Karnataka High Court
Sri Annappa Bhandary vs Mr.G.Mohammed Farooque on 23 February, 2016
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2016
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
M.F.A.No. 8369 of 2014 (MV)
Between:
Sri. Annappa Bhandary,
S/o. Sheena Bhandary,
Aged about 24 years,
R/o. Alsadi, Kalthodu Village,
Kundapura Taluk,
Udupi District-576 201.
....Appellant
(By Sri. Nagaraja Hegde, Advocate)
And:
1. Mr. G. Mohammed Farooque,
S/o. G. Abdul Khadar,
Aged about 31 years,
R/o. A.K. Compound,
Ganganad Road,
Bada Post, Byndoor Village,
Kundapura Taluk,
Udupi District-576 201.
2. United India Insurance Co. Ltd.,
Kanchan Towers NH-17,
Kundapura, Udupi District-576 201.
....Respondents
(Respondents served & unrepresented)
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This MFA is filed U/s. 173(1) of MV Act against the
Judgment and Award dated: 02/09/2014, passed in MVC
No.516/2013, on the file of the Senior Civil Judge and
Member, Additional Motor Accident Claims Tribunal,
Kundapura, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
This M.F.A. coming on for Hearing this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 02/09/2014, passed in MVC No.516/2013, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura, (hereinafter referred to as 'Tribunal' for short).
2. The Tribunal, by its judgment and award has awarded a sum of `7,94,180/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit as against the claim of `25,00,000/-, on account of the injuries sustained by him in the road traffic accident.
3. In brief, the facts of the case are:
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The appellant claims to be aged about 23 years at the time of the accident. He was hale and healthy prior to the accident, Barber by profession and running Hair cutting center at Thaggarse and earning `15,000/- per month. That on 21.3.2013 at about 1.30 p.m. appellant was riding his motor cycle bearing Reg.No.KA.20.K.6176 fromByndoor side towards Kollur side in a very slow manner and when he came near Vasre Bridge, Kollur-Byndoor road, Theggerse village, Kundapura Taluk, at that time, the driver of the Maruthi Omni bearing Reg.No.KA.20.B.7848 came in a very high speed and in a rash and negligent manner from Kollur side towards Byndoor side and dashed to his motor cycle. Due to which, he sustained grievous injuries. Immediately, he was shifted to KMC Hospital, Manipal, where he took treatment as inpatient, underwent surgeries and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment.4
4. It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has assessed the physical disability at 85% to right upper limb. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `7,94,180/- as compensation under different heads with interest at 6% p.a., from the date of petition till its deposit.
6. Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal. 5
7. The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in not assessing the income of the appellant reasonably, on the ground that, he was aged about 23 years, Barber by profession and running Hair Cutting shop and accident has in the year 2013. Therefore, he submitted that the income of the appellant may be re-assessed at `10,000/- per month. Further, he submits that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness, towards loss of future earnings and in not awarding any compensation towards loss of marriage prospects and towards future medical expenses and what is awarded is inadequate and it requires to be enhanced reasonably, on the ground that, on account of grievous injuries sustained by the appellant, he has taken treatment as inpatient for 53 6 days. The injuries has resulted in permanent disability. To prove the same, he examined the Doctor as PW2, who has assessed the disability at 85% to upper limb and 100% functional disability and as per the evidence of the Doctor, there is 85% of loss of movement of right shoulder and 100% to elbow, forearm and hand and he has no sensation in the right upper limb distal to elbow but the Tribunal has erred in taking disability at 35% to the wholebody contrary to the evidence on record. Due to which, he has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for six months, discomforts and unhappiness persists through out his life, it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier and he requires some amount towards future medical and other incidental expenses. But these aspects of the matter have not been considered or appreciated by the 7 Tribunal while awarding compensation under different heads. He further submits that the rate of interest awarded by the Tribunal is on the lower side and is liable to be enhanced between 9 to 10% in the light of the judgments of the Apex Court and this Court as the accident has occurred in the year 2013. Therefore, he submitted that the impugned judgment and award is liable to be modified.
