Karnataka High Court
Shabuddin vs The Managing Director B.M.T.C on 23 July, 2012
Bench: N.K.Patil, S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JULY 2012
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.8203 OF 2007 (MV)
BETWEEN:
Shabuddin
(Syed Shabuddin),
S/o Fakruddin,
Aged 22 Years,
R/at Modi Road,
Near Water Tank,
Shivaraj Road,
Devarajeevanahlli,
BANGALORE. ... APPELLANT
(By Sri.Prakash.M.H, Adv.)
AND:
The Managing Director,
B.M.T.C, K.H.Road,
Shanthinagar,
BANGALORE - 27. ... RESPONDENT
(By Sri.D.Vijaykumar, Adv.)
*-*-*-*-*-*-*-*
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This appeal is filed under Section 173(1) of the Motor
Vehicles Act, against the Judgment and Award dated
08.01.2007 passed in MVC No.1528/2006 on the file of XIX
Additional Small Cause Judge & MACT, Bangalore (SCCH-17)
partly allowing the Claim Petition for compensation and
seeking enhancement of compensation.
This appeal coming on for Final Hearing this day,
N.K.PATIL J., delivered the following:
JUDGMENT
This appeal by the claimant is directed against the Judgment and Award dated 08.01.2007 passed in M.V.C.No.1528/2006 on the file of the XIX Additional Small Cause Judge and MACT, Bangalore (SCCH-17).
2. The Tribunal by its impugned Judgment and Award, has awarded a sum of Rs.5,14,000/- under different heads with interest at 6% p.a., from the date of the petition till realisation, as against the claim of the appellant for a sum of Rs.50,00,000/-, on account of the injuries sustained in the road traffic accident.
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3. The brief facts of the case on hand are that the appellant was aged about 21 years and working as Electrician in S.K.Electrical and hale and healthy prior to the accident. Be that as it may, at about 10.30 a.m., on 05.02.2006 he was riding his Motor Cycle bearing No.KA-04/EM-3580 and coming from Manjushree Nursing Home towards Ambedkar Medical College Road. When he reached Kavalbyrasandra Government School, a BMTC Bus bearing No.KA-01/F-1947 suddenly came from behind in a rash and negligent manner, while overtaking, dashed against the appellant and due to the impact, he was fell down and was dragged on the said road and sustained grievous injuries like fracture of tibia, fracture of pelvis, urethral rupture and his motor cycle was badly damaged. Immediately he was shifted to Manjushree Nursing Home and thereafter to Bowring Hospital. Later he was shifted to Shifa Hospital, Bangalore. He has undergone treatment for a period of 37 days as inpatient. The case of the appellant is that he has spent huge amount towards 4 medical expenses. Taking into consideration all these factors, he filed Claim Petition under Section 166 of the Motor Vehicles Act, claiming compensation. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other materials available on file, has allowed the same in part awarding a sum of Rs.60,000/- towards pain and suffering, Rs.1,35,000/- towards medical expenses, Rs.20,000/- towards conveyance, nourishment and attendant charges, Rs.2,59,000/- towards loss of future earning capacity, Rs.25,000/- towards loss of amenities and Rs.15,000/- towards loss of income during treatment period, in all awarded a sum of Rs.5,14,000/- with interest at 6% p.a., from the date of the petition till realisation. Not being satisfied with the compensation awarded by the Tribunal, the appellant has presented this appeal, for enhancement of compensation.
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4. The submission of the learned counsel appearing for the appellant at the outset is that the Tribunal has erred in awarding compensation towards loss of amenities, discomfort and unhappiness, loss of income during laid-up period, loss of future medical expenses. To substantiate his contention, he has taken us through the evidence of P.Ws.2 and 3 who have spoken about the injuries sustained by the appellant. P.W.3 has assessed the disability at 50% to the right lower limb and 20% to whole body and the same is not appreciated by the Tribunal. Therefore he submitted that the impugned Judgment and Award may be modified by awarding just and reasonable compensation.
5. Per contra, learned counsel appearing for the respondent interalia contended that the Tribunal has awarded just and reasonable compensation after due appreciation of oral and documentary evidence available on record. Further he pointed out that the Corporation also had filed an appeal in MFA No.7500/2007 against the claimant. 6 The said matter had come up for consideration on 04.10.2007. The learned Single Judge of this Court dismissed the appeal holding that no grounds are made out for interference of Judgment and Award. Therefore as the impugned Judgment by the Tribunal has been confirmed, question of enhancement as sought by the appellant cannot be sustained and this appeal filed by the appellant is also liable to be dismissed as devoid of merits confirming the Judgment and Award passed by the Tribunal.
6. After careful consideration of the submission made by the learned counsel appearing for both the parties, after perusal of the impugned Judgment and Award passed by the Tribunal and the Judgment of the learned Single Judge of this Court in MFA No.7500/2007, the only point that arise for our consideration is:
Whether the quantum of
compensation awarded by Tribunal is just
and reasonable?
