Karnataka High Court
Sri K N Sadananda Murthy vs Sri M Ramakrishnappa on 31 January, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.11398 OF 2008(MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.11399 OF 2008(MV)
In MFA No.11398/2008
BETWEEN:
SRI.K.N.SADANANDA MURTHY
S/O LATE K.N.NYANAPPA
AGED ABOUT 49 YEARS
R/AT KUMBIGANAHALLI
'H' CROSS, SIDDLAGHATTA TALUK
CHICKBALLAPUR DISTRICT ... APPELLANT
(BY SMT.SUGUNA R.REDDY, ADVOCATE)
AND:
1. SRI M.RAMAKRISHNAPPA
S/O SRI.MUNIYAPPA
MAJOR IN AGE
R/AT AMMERAHALLI
MADERAHALLI POST
KOLAR TALUK & DISTRICT
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.
SARVAMANGALA COMPLEX
NO.21, HOSUR ROAD
ADUGODI, BANGALORE - 30 ... RESPONDENTS
(RESPONDENTS SERVED BUT UNREPRESENTED)
*****
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.3.2008 PASSED IN
MVC NO.5967/2004 ON THE FILE OF THE JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT, METROPOLITAN
AREA, BANGALORE (SCCH NO.9) PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION WITH 12% INTEREST.
In MFA No.11399/2008
BETWEEN:
SRI VASU @ VASUDEVASHETTY
S/O SRI AMARANARAYANA SHETTY
AGED ABOUT 44 YEARS
R/AT KUMBIGANAHALLI
'H' CROSS, SIDDLAGHATTA TALUK
CHICKBALLAPUR DISTRICT ... APPELLANT
(BY SMT.SUGUNA R.REDDY, ADVOCATE)
AND:
1. SRI M.RAMAKRISHNAPPA
S/O SRI MUNIYAPPA
MAJOR IN AGE
R/AT AMMERAHALLI
MADERAHALLI POST
KOLAR TALUK & DISTRICT
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.
SARVAMANGALA COMPLEX
NO.21, HOSUR ROAD
ADUGODI, BANGALORE - 30 ... RESPONDENTS
(SRI.A.M.VENKAESH, ADVOCATE FOR RESPONDENT NO.2
RESPONDENT NO.1 - SERVED)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.3.2008 PASSED IN
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MVC NO.5968/2004 ON THE FILE OF THE JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT, METROPOLITAN
AREA, BANGALORE (SCCH NO.9), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION WITH 12% INTEREST.
THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The claimants in MVC Nos.5967/2004 and 5968/2004 on the file of the MACT, Bangalore have come up in these appeals seeking enhancement of compensation awarded in the common judgment dated 26.3.2008.
2. The brief facts leading to these two appeals are as under:
The claimants in MVC Nos.5967/2004 and 5968/2004 are rider and pillion rider of motorcycle bearing No.KA-01-Q-4499. It is stated that on 4.9.2004 at about 8.30 p.m. they were proceeding on Kolar- Sompura Road. At that time, they were hit by a lorry bearing registration No.MEK-8299, resulting in injuries to both the rider and pillion rider of the motorcycle. -4- Hence, the claim petitions were filed by them seeking compensation against the owner and insurer of the offending lorry, which came to be allowed awarding compensation of Rs.4,21,465/- to the claimant in MVC No.5967/2004 and compensation in a sum of Rs.2,49,445/- to the claimant in MVC No.5968/2004. Being aggrieved by the same, these two appeals are filed.
3. Coming to the appeal in MFA No.11398/2008 filed by the claimant in MVC No.5967/2004, the contention of the appellant is that the claimant has suffered fracture of shaft of right femur and fracture of right tibia in the said accident. He was admitted to hospital on 7 occasions spanning between 5.9.2004 to 18.9.2006, in all spending 37 days in the hospital, during which period he has undergone surgery and correction, on more than four occasions. In the claim petition filed by them, he has adduced evidence as PW1 and he also got two doctors examined to support the injuries suffered by him and also the treatment provided to the injuries -5- suffered in the said accident. Those doctors are examined as PWs.3 and 6. In support of his case, he has produced 34 documents and marked as Exs.P1 to Ex.P34, which refers to 6 surgeries as well as corrections which was done to him during the aforesaid period. According to the claimant, he was an agriculturist and also doing business in the name of his wife and because of the accident he has suffered loss in his business and also did not earn any income from agricultural activities, as he was confined to bed for more than two years. The Tribunal on appreciation of oral and documentary evidence has awarded compensation, in a sum of Rs.4,21,465/-, which is apportioned as under:
a. Pain and suffering : Rs. 50,000/-
b. Medical expenses : Rs. 2,09,865/-
c. Incidental charges : Rs. 15,000/-
d. Loss of amenities : Rs. 15,000/-
e. Conveyance : Rs. 10,000/-
f. Loss of income during laid : Rs. 18,000/-
up period
g. Loss of earning capacity : Rs. 93,600/-
h. Future treatment : Rs. 10,000/-
Total : Rs. 4,21,465/-
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4. The counsel appearing for the appellant submits that the said compensation is on the lower side considering the fact that the claimant was hospitalized for 37 days and he was admitted to the hospital on 7 occasions for surgery and correction which has taken place on 6 occasions and it is further stated that he has produced, in all, medical bills to the tune of Rs.2,71,863/-. While considering the bills which are produced and marked at Ex.P7 amounting to Rs.1,91,233.40 ps., the Tribunal has allowed the same. However, while considering the bill in Ex.P26, which comes to about Rs.80,000/-, the compensation awarded is only Rs.18,000/- due to an error in not appreciating the evidence. In that view of the matter, there is shortfall in compensation awarded under the said head to an extent of Rs.61,000/-, which is required to be considered in this appeal. It is also stated that the evidence of the doctors is not properly appreciated while calculating and awarding compensation for future treatment and for the loss of income during laid up -7- period as well as the future loss of income. The actual income which is arrived at is on the lower side.
