Karnataka High Court
T S Cariyappa vs Cholamandalam Ms General Ins. Co. Ltd on 28 August, 2013
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
1
THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST, 2013
PRESENT
HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
M.F.A. NO.8132/2009 (MVC)
C/W
M.F.A. NO.7561/2008 (MVC)
IN M.F.A. NO.8132/2009 (MVC)
BETWEEN
SHRI T S CARIYAPPA
S/O SHIR SIDDA
AGED ABOUT 27 YRS
NO.733, 2ND FLOOR, 6TH MAIN
RAJAJINAGAR A BLOCK, BANGALORE 560010
... APPELLANT
(BY SRI NARENDRA GOWDA, ADV.)
AND
1. CHOLAMANDALAM MS GENERAL INS. CO. LTD
REGIONA LOFFICE, NO.9/1
HALASOOR ROAD, BANGALORE
REP. BY ITS MANAGER
2. SHRI SANDEEP
NO.601, 3RD MAIN ROAD
SADASHIVANAGAR, BANGALORE
... RESPONDENTS
(BY SRI O MAHESH, ADV. FOR R1
R2 SERVED)
2
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:1-03-2008 PASSED IN
MVC NO.2398/2006 ON THE FILE OF JUDGE & MEMBER
MACT BANGALORE PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.7561/2008 (MVC)
BETWEEN
CHOLAMANDALAM MS GENERAL INSURANCE COMPANY
LIMITED`
REGIONAL OFFICE NO 9/1, ULSOOR ROAD
BANGALORE-42
BY IT'S SENIOR MANAGER
... APPELLANT
(BY SRI. O MAHESH, ADV.)
AND
1. T S CARIYAPPA
AGED 27 YEARS
S/O SHRI SIDDA
NO 733, 2ND FLOOR, 6TH MAIN
RAJAJINAGAR, A BLOCK
BANGALORE-560010
2. SANDEEP
MAJOR
S/O NOT DISCLOSED
NO 601, 3RD MAIN ROAD
UPPER PALACE ROAD, SADHASHIVNAGAR
BANGALORE 560080
... RESPONDENTS
(BY SRI NARENDRA GOWDA, ADV. FOR R1
R2 SERVED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 1.3.2008 PASSED IN
MVC NO. 2398/2006 ON THE FILE OF THE JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT, METROPOLITIAN
3
AREA, BANGALORE, (SCCH.NO.9), AWARDING A
COMPENSATION OF RS. 25,63,247/- WITH INTEREST @ 6%
P.A EXCEPT ON MEDICAL EXPENSES FROM THE DATE OF
PETITION TILL DEPOSIT.
***
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, MOHAN .M. SHANTANAGOUDAR DELIVERED THE
FOLLOWING:-
JUDGMENT
MFA 8132/2009 is filed by the claimant praying enhancement of compensation.
MFA 7561/2008 is filed by the insurer praying for reduction of compensation.
2. In the accident that occurred on 26.12.2005, the claimant sustained burst fracture at D-9 level. He underwent operations in Columbia Asia Hospital and thereafter, he was treated at Hosmat Hospital. He underwent physiotherapy at Hosmat Hospital. He also underwent Stem Cell Therapy at Chennai for the injury. He is unable to walk and perform his daily activities of living as a 4 normal human being. He has grade 0/5 power in the legs. The Tribunal below has awarded total compensation of Rs.25,63,247/- with interest at the rate of 6% p.a.
3. PW-2 doctor, who is a Neuro and Spine Surgeon of Columbia Asia Hospital has deposed supporting the case of the claimant. The evidence of the doctor makes it clear that claimant was admitted to Columbia Asia Hospital from 27.12.2005 to 10.1.2006 as inpatient and underwent clinical examination, he had paralysis and Neuro Surgery was needed on D-8 & 9 dislocation. He underwent decompression and stabilization of D-8 & 9 on 29.12.2005. He was discharged with advice for further follow up at Hosmat Hospital for physiotherapy and he was again admitted as inpatient from 10.1.2006 to 13.5.2006 at Hosmat Hospital and took treatment 5 regularly. He underwent Stem Cell Therapy at Chennai 2 months prior to the deposition of PW-2. On 17.10.2007 the claimant was treated at Mahaveer Jain Hospital for further check up. At that time, the claimant was complaining pain around his umbilicus radiating from the spine. He was not able to either move his legs or control urine. On examination, doctor has opined that claimant has grade 0/5 power in the legs, he is unable to walk and do daily activities of living. Doctor has assessed disability of the claimant to the extent of 100% to the whole body. All the medical records produced by the claimant before the Tribunal below are marked as exhibits.
4. The evidence of the claimant is that except his spinal chord, all the other parts are normal, but the fact remains that the spinal chord of the claimant is injured to the larger extent. This 6 Court cannot loose sight of the fact that the patient who has taken prolonged treatment with regard to serious spinal chord injury may have to suffer all through his life.
5. Though, we find that just compensation is awarded towards 'loss of permanent disability', 'medical expenses', loss of income during laid up period, we find that lesser compensation is awarded under the head 'pain and sufferings', 'attendant charges', 'loss of amenities' and 'future medical expenses'. The claimant was inpatient for about 6 months as rightly observed by the Tribunal below. Even medical records disclose that the victim was inpatient for about 6 months and had taken treatment even thereafter. We cannot also lose sight of the fact that the claimant was required to take future medical assistance all through his life. 7
6. In this view of the matter, the claimant must have suffered lot of pain and agony during the course of treatment and even thereafter. Therefore, the claimant would be entitled for a sum of Rs.1,00,000/- towards 'pain and sufferings' and Rs.1,00,000/- towards 'loss of amenities'. The claimant also needs attendant's help all through his life. He may need extra amount for travelling as he may not be able to travel in autorickshaw or bus as a normal human being. Therefore, we propose to award Rs.50,000/- towards 'future conveyance and attendant charges'. In addition to the same, the claimant is entitled to a sum of Rs.50,000/- towards 'future medical expenses'.
7. Thus, the claimant is entitled to an additional compensation of Rs.1,90,000/-.
8. In view of the above, the following order is passed:-
8
ORDER
a) The compensation of * Rs.25,63,247/-
awarded by the Tribunal is enhanced to * Rs.27,53,247/-.
b) The enhanced compensation shall carry interest at the rate of 6% p.a. as ordered by the Tribunal.
c) The enhanced compensation shall be released in favour of the claimant. Accordingly, MFA 8132/2009 filed by the claimant is allowed in part and MFA 7561/2008 filed by the insurer stands dismissed.
SD/-
JUDGE SD/-
JUDGE DM * Correction carried out vide court order dated 18.09.2013 9 MSGJ & BSGJ: MFA.8132/2009 C/W.7561/2008(MV) 18-9-2013 ORDER It is clarified that the claimants are not entitled to interest on the enhanced compensation in respect of the delayed period of about 490 days, i.e., delay in filing the cross-objections.
It is made clear that the amount in deposit before this Court shall be transmitted to the Tribunal below.
It is also clarified that in Clause(a) of the operative portion of the judgment dated 20.8.2013, the amounts awarded by the Tribunal as well as by this Court are inter-changed, which need to be rectified and shall be read as under:
" The compensation of Rs.25,63,247/- awarded by the Tribunal is enhanced to Rs.27,53,247/-." 10
Office is directed to carryout necessary correction in the original judgment dated 20.8.2013 and issue fresh certified copy.
SD/-
JUDGE SD/-
JUDGE *ck/-