upper limb, she sustained permanent disability, and we accept the permanent disability assessed by the Tribunal at 50% to the whole body. It is permanent in nature and she has to suffer this disability through out her life and it would affect her working capacity she being a coolie by profession and she has lost her amenities and enjoyment in future life. As there was an amputation to her left upper limb, appellant has to replace the artificial limb once in three years and for that she may require some amount. The proper multiplier applicable would be '14' as rightly adopted by the Tribunal since the 11 appellant was aged about 41 years as on the date of the accident in the light of the judgment of the Apex Court in Sarla Verma's case instead of '13' adopted by the Tribunal. Taking all these aspects into consideration, we award a sum of `2,00,000/- towards injury, pain and suffering as against `1,65,000/-, `50,000/- towards conveyance, nourishing food and attendant charges as against `39,000/-, `51,000/- towards loss of income during the period of treatment for six months at the rate of `8,500/- per month as against `40,000/-; `1,50,000/- towards loss of amenities, discomforts and unhappiness as against `20,000/-, `7,14,000/- (`8,500 x 12 x 14 x 50/100) towards loss of future earnings as against `3,90,000/-, `50,000/- towards future medical expenses including purchase of artificial limb.
12. However, the Tribunal has justified in awarding a sum of `1,95,000/- towards medical expenses, after assessing oral and documentary 12 evidence produced by the appellant, and therefore, it does not call for interference.
In all, the appellant is entitled to the total compensation of `10,08,410/- instead of `4,68,210/- and the break- up is as follows:
Towards pain and sufferings ` 2,00,000/- Towards medical expenses ` 1,95,000/- Towards conveyance, nourishing food ` 50,000/- and attendant charges Towards loss of income during the ` 51,000/- period of treatment Towards loss of amenities ` 1,50,000/- Towards loss of future earnings ` 7,14,000/- Towards future medical expenses, ` 50,000/- including purchase of artificial limb Total `14,10,000/-
13. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellant, 8% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.
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There would be an enhancement of `5,36,000/- with interest at 9% p.a., from the date of petition till its realization.
14. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 22/07/2014, passed in MVC No.872/2013, by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi, stands modified, awarding a sum of `5,36,000/- with interest at 9% p.a., from the date of petition till its realization in addition to the compensation awarded by the Tribunal.
The second respondent-Insurer is directed to deposit the enhanced compensation of `5,36,000/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment.
Immediately on such deposit by the Insurer, out of the enhanced compensation of `5,36,000/-, a sum of 14 `4,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.
The remaining sum of `1,36,000/- with proportionate interest shall be released in favour of the appellant, immediately.
Draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE tsn*