5. After hearing the counsel appearing for the appellant and contesting respondent and also on going through the judgment impugned, this Court feel that there is force in the submission of the counsel appearing for the appellant, in as much as the Tribunal having ignored several aspects while deciding the compensation required to be looked into while awarding compensation in the said proceedings. On going through the judgment impugned, it is seen that the compensation awarded in a sum of Rs.50,000/- towards pain and suffering is on the lower side. Considering the period for which the claimant was hospitalized and also undergoing 6 surgeries and correction, the compensation is required to be enhanced to Rs.70,000/-. Similarly non-consideration of the bills to the tune of Rs.61,000/-, cannot be ignored, therefore, the medical expenses of Rs.2,09,865/- is enhanced to Rs.2,70,000/-. So far as incidental charges, amenities -8- and conveyances expenses Rs.40,000/- awarded by the Tribunal is enhanced to Rs.50,000/-. So far as the loss of income during laid up period is considered, the same is awarded for six months at Rs.3,000/-. Admittedly, the claimant has spent 37 days in the hospital in a span of 1½ year. In that view of the matter his income is to be taken at Rs.3,500/- and compensation is awarded for loss of income during laid up period at the said rate for 10 months at Rs.35,000/-. The same notional income is taken to calculate loss of future earning capacity which is assessed by taking disability of 20%. In the result, the claimant would be entitled to compensation in a sum of Rs.1,17,600/- (3500 x 12 x 14 x 20%). Similarly considering the evidence of doctor, for future treatment, Rs.20,000/- is required to be awarded. In that view of the matter, the appeal filed by the claimant in MVC No.5967/2004 is allowed in part. The compensation of Rs.4,21,465/- awarded by the Tribunal is enhanced to Rs.5,62,600/-. In the result, the claimant would be entitled to enhanced compensation of Rs.1,41,135/-, which he is entitled to -9- receive with 6% interest from the date of petition till the date of deposit of entire amount.
6. Coming to appeal in MFA No.11399/2008 filed by the claimant in MVC No.5968/2004, it is seen that the claimant in the said petition has suffered comminuted fracture of shaft of right tibia and lacerated wound over right leg and he was in hospital for a period of 17 days commencing from 5.9.2004 to 15.12.2004 and thereafter claim petition is filed by him seeking compensation for the injury caused in the said accident. So far as the claimant in this proceedings is concerned, he has examined himself as PW.2 in the common evidence recorded by the Tribunal. In support of his case, he has also produced documents which are marked in common from Exs.P1 to P34. Exs.P13 to P22 are the documents with reference to the treatment that was provided to him. The Tribunal on appreciation of the oral and documentary evidence available on record proceeded to award compensation in a sum of Rs.2,49,445/-. Being aggrieved by the same, this
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appeal is filed contending that the compensation awarded under the head loss of amenities, loss of income during laid up period, future loss of income and future medical expenses is required to be reassessed.
7. After hearing the learned counsel for the appellant and the contesting respondent and after going through the judgment impugned, it is seen that there is force in the submission made by the counsel, in so far quantum of compensation is concerned. Considering the fact that the claimant was in hospital for more than 17 days and the fracture suffered by him being serious, the compensation awarded under the head loss of amenities at Rs.10,000/- is required to be enhanced to Rs.15,000/-. The compensation awarded towards 'loss of income during laid up period' is required to be awarded for four months by taking the income at Rs.3,500/-. In the result, the claimant would be entitled to enhanced compensation of Rs.5,000/-. So far as loss of future income is concerned, the same is calculated by taking income at Rs.3,500/- p.m. and
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16% disability, by applying multiplier of 15. Hence, the claimant would be entitled to compensation of Rs.1,00,800/- (3500 x 12 x 15 x 16%). Therefore, the claimant would be entitled to additional compensation of Rs.25,920/- under the head loss of future earning. In addition, the claimant is also entitled to another sum of Rs.5,000/- towards future medical expenses. Thus, the claimant would be entitled to compensation of Rs.2,91,365/- in the place of Rs.2,49,445/- awarded by the Tribunal. Therefore, the claimant is entitled to additional compensation of Rs.41,920/-, which he is entitled to receive at 6% interest from the date of petition till the date of deposit of entire compensation.
8. Accordingly, both the appeal are allowed. The appellant in MFA No.11398/2008 is entitled to receive enhanced compensation of Rs.1,41,135/- out of which, Rs.1,20,000/- with proportionate interest is ordered to be deposited in any nationalized bank in his name for a period of 5 years, with right to receive the interest
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periodically. The balance amount of Rs.21,135/- with proportionate interest to be released in his favour.
9. So far the appellant in MFA No.11399/2008 is concerned, he is entitled to receive additional compensation in a sum of Rs.41,920/-, which shall be released in his favour on deposit of the same, the amount to be released in his favour. The contesting respondent - insurance company to deposit the modified award amount within four weeks from the date of receipt of a certified copy of judgment and award in these appeals.
Sd/-
JUDGE AHB