Karnataka High Court
Sri Nanjundappa vs Mrs U Selvi on 16 December, 2013
Bench: N.K.Patil, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF DECEMBER, 2013
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
M.F.A.NO. 3317 OF 2011 (MV)
Between:
Sri. Nanjundappa,
S/o. Late Lakshmana Bovi,
Aged about 47 years,
R/at. C/o. Shankarappa,
Kurubarahalli,
Basaveshwar Nagar,
Bangalore.
... Appellant
(By Shri. C.N.Raghavendra, for Smt. Suguna.R.Reddy,
Advocate)
And:
1. Mrs. U. Selvi,
W/o. Uthirasamy.Y,
Major in age,
R/at. 2/206, Palpakki Komaliyur,
Palpakki Post, Omalur,
Selem-636 455,
Tamil Nadu.
2. The Manager,
ICICI Lombard General
Insurance Co., Ltd.,
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Regional Office,
Prestige Comiche,
No.62/1, 2nd Floor,
Richmond Road,
Bangalore-26.
... Respondents
(By Shri. A.N. Krishna Swamy, Advocate for R2;
R1 served)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 13/08/2010 passed in MVC
No.7180/2009 on the file of the Chief Judge, Court of Small
Causes, Principal Motor Accident Claims Tribunal,
Bangalore, 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
Though this matter is posted for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
2. This appeal by the claimant is directed against the impugned judgment and award dated 13th August 2010, passed in MVC No.7180/2009, by the Chief Judge, Court of Small Causes, Principal Motor Accident Claims Tribunal, Bangalore, (for short, 'Tribunal' ) for 3 enhancement of compensation on the ground that, the compensation of `7,06,802/-, awarded in his favour as against his claim for `25,00,000/-, is inadequate.
3. The appellant claims to be aged about 45 years and a Mason by profession, earning a sum of `300/- per day. He was hale and healthy prior to the date of accident. That at about 7:00 P.M., on 14-05- 2009, when the appellant was coming on his bicycle, the driver of Tipper Lorry bearing Registration No.TN- 30/AZ-3357, came at a high speed, in a rash and negligent manner and came from opposite direction and dashed against the bicyle of the appellant. Due to the impact, the appellant sustained grievous injuries and shifted to the Hospital and ultimately his right leg above the knee was amputated.
4. It is the case of the appellant that he has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses 4 and other incidental expenses and therefore, he has to be compensated adequately.
5. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of `25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 13th August 2010. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of `7,06,802/- with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.
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6. We have heard learned counsel for appellant and learned counsel for second respondent/Insurance Company for considerable length of time.
7. It is the case of the appellant that on account of the road traffic accident, as per Ex.P4, wound Certificate, he sustained swelling tenderness present over lower 1/3rd of right leg, abrasion measuring 4 x 3 cms over lower 1/3rd of shins of right leg,X-ray No.792 of right leg showed comminuted fracture of lower third both bones, oval shaped swelling measuring 30 x 8 cm over right iliac region (JSG shows parietal wall haematoma of right ilac bone and X-ray of chest showed fracture of right 5th, 6th, 7th, 8th ribs and the Doctor has opined that all the said injuries are grievous in nature as per the in-patient record maintained by the Hospital, as per Ex.P16, the appellant has also sustained poly trauma, right common iliac artery injury, both bones fracture right leg with vascular injury delayed presentation, right 4th and 5th rib fracture with pneumo 6 thorax, liver laceration with contained hematoma, D5- D9 undisplaced sipinous process fracture and acute post operative psychosis. For treatment of the said injuries, he was in-patient from 15-05-2009 to 02-06- 2009 and his right leg above knee was amputated and therefore, he has to be awarded reasonable compensation.
8. It is the submission of the learned counsel appearing for appellant at the outset that the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, conveyance, nourishing food and attendant charges, loss of income during treatment period and no compensation is awarded towards loss of amenities, discomfort and unhappiness on account of disability. To substantiate the said submission, he submitted that as per Wound Certificate at Ex.P4 and discharge summary/in-patient record, the appellant has sustained the injuries as stated above and the Doctor has assessed 80% 7 permanent functional disability in respect of right lower limb based on the amputation of the right femur mid shaft and opined that the said disability would come in the way of his day to day activities. The said disability persists throughout his life and the appellant has lost the future amenities, comforts and happiness in life. Therefore, he submitted that reasonable compensation be awarded all the said heads.
