Karnataka High Court
Sri Johnson K A vs Sri A A James on 12 July, 2013
Author: B.Sreenivase Gowda
Bench: B. Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
MFA No.10247/2010 (MV)
BETWEEN
SRI.JOHNSON.K.A.,
AGED 47 YEARS,
S/O SRI.K.U.ANTONY,
R/O ILLIKAL HOUSE,
KAYARTHADKA POST,
KALANJA VILLAGE.
BELTHANGADY TALUK, D.K.
...APPELLANT
(BY SRI.PUNDIKAI ISHWAR BHAT, ADV.)
AND
1. SRI.A.A.JAMES,
MAJOR,
S/O SR. A.J.ABRAHAM,
R/O PIJINAGURI HOUSE,
KAYARTHADKA POST,
KALANJA VILLAGE,
BELTHANGADY TALUK, D.K.,
2. UNITED INDIA INSURANCE CO. LTD.,
PRABHU BUILDING, MAIN ROAD,
PUTTUR.
REP. BY ITS MANAGER.
2
3. SRI ABDUL AZIZ,
MAJOR,
S/O SRI.ABDUL KHADER,
R/O ADARSHA NAGARA,
LAILA VILLAGE,
BELTHANGADY TALUK, D.K.
4. NATIONAL INSURANCE CO. LTD.,
SHREE DHARMASTHALA BUILDING,
PUTTUR, D.K.
REP. BY ITS MANAGER.
... RESPONDENTS
(BY SRI.R.RAJAGOPALAN, ADV. FOR R2
R1, R3 AND R4 ARE NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED:06.03.2010 PASSED IN MVC NO. 1664/2007 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK
COURT MANGALORE & MEMBER MACT, MANGALORE.
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
***
JUDGMENT
This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
3
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
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 injuries sustained by the claimant in a road traffic accident occurred on 15.06.2007 due to rash and negligent driving of the offending jeep bearing registration No.KA-21/5203 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
"Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"4
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per wound certificate Ex.P-2, the claimant has sustained following injuries:-
a) Laceration over left forearm measuring 3 x 2 cms
b) Injury abdomen shows (i) minimal face fluid in sub-phrenic Morrisons pouch and pelvic region - Hemopeitonium (ii) minimal right pleural collection Henotharax.
c) Injury to chest - x-ray of chest and erect abdomen shows rupture of left diaphragm with stomach in the left thorax, scan of chest shown mild to moderate pneunothorax on the left side with collapse underlying lungs and minimal fluid at left pleural affusion (Hemothorax) on the right side with passive collapse of the underlying lungs
d) Fracture of left acetablulum.5
The injuries sustained and treatment taken by the claimant are also evident from Ex.P7-Discharge certificate, Ex.P11-4 X-rays, Ex.P12-Case sheet, Ex.P13-C.T.Scan, Ex.P14-20 X-rays and supported by oral evidence of the claimant and doctor, who were examined as PWs-1, 2 and 3 respectively. PW-2-Dr.Ganapathi.P and PW-3Dr.Mayur Rai have stated in their evidence with regard to the treatment given to the claimant and issuance of disability certificate as per Ex.P7. The claimant was treated by fixing the rod from out side of his left leg and subsequently it has been cured and they have stated that the claimant has suffered disability of 15% to total function of left leg.
7. Considering three grievous injuries and one simple injury sustained by the claimant, a sum of Rs.55,000/- is awarded towards 'pain and suffering'. 6
8. As Rs.69,700/- awarded by the Tribunal towards 'medical expenses' is based on the medical bills produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 43 days in Mangala Hospital, Mangalore. Considering the duration of treatment, a sum of Rs.20,000/- is awarded towards 'incidental expenses' such as conveyance, nourishment and attendant charges.
10. The claimant claims to have been earning Rs.10,000/- per month by doing agriculture/Mason and has produced Ex.P9-RTC copies. Considering his age as 44 years, year of accident as 2007 and his avocation as agriculturist, his income is assessed at Rs.4,000/- per month The nature of injuries suggest 7 that he must have been under rest and treatment for a period of 4 months and therefore a sum of Rs.16,000/- is awarded towards 'loss of income during laid up period'.
11. Considering the nature of injuries sustained by the claimant and disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.20,000/- is awarded towards 'loss of amenities'.
12. The claimant is aged about 44 years and the multiplier applicable to his age group is 14. His income is assessed at Rs.4,000/- per month. PWs-2 & 3, doctors in their evidence have stated that claimant has suffered disability of 15 left leg. The Tribunal is not justified in taking the disability at 5% to whole body. Considering the nature of injuries sustained by the claimant, justice would be met if functional disability is 8 taken at 10%. Therefore, the 'loss of future income' works out to Rs.67,200/- (4000 x 12 x 14 x 10/100) and it is awarded.
13. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and sufferings 55,000
Medical Expenses 69,700
Incidental expenses 20,000
Loss of income during laid up 16,000
period
Loss of amenities 20,000
Loss of future income 67,200
TOTAL 2,47,900
LESS: Compensation awarded 1,35,000
by the Tribunal
BALANCE 1,12,900
14. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of 9 Rs.1,12,900/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
15. The Insurance Company/respondent No.2 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. From which, Rs.1,00,000/- with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 6 years with a right of option to withdraw interest periodically. Remaining amount of Rs.12,900/- with proportionate interest is ordered to be released in favour of the claimant.
16. The Tribunal while releasing Rs.12,900/- of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching 10 the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.
Sd/-
JUDGE VM