Karnataka High Court
Mr Aseem @ Aseef vs Sri Ajje Gowda on 18 July, 2013
Bench: N.K.Patil, B.Manohar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18th DAY OF JULY 2013
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B. MANOHAR
MFA No.6162 /2010 (MV)
BETWEEN:
MR. ASEEM @ ASEEF
S/O. SRI KUNJU MONU
AGED ABOUT 22 YEARS
MENTALLY RETARDED/
UNSOUND/REPRESENTED
BY HIS MOTHER/
NATURAL GUARDIAN
SMT. NABEESA,
W/O. SRI KUNJU MONU
AGED ABOUT 47 YEARS
R/O BEHIND CMC OFFICE
BOMMANAHALLI
BANGALORE ... APPELLANT.
(BY SRI M RAVINDRANATH, ADV.)
AND :
1. SRI AJJE GOWDA
S/O. NAGE GOWDA
AGE MAJOR
AGRICULTURIST AND
R.C. OWNER OF TRACTOR AND
TRAILER BEARING
REGISTRATION NO.KA-18-1461-1462
R/O. CHIKKANAHALLI
KARTHIKERE
CHIKMAGALUR DISTRICT.
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2. THE BRANCH MANAGER
M/S. NEW INDIA ASSURANCE CO. LTD.,
KOLLAPURADAMMA TEMPLE STREET
CHICKMAGALUR - AT/DT. ... RESPONDENTS.
(POLICY NO.31/670604/06346
VALID FROM 21-07-1993 TO 20-07-1994)
(BY SRI G GIRIYAPPA FOR SRI M.S. MANDANNA, ADV. FOR R2,
R-1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 16.12.2009
PASSED IN MVC NO.8369/2008 ON THE FILE OF X ADDITIONAL
JUDGE, MEMBER, MACT, BANGALORE (SCCH-16) PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
N.K. PATIL J., DELIVERED THE FOLLOWING: -
JUDGMENT
This is an appeal by the claimant directed against the impugned judgment and award dated 16.12.2009 passed in MVC No.8369/2008 on the file of X Addl. Judge, MACT, Bangalore, (SCCH 16). The Tribunal by its impugned judgment and award, awarded compensation of a sum of Rs.3,10,200/- with interest @ 6% p.a. from the date of petition till the date of realization on account of the injuries suffered by the appellant in the road traffic accident. Being aggrieved -3- by the quantum of compensation awarded by the tribunal on the ground that it is inadequate and requires enhancement, the appellant has presented this appeal.
2. It is stated that the appellant is aged about 22 years, mentally retarded and unsound and hence, represented by natural guardian - mother. The claimant has filed the claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in the accident that occurred on 26.02.1994 at about 1.00 p.m. when the appellant was playing in front of his house at Vijayapur Extension, I Cross, Chikmagalur. At that time, a Tractor with Trailer bearing registration No.KA-18-1461 and Trailer No.KA- 18-1462 came at a high speed and dashed against the appellant negligently and fled away without stopping. Due to the impact the appellant fell down and became unconscious as he sustained grievous injuries to his head resulting in fracture of peretal bone and -4- protrusion of brain matter out of the brain. He was immediately shifted to Chetana Nursing Home, Chikmagalur, and thereafter he took treatment in the Hospitals at Mangalore and Bangalore and still is under treatment and medication. The appellant is suffering from epilepsy, fits and hot waster epilepsy and he cannot perform his daily routine independently and an attendant's assistance is required through out his life time. As on the date of accident, he was a child aged about 5 years. Hence after the accident due to mental retardness he had to discontinue his education and his life has become miserable.
3. Taking all these factors into consideration, the appellant represented by mother - natural guardian has filed a claim petition against the respondents before the Tribunal. The Tribunal in turn after due consideration of oral and documentary evidence, age of the appellant, date of accident and the nature of injuries suffered by the appellant has allowed in part, the claim petition, by -5- awarding Rs.3,10,200/- with interest @ 6% p.a. from the date of petition till the date of realization. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant-claimant has presented this appeal seeking enhancement of compensation.
4. Submission of the learned counsel appearing for the appellant, at the outset is that the amount of compensation awarded by the Tribunal towards pain and suffering, loss of amenities in life, discomfort, loss of happiness, and loss of marriage prospects, is inadequate. Further the learned counsel vehemently submitted that the Tribunal has failed to award any compensation towards future medical expenses including attendant charges, since the appellant has to depend on an attendant throughout his life and that his life is nothing but a rotten vegetable. This aspect of the matter ought to have been considered by the Tribunal and awarded compensation towards future medical -6- expenses including attendant charges. Therefore, he submitted the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing the compensation.