Further, he vehemently submitted that the Tribunal also erred in assessing the monthly income of the appellant at only Rs.3,000/-. The same is on the lower side and liable to be re-assessed to at least Rs.5,000/- to Rs.6,000/- per month as the appellant was aged about 55 years and working as a Mason, which is a skilled job. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified awarding reasonable compensation under all the heads.
9. As against this, learned counsel appearing for Insurer vehemently submitted that the compensation 8 awarded by Tribunal is after due appreciation of the oral and documentary evidence available on file, taking into consideration the age, avocation, year of accident and other facts and circumstances of the case. Hence, interference in the same is not called for.
10. After hearing learned counsel for the appellant and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, the only point that arise for our consideration in this appeal is, Whether the quantum of compensation awarded by Tribunal is just and reasonable?
Occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that on account of the grievous injuries sustained in the road traffic accident, the appellant has lost the right leg above knee. It is further not disputed that he was aged about 55 years and a Mason by 9 profession. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of `1,94,802/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for.
11. However, so far as the compensation awarded under injury, pain and sufferings, loss of future earnings, loss of income during treatment period and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness on account of disability. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries to his right leg and the same is being removed above knee. Looking at the nature of injuries sustained and also surgery undergone, the Doctor has assessed 80% permanent 10 functional disability in respect of right leg and not assessed the whole body disability. But, the Tribunal, relying upon the oral evidence of the appellant and also his avocation particularly, has re-assessed the whole body disability at 100%. The same, in our opinion is on the higher side. Having regard to the age, avocation, nature of injuries, viz. amputation of right leg above knee, we re-assess the whole body disability at 50%, to meet the ends of justice. The appellant being aged about 55 years, has to endure this disability for the rest of his life. But, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness on account of disability. Because of the injuries sustained, he must have been away from work for a period of not less than three months. Further, it can be seen that the Tribunal is not justified in assessing the income of the appellant at Rs.3,000/- per month. The same is on the lower side and liable to be re-assessed. The accident is of the year 2009. Therefore, having regard to the age, avocation and the 11 year accident, we re-assess the monthly income of the appellant at `5,000/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite a long period on account of amputation of his right leg above knee. During this period, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 55 years at the time of accident, the proper multiplier applicable is '11' as per the decision of the Hon'ble Apex Court in Sarla Verma's case (2009 ACJ 1298). Therefore, having regard to the age, avocation, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of `1,50,000/- towards injury, pain and suffering as against `1,00,000/-; `20,000/- towards conveyance, nourishing food and attendant charges as against `4,000/-; `15,000/- towards loss of income during treatment period, at the rate of `5,000/- per 12 month for a period of three months; `1,00,000/- towards loss of amenities, discomfort and unhappiness, and `3,30,000/- (i.e. `5,000/- x 12 x'11'x 50/100) towards loss of future income as against `3,96,000/- awarded by Tribunal. Thus the total compensation works out to `8,09,802/- as against `7,06,802/- awarded by Tribunal and there would be enhancement of compensation by a sum of `1,03,000/- with 6% interest.
12. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 13th August 2010, passed in MVC No.7180/2009, by the Chief Judge, Court of Small Causes, Principal Motor Accident Claims Tribunal, Bangalore, is hereby modified, awarding a sum of `8,09,802/- as against `7,06,802/- awarded by Tribunal and there would be enhancement of compensation by a sum of `1,03,000/- 13 with 6% interest from the date of petition till the date of realization. The break-up is as follows:
Towards Pain and sufferings ` 1,50,000/- Towards Loss of amenities & ` 1,00,000/- enjoyment in life on account of disability Towards Medical Expenses ` 1,94,802/- Towards conveyance, nourishing ` 20,000/- food and attendant charges Towards Loss of earning during ` 15,000/- treatment period Towards loss of future earnings ` 3,30,000/-
Total ` 8,09,802/-
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The total compensation would workout to
`8,09,802/- as against `7,06,802/-. The enhanced
compensation would be `1,03,000/- with 6% interest per annum.
The second respondent/Insurance Company is directed to deposit the enhanced compensation of `1,03,000/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.
On such deposit by the Insurance Company, a sum of `80,000/- with proportionate interest shall be 14 invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by another five years, with liberty reserved to him to withdraw the periodical interest.
Remaining sum of `23,000/- with proportionate interest shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*