Karnataka High Court
Narasimhamurthy G, vs Praveen Kumar on 7 January, 2014
Bench: N.K.Patil, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JANUARY, 2014
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MRS.JUSTICE RATHNAKALA
M.F.A.No. 6998 OF 2010 (MV)
Between:
Narasimhamurthy.G,
Aged about 51 years,
S/o. K.V. Giriappa,
D.No.14, Padmashree
CFTRI Layout,
Bogadhi II Stage,
Mysore-26.
Proprietor of M/s. United Engineering Works,
At No.31/B, 2nd Stage, Industrial Suburb,
Mysore-570 008.
At the time of accident.
...Appellant
(By Sri. R.D. Renukaradhya, for M/s. P. Nataraju Associates)
And :
1. Praveen Kumar,
Major,
S/o. Mahalingappa,
No.1182, 5th Cross,
3rd Main, Vivekanandanagar,
Mysore.
2
2. Mahalingappa,
Aged 52 years,
S/o. Mallappa,
No.1182, 5th Cross,
2nd Main, Vivekanandanagar,
Mysore.
3. The Manager,
The National Insurance Co., Ltd.,
C/o. Mandavi Motors,
KRS Road, Mysore.
...Respondents
(Notice to R1 & R2 dispensed with v/o. dated 09/04/2013;
R3 served)
*******
This MFA is filed U/S 173(1) of MV Act against the
judgment and award dated: 20/02/2010 passed in MVC No.
530/2009 on the file of the Presiding Officer, Fast Track
Court-II and Additional Motor Accident Claims Tribunal,
Mysore, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
This M.F.A. coming on for Admission this day,
N.K. PATIL J, delivered the following:
:J U D G M E N T:
Though this matter is posted today for Admission, the same is taken up for final disposal with the consent of learned counsel for appellant.
2. This is a claimant's appeal against the impugned judgment and award dated 20/02/2010 passed in MVC No.530/2009, by the Presiding Officer, 3 Fast Track Court-II and Additional Motor Accident Claims Tribunal, Mysore, ( for short ' Tribunal'), for enhancement of compensation.
3. By its judgment and award, the Tribunal has awarded a sum of `4,14,370/- under different heads with interest at 6% p.a., except on future medical expenses from the date of petition till the date of deposit, as against the claim made by the appellant for a sum of `24,80,000/-, on account of the injuries sustained by him in the road traffic accident.
4. In brief, the facts of the case are:
The appellant claims to be aged about 50 years at the time of the accident. He was hale and healthy prior to the accident and proprietor of M/s. United Engineering Works, Mysore and an income tax assessee. That at about 6.15 p.m., on 18.2.2005, he met with an accident near Karnataka Bank, Regional Office towards Vijaya Bank, Kuvempunagar Branch on New Kantharaja Urs road when he was proceeding on his Honda Activa 4 vehicle bearing Reg.No.KA.09.ED.105 on account of the rash and negligent driving by the driver of the Maruthi car bearing Reg.No.KA.09.Q.7069 and sustained severe head injury and multiple fracture. Immediately, he was shifted to BGS Apollo Hospital, where he took treatment as inpatient for 40 days, underwent one surgery and thereafter, on the advise of the Doctor he has taken bed rest and follow up treatment.
5. It is the further case of the appellant that, he spent considerable amount towards medical and other incidental charges and on account of the injuries sustained by him, he has suffered permanent disability. The Doctor has assessed the disability at 20% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal, under Section 166 of M.V. Act, claiming compensation against the respondents.
6. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after 5 hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `4,14,370/- as compensation under different heads with interest at 6% p.a., except on future medical expenses from the date of petition till the date of deposit
7. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.
8. We have heard the learned counsel appearing for appellant. Notice to R1 & 2 is dispensed with vide order dated 9.4.2013 and R3 is served and unrepresented.
9. The submission of the learned counsel for the appellant, at the outset is that, the Tribunal, has erred in not awarding reasonable compensation towards, injury pain and sufferings, towards conveyance, nourishing food and attendant charges, and towards 6 loss of amenities, discomforts and unhappiness and in not awarding any compensation towards loss of income during treatment period and therefore, it requires to be modified. To substantiate the said submission, he submitted that, on account of the injuries sustained by the appellant as per Ex.P11-wound certificate, he took treatment as inpatient for 40 days, undergone one surgery and spent considerable amount towards conveyance, nourishing food and attendant charges and incurred financial loss as he could not have attended his work regularly. Further, he submits that, the income of the appellant assessed by the Tribunal at `5,000/- per month is on lower side and it has to be re- determined reasonably. Further he submits that, as per the evidence of PW2, appellant suffers from weakness in right side of the body and he has inability to squat, walk and difficulty in the movement of right knee and hip and he was walking with the support of crutch and there is shorting of right lower limb and as 7 per the evidence of PW3, there is mild right side weakness of both upper and lower limb and mild memory loss and occasional episodes of giddiness with headache. But these aspects of the matter has not been looked into or considered by the Tribunal. Therefore, he submitted that the impugned judgment and award is liable to be modified.
10. After hearing the learned counsel for the appellant and after perusal of the materials 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?
11. The occurrence of the accident and the resultant injuries sustained by the appellant are not in dispute. It is the case of the appellant that, he is aged about 50 years and proprietor of small scale industry and hale and healthy prior to the accident and earning 8 annual income of `1,20,000/- and an income tax assessee. But he has not produced any credible documents to establish his income. Therefore, the Tribunal is justified in assessing the income of the appellant at `5,000/- per month and we accept the same. Further, it emerges that, as per the evidence of PW2, appellant suffers from weakness in right side of the body and he has inability to squat, walk and difficulty in the movement of right knee and hip and he was walking with the support of crutch and there is shorting of right lower limb and as per the evidence of PW3, there is mild right side weakness of both upper and lower limb and mild memory loss and occasional episodes of giddiness with headache. Admittedly, it is not in dispute that, on account of the injuries sustained by the appellant, he has taken treatment as inpatient for 40 days, undergone surgery, and on the advice of the Doctor he might have taken bed rest and follow up treatment, atleast for six months and during the said 9 period, he might have undergone lots of pain and agony, might have spent considerable amount towards conveyance and other incidental charges and might have incurred financial loss as he could not have attended his work regularly. Further, in view of the injuries sustained by the appellant, he has suffered permanent disability. The Doctor has deposed that, appellant has suffered disability at 20% and it is permanent in nature, he has to suffer this disability through out his life and it would affect his happiness, comforts and amenities in future life. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Taking all these aspects into consideration, we award a sum of `75,000/- towards injury, pain and sufferings; `20,000/- towards conveyance, nourishing food and attendant charges, `30,000/- towards loss of income during the period of treatment at the rate of `5,000/- per month for six months and `1,50,000/- towards 10 loss of amenities, discomforts and unhappiness due to disability.
12. However, a sum of `3,24,370/- awarded towards medical expenses as e the medical bills produced by the appellant and `10,000/- awarded towards future medical expenses is just and proper and therefore, it does not call for interference.
In all, the appellant is entitled to the total compensation of `6,09,370/- instead of `4,14,370/- and the break- up is as follows:
Towards pain and sufferings ` 75,000/- Towards medical expenses ` 3,24,370/- Towards conveyance, nourishing food ` 20,000/- and attendant charges Towards loss of income during the ` 30,000/- period of treatment Towards loss of amenities, due to ` 1,50,000/- disability Towards future medical expenses ` 10,000/-
Total ` 6,09,370/-
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 11 20/02/2010 passed in MVC No.530/2009, by the Presiding Officer, Fast Track Court-II and Additional Motor Accident Claims Tribunal, Mysore, stands modified, awarding the compensation of `6,09,370/-
instead of `4,14,370/-. There would be an enhancement of `1,95,000/- with interest at 6% p.a., from the date of petition till its realization.
The 3rd respondent-Insurer is directed to deposit the enhanced compensation of `1,95,000/- with interest at 6% 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 deposit by the Insurer, out of the enhanced compensation of `1,95,000/-, a sum of `1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant in any Nationalized or Scheduled Bank, for a period of five years and renewable by another five 12 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.
The remaining sum of `95,000/- with proportionate interest shall be released in favour of appellant immediately.
Draw the award, accordingly.
SD/-
JUDGE SD/-
JUDGE tsn*