Karnataka High Court
Sri Avinash R vs The Managing Director on 13 November, 2017
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13th DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
MFA No.3781/2010 (MV)
BETWEEN
SRI AVINASH R
S/O RAJU
AGE 23 YEARS
OCC: PEON IN JAYADEVA HOSPITAL
R/O NO.65, BASAVANAPURA
BANNERUGHATTA ROAD
BANGALORE
... APPELLANT
(BY SRI SURESH M LATUR, ADVOCATE)
AND
1. THE MANAGING DIRECTOR
BMTC, K H ROAD,
SHANTHINAGAR
BANGALORE - 27
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DO.NO.4, BASAVANAGUDI,
BANGALORE
... RESPONDENTS
(BY SRI S.SRISHAILA, ADV. FOR R2
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:21.07.2009 PASSED IN
MVC NO.7375/2007 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
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PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of learned counsel appearing for the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 18.08.2007 due to rash and negligent driving of the bus bearing registration No.KA-01-F-546 by its driver and liability of the insurer of the offending vehicle, the only point remains for my consideration in the appeal is:
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"Whether the compensation of Rs.3,88,689/- awarded by the Tribunal is just and reasonable or does it call for enhancement?"
5. As per Ex.P-5, wound certificate and Ex.P-6 to P-11 discharge summaries, the claimant had sustained the following injuries:
1) Fracture of both superior and inferior pubic rami
2) Lacerated wound over left lateral aspect of left thigh
3) Fracture of right ankle traumatic structure urethra (past) PW-2 Dr.Ramesh has stated in his evidence that he has personally treated the claimant for superior and inferior pubic rami fracture and bimalleolar fracture right ankle sustained by him and claimant underwent open reduction and internal fixation malleolar screws for malleolar fracture. Pelvic fracture was treated conservatively and claimant was discharged on 27.09.2007 and re-admitted on 04.02.2008 for celluterts of right thigh and was discharged on 11.02.2008. PW-3 Dr.Kamath has stated that the claimant underwent supra pubic 4 cystostomy for rapture urethra and fracture of pelvis at Victoria Hospital. He was also admitted at the Institute of Nephro Neurology for infection in the right Kidney. He was treated and discharged on 23.10.2007 subsequently he was evaluated for stricture of urethra which had resulted as a consequence of previous urethral injury. X-
ray and endoscopy at that time revealed compete blockage of the urinary passage in bulbar region and diagnosis of bulbomembranous stricture urethra was done. He was admitted for surgery on 22.11.2007 and on 26.11.2007 he underwent surgery to remove this stricture and establishment of continuity in the urinary passage and was discharged on 5.12.2007. Again he was admitted on 9.5.200/ on the compliant of narrowing of urinary strain and on 12.5.200/8 he was subjected to endoscopy of urinary passage and found to have narrowing at the sight where two ends of urinary passage were joined and endoscopy knife was used to cut the narrowing and he has been asked to keep the passage vide by passing a catheter daily by himself. 5 Then he has attended the follow-up treatment and it reveals no implement in erection quality. A Doppier study to know the blood supply to his penis on 24.12.2008 reveals decreased blood supply to the penis which is the cause for his decreased erections and due to the decreased blood supply is a consequence of injury, he sustained and its sequence. It is opinion of the doctor that due to this disabilities, his marital status has been effected and he has to take treatment through out his life.
6. Considering the nature of injuries sustained by the claimant, a sum of Rs.1,50,000/- is awarded towards 'pain and suffering' as against Rs.1,00,000/- awarded by the Tribunal.
7. The claimant has produced medical bills for Rs.38,960/- as could be seen from the medical bills produced at Exs.P15 and 22. Therefore, a sum of Rs.40,000/- awarded by the Tribunal towards 'medical expenses' is just and proper and there is no scope for enhancement under this head.
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8. The claimant claims to have been getting a salary of Rs.3,500/- by working as a scavenger with Detect Well and Security Services and has produced identity card issued by the said services which was marked as Ex.P-14. Considering his age and year of accident, there is no impediment to take his income as Rs.3,500/- p.m. as claimed by him. Nature of injuries sustained by the claimant would suggest that he must have been under rest and treatment for a period of 8 months, and thereafter a sum of Rs.28,000/- is awarded under the head loss of income during the period of treatment as against Rs.24,000/- awarded by the Tribunal.
9. Regarding awarding of compensation towards loss of future income, learned counsel for the claimant submits the claimant after sustaining injuries could not continue his employment and he discontinued his employment and therefore prays for awarding compensation by considering the disability caused to the whole body at 100%.
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10. Sri S.Srishaila, learned counsel appearing for the insurer submits that PW-2, the doctor has stated that claimant has suffered disability of 20% to the whole body. A Nephrologist examined as PW-3 has not stated any thing about injuries caused to urethra. PW-2 and PW-3 have stated that the claimant has suffered disability of 30% to the right lower limb on account of injuries sustained to ankle and 10% to pelvic bone and 22% of disability to the whole body. Therefore there is no impediment to take disability caused to the whole body as 22% as against 20% taken by the Tribunal. The income of the claimant is assessed at Rs.3,500/-p.m., and the multiplier applicable to the age group of the claimant is 18. Therefore, the 'loss of future income' works out to Rs.1,66,320/- (3500 x 12 x 18 x 22/100) and it is awarded as against Rs.1,29,600/- awarded by the Tribunal.
11. Considering the nature of injuries sustained and the disability stated by the doctors and the amount of unhappiness and discomfort the claimant has to undergo in his future life, a sum of Rs.1,00,000/- is awarded 8 towards 'loss of amenities including frustration, future unhappiness and loss of marriage prospects', as against Rs.65,000/- awarded by the Tribunal under this head.
12. A sum of Rs.25,000/- is awarded towards 'future medical expenses' as against Rs.10,000/- awarded by the Tribunal.
13. Thus the compensation awarded by the Tribunal is re-assessed as under:-
HEADS Rs.
Pain and sufferings 1,50,000
Medical Expenses 40,000
Incidental expenses 40,000
Loss of income during laid 28,000
up period
Loss of future income 1,66,320
Loss of amenities
including loss of marriage 1,00,000
prospects
Future medical expenses 25,000
TOTAL 5,49,320
LESS: Compensation 3,88,600
awarded by the Tribunal
BALANCE 1,60,720
14. Accordingly, the appeal is allowed-in-part. The judgment and award dated 21.07.2009 passed by the XVI 9 Additional Judge, MACT, Bangalore in MVC No.7375/2007 stands modified. The claimant is entitled for an additional compensation of Rs.1,60,720/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
15. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. The same is ordered to be released in favour of the claimant immediately after the deposit.
No order as to costs.
Sd/-
JUDGE Snb/