8. Respondents served and unrepresented.
9. After careful consideration of the submission made by learned counsel appearing for the appellant and after perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
10. In the accident that occurred on 21.3.2013, appellant has sustained injuries viz., right clavicle 8 middle 1/3rd fracture, right brachial plexuses palsy, right subclavian artery IInd and IIIrd and part thrombosis and as per Ex.P3, above injuries are grievous in nature. It is the case of the appellant that, he is aged about 23 years, Barber by profession and running Hair Cutting shop and earning `15,000/- per month. The Tribunal has assessed the income at `6,500/- per month which is on the lower side and is liable to be enhanced reasonably. Having regard to the age and occupation of the appellant and the year of accident, we re-assess his income at `8,000/- per month to meet the ends of justice. On account of grievous injuries sustained by the appellant as per Ex.P3-Wound certificate, he has taken treatment as inpatient for 53 days on different dates. During the said period, he might have undergone lot of pain and agony, he might have spent considerable amount towards medical expenses, conveyance and other incidental expenses, and as per the advise of the Doctor he might 9 have taken bed rest and follow-up treatment atleast for six and during that period, he might have incurred financial loss as he could not have attended his work regularly. Further, it is the case of the appellant that, on account of grievous injuries sustained by him in the accident, he has suffered permanent disability. To prove the same, he examined the Doctor as PW2, who after clinical examination has assessed permanent disability at 85% to the limbs and 1/3rd of which i.e. 28.33% is the whole body. The Tribunal, after assigning valid reasons has assessed the disability at 35% to the whole body and we accept the same. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity and marriage prospects and he may require some reasonable amount towards future medical expenses and it has to be compensated. The proper multiplier applicable is '18' as rightly adopted by the Tribunal since appellant was aged about 23 years 10 as on the date of the accident and we accept the same. Taking all these aspects into consideration, we award a sum of `1,00,000/- towards injury, pain and suffering as against `70,000/-, `48,000/- towards loss of income during the treatment period at the rate of `8,000/- per month for six months as against `32,500/-, `6,04,800/- (`8,000/- x 12 x 18 x 35%) towards loss of future earnings as against `4,91,400/-, `75,000/- towards loss of amenities, discomforts and unhappiness as against `25,000/-, `1,00,000/- towards loss of marriage prospects and `50,000/- towards future medical expenses.
11. The Tribunal, after due appreciation of the oral and documentary evidence available on file has justified in awarding a sum of `1,75,280/- towards medical expenses, including incidental expenses and therefore, it does not call for interference. In all, the appellant is entitled to the total compensation of 11 `11,53,080/- instead of `7,94,180/- and the break- up is as follows:
Towards injury, pain and sufferings ` 1,00,000/- Towards medical expenses, ` 1,75,280/- conveyance, nourishing food and attendant charges Towards loss of income during the ` 48,000/- period of treatment Towards loss of amenities ` 1,00,000/- Towards loss of future earnings ` 6,04,800/- Towards future medical expenses ` 50,000/- Towards loss of marriage prospects ` 1,00,000/-
Total ` 11,53,080/-
12. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal. Thus, there would be an enhancement of `3,58,900/- with interest at 9% p.a, from the date of petition till its realization.12
13. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 02/09/2014, passed in MVC No.516/2013, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura, stands modified, awarding a sum of `3,58,900/- with interest at 9% p.a., from the date of petition till its realization.
The second respondent-Insurer is directed to deposit the enhanced compensation of `3,58,900/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.
Immediately on such deposit by the Insurer, out of the enhanced compensation of `3,58,900/-, a sum of `2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant in any Nationalized or Scheduled or Grameena bank, for a period of 10 years and renewable 13 by another 05 years, with liberty reserved to the appellant to withdraw the interest accrued on it, periodically.
The remaining sum of `1,58,900/- with proportionate interest shall be released in favour of the appellant immediately.
Draw the award, accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*