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7. After careful perusal of the material available on record including the impugned Judgment and Award passed by the Tribunal, it emerges that the occurrence of the accident and the injuries sustained in the said accident are not in dispute. To establish the percentage of disability, the appellant has examined two doctors as P.Ws.2 and 3. P.W.2, who after clinical examination has given evidence stating that on re- examining the appellant, he found that there are restriction in the left hip movements, wasting of left thigh muscles above knee joint, shortening of left limb by 2 c.ms., restriction of movements of left knee and other disabilities and assessed the disability at 50% to the right lower limb and 20% to the whole body, whereas P.W.3, Dr.Shivalingaiah, Urologist working in Bowring Hospital, has stated in his evidence that the appellant was treated for rupture urethra and acute epididymo orchitis and VIU was done, proximal urethra was not visualized beyond bulbar urethra and he further stated that the appellant is coming for regular follow up treatment as outpatient for regular cathedral change once in a week. 8 Further he has stated that he has examined the claimant on 31.10.2006 regarding disability and found that he was unable to pass urine via naturalies, unable to have orgasm (sexual desire), inability to work, daily activities normally, excoriation of the skin at SPC wound site, pain and foul smelling the SPC site, pus discharge from the urethra and pain and swelling in the perennial region and assessed the disability at 85% of urology problem and 50% to whole body. He also states that the appellant is required to undergo surgery for urethral rupture, but success rate of the said surgery is only 20%. However, the Tribunal without any justification, contrary to the evidence on record, has assessed the disability at 40% that too after taking into consideration the doctors' evidence, who have given evidence before the Court. The Tribunal ought to have taken judicial note, the nature of injuries sustained by the appellant, his avocation and also the fact that he is not in a position to enjoy the marital life through out his life. The appellant has spent considerable amount towards treatment of the injuries sustained by him and 9 further he has to undergo one more surgery, which has not been looked into or considered by the Tribunal. The manner in which the Tribunal has considered the case shows the lethargic attitude and non-application of mind. Taking into consideration all these factors, we are of the considered view that the appellant is entitled to Rs.30,000/- towards conveyance, nourishing food and attendant charges as against Rs.20,000/-, Rs.1,00,000/- towards loss of amenities as against Rs.25,000/-, Rs.3,24,000/- towards loss of future earning capacity (Rs.3,000/- x 12 x 18 x 50/100) as against Rs.2,59,000/-, Rs.36,000/- (Rs.3,000/- x 12) towards loss of income during treatment period as against Rs.15,000/- and Rs.40,000/- towards future medical expenses. However, the Tribunal has rightly awarded Rs.1,35,000/- towards medical expenses and Rs.60,000/- towards pain and sufferings. Hence, interference is uncalled for.
8. For the foregoing reasons, the impugned Judgment and Award passed by the Tribunal is liable to be modified. The 10 total compensation payable comes to Rs.7,25,000/- and the break-up is as follows:
Towards pain and suffering Rs. 60,000/- Towards medical expenses Rs.1,35,000/-
Towards conveyance, nourishing food & Rs. 30,000/- attendant charges Towards loss of future earning capacity Rs.3,24,000/-
Towards loss of amenities Rs.1,00,000/-
Towards loss of income during treatment Rs. 36,000/-
period
Towards future medical expenses Rs. 40,000/-
Total : Rs.7,25,000/-
9. Learned counsel appearing for the respondent -
Corporation relies upon the judgment passed by the learned Single Judge of this Court. After perusal of the said judgment dated 04.10.2007, the same has been dismissed after hearing the learned counsel appearing for the appellant - Corporation and the learned counsel appearing for the respondent - claimant, on the ground that the Corporation has not made 11 out any case for reduction of compensation and that does not come in the way of seeking enhancement and it should be decided in the interest of equity and social justice even if it is not claimed. After re-appreciation of oral and documentary evidence, particularly P.Ws.2 and 3 and having regard to the young age and the serious major injuries suffered by the appellant, we are of the considered opinion that the appellant is entitled to enhancement of compensation as referred above.
10. Accordingly the appeal filed by the appellant is allowed in part and the impugned Judgment and Award dated 08.01.2007 passed in MVC No.1528/2006 on the file of XIX Additional Small Cause Judge & MACT, Bangalore (SCCH-17) is hereby modified, awarding the compensation of Rs.7,25,000/- instead of Rs.5,14,000/- awarded by the Tribunal. The enhanced compensation comes to Rs.2,11,000/- with interest at 6% p.a., from the date of petition till realisation.
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The Corporation is directed to deposit the enhanced compensation with interest at 6% p.a., from the date of the petition till realisation within a period of three weeks from the date of receipt of a copy of Judgment and Award.
Out of the enhanced compensation, a sum of Rs.1,50,000/- with proportionate interest, shall be invested in Fixed Deposit in the name of the appellant in any Nationalised or Scheduled Bank for a period of ten years and renewable for another ten years. Appellant is entitled to withdraw the interest periodically.
The remaining amount of Rs.61,000/- shall be released in favour of the appellant immediately on deposit by the Corporation.
Office to draw the award accordingly.
13Since this Court after perusing the documents produced along with I.A.I/2011, has enhanced the compensation in a sum of Rs.2,11,000/-, I.A.I/2011 stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE AGV.