5. As against this, the learned counsel appearing for the 2nd respondent - Insurance Company, inter alia substantiates the impugned judgment and award passed by the Tribunal stating that the same is passed after due consideration of the oral and documentary evidence on record and the pleadings put forth by the parties and hence interference by this court is not called for. Further, he submits that the compensation awarded towards pain and suffering, loss of marriage prospects, loss of amenities, discomfort and unhappiness is also on the lower side, taking into consideration the age of the injured-claimant, compensation on the above heads may be enhanced in accordance with law.
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6. After careful consideration of the submissions made by learned counsel appearing for both the parties and on perusal of the impugned judgment and award the point that arises for our consideration is as to "Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
7. The undisputed facts of the case are that the appellant has sustained grievous injuries, which he has to bear throughout his life, the accident in question is not in dispute. After due investigation, the Doctor PW3 has opined the nature of injuries as follows :-
A. A CT Brain was done and this
revealed encephalomalacic changes
under the wound sustained suggestive of permanent brain damage;
B. A EEG (electroencephalogram) done on 20.07.2009 did not show any seizure activity currently;
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C. A detailed neuropsychological
assessment done on 24.6.2009
revealed evidence of :
a) He has lost most of his acquired self help skills after accident;
b) Cannot identify or use money;
c) Cannot identify all the colors and
d) No eye to eye contact and his reaction time was very high.
The Doctor - PW3 further opined that the patient's final whole body disability at 86.66% on the basis of the medical documents produced i.e., four OPD slips at Ex.P9, as per Neuropsychology report at Ex.P.10, CT Scan report at Ex.P.11, EEG report at Ex.P.12 and OPD record at Ex.P.13 etc. But he however, admitted that he is not the Doctor, who treated the appellant, but on the basis of the wound certificate and the medical records, he opined regarding the said disability. The appellant has been treated initially at Chetana Nursing Home and thereafter in the hospitals at Chikmagalur, Mangalore and at NIMHANS Hospital in Bangalore. As on the date -9- of accident the appellant was aged 5 years. He has suffered mentally, and undergone the pain and agony during the treatment period and has to bear the difficulty, discomfort and disability through out his lifetime, and he will not be in a position to get married. Taking all these relevant factors into consideration, we deem it necessary to award compensation of Rs.1,50,000/- towards pain and suffering as against Rs.25,000/-, a sum of Rs.1,00,000/- towards loss of amenities in life as against Rs.10,000/- and a sum of Rs.50,000/- towards loss of marriage prospects & loss of expectation of life as against Rs.20,000/- awarded by the Tribunal, to meet the ends of justice.
8. The Tribunal is justified in awarding compensation of a sum of Rs.2,32,200/- towards loss of income, Rs.13,000/- towards medical expenses and Rs.10,000/- towards attendant charges, food and nourishment and conveyance charges. Therefore,
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interference by court is not called for, in respect of these heads.
9. Thus the appellant is entitled to the modified compensation as follows :-
A Towards loss of future income Rs. 2,32,200-00 B Towards pain and suffering Rs. 1,50,000-00 C Towards loss of amenities in Rs. 1,00,000-00 life D Towards medical expenses Rs. 13,000-00 E Towards conveyance, Rs. 10,000-00 nourishment & food charges F Towards loss of marriage Rs. 50,000-00 prospects & loss of expectation of life -
Rs. 5,55,200-00
10. Accordingly, the instant appeal is allowed in part.
The impugned judgment and award dated 16.12.2009 passed in MVC No.8369/2008 is hereby modified awarding Rs.5,55,200/- as against Rs.3,10,200/- awarded by the Tribunal and there will be an enhancement of a sum of Rs.2,45,000/- with 6%
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interest from the date of petition till the date of realization.
The 2nd Respondent - Insurance Company is directed to deposit the enhanced compensation with interest within three weeks from the date of receipt of a copy of this judgment.
Immediately on such deposit by the Insurance Company, out of the enhanced amount of Rs.2,45,000/- a sum Rs 2,00,000/- with proportionate interest shall be invested in a fixed deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 10 years renewable by another 5 years with liberty reserved to the appellant's mother - natural guardian to withdraw the interest accrued on the deposit periodically.
The balance Rs.45,000/- with proportionate interest, shall be released immediately in favour of the
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appellant's mother - natural guardian to be utilized for the welfare of the appellant.
Office to draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE NG*