Karnataka High Court
E Venkataiah vs The Manager on 21 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.976/2011 (MV)
BETWEEN:
E.VENKATAIAH
S/O DODDAHUDUGAIAH
AGED ABOUT 40 YEARS
KALLAREKOPPALU
KATTAYA HOBLI
HASSAN TALUK & DISTRICT ..APPELLANT
(BY SMT.KAVITHA H.C., ADVOCATE)
AND:
1.THE MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
MADIKERI
REPRESENTED BY
THE MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
SUBHASH CHOWK, IST PHASE
HASSAN
2.C R THEERHANANDA
S/O PUTTAPPA,
MAJOR
R/O MULLURU VILLAGE
2
HOSAKOPPALU
SHANIVARASANTHE HOBLI
SOMAVARPETE TALUK
KODAGU DISTRICT ..RESPONDENTS
(BY SRI.P.B.RAJU, ADVOCATE FOR R-1, NOTICE TO R-2 IS
DISPENSED WITH VIDE ORDER DATED 08.04.2011)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 21.08.2010 PASSED
IN MVC NO. 1179/2007 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN), MEMBER, ADDL. MACT, HASSAN, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a claimant's appeal questioning the correctness and legality of the judgment and award passed in MVC.No.1179/2007 dated 21.08.2010 by the MACT, Hassan and seeking for enhancement of compensation.
2. I have heard the arguments of learned Advocates appearing for the parties and perused the records secured from the tribunal.
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3. Facts in brief leading to the filing of this appeal are as under:
On account of a road traffic accident that occurred on 31.03.2007 claimant contended that he had sustained injuries and suffered consequential disability and as such, claiming compensation of `6,00,000/- a petition under Section 166 of Motor Vehicles Act, 1988 came to be filed.
Insurer on service of notice appeared and filed its statement of objections and averments made in the claim petition came to be denied. The owner of the offending vehicle though appeared before the tribunal did not file statement of objections.
4. On the basis of the pleadings of the parties, Tribunal has framed issues for its determination and on evaluation of the evidence both oral and documentary tendered, Tribunal has allowed the claim petition in part. Not being satisfied with compensation awarded by Tribunal, claimant has filed this appeal seeking for enhancement. 4
5. Accident in question, injuries sustained by claimant, issuance of policy to the offending vehicle in question and same being in vogue as on the date of accident are facts which are not in dispute. Hence, they are not delved upon in this appeal as it would be repetition of facts.
6. Tribunal on appreciation of evidence has awarded a total compensation of `1,42,000/- under the following heads:
1. Medical expenses ` 1,000=00
2. Pain, injuries and sufferings ` 15,000=00
3. Loss of future earnings `1,08,000=00
4. Loss of amenities and enjoyment in life ` 10,000=00
5. Conveyance, nourishment and attendant charges ` 5,000=00
6. Loss of earnings during the period of treatment and rest ` 3,000=00
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TOTAL `1,42,000=00
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7. Perusal of the records of tribunal would indicate that claimant had sustained grievous injuries to his head, right leg, chest and abdomen. This is evidenced from wound certificate Exhibit P-3. Claimant was admitted to Sri.Chamarajendra Hospital, Hassan (HIMS -Hassan Institute of Medical Science) for being treated for the injuries sustained by him in the road traffic accident that occurred on 31.03.2007. Claimant has undergone surgery on Laparotamy on 04.04.2007 as evidenced from inpatient case sheet Exhibit P-5. Doctor who treated the claimant has been examined as PW-2. In his examination in chief he has stated that claimant was treated with antibiotics, fluids and analgesics on emergency basis. It would also indicate that small intestine was found gangrenous with Haemoperitoneum of 500 ml of blood. It is also on record that blood transfusion was carried out after the surgery and two bottles was transfused.
Claimant developed infection on 5th operative day. After a period of one month i.e., 26.04.2007 he came to be discharged. Doctor has also opined that claimant had 6 developed incisional hernia, malnutrition and anemic on account of important part of the body namely intestine which is necessary for absorption of nutrients being damaged. He has opined in conclusion that whole body permanent disability to the claimant is about 50-55%. He further states that claimant cannot take and digest food as before operation and he also cannot perform the work as he was carrying on before on account of injures sustained by him.
8. It is the contention of Sri.P.B.Raju, learned counsel appearing for insurer that on account of there being no documentary evidence available on record between the period of discharge till date of treatment (for two years) it cannot be concluded that disability sustained by claimant is on account of the nature of injuries sustained in the road traffic accident. He would elaborate his submission by contending that it is attributable to medical negligence or negligence of the claimant himself. Though this argument looks attractive at the first blush it does not appear to be so when records are 7 perused. Medical records available on file namely inpatient case sheet, Exhibit P-5 as also doctor evidence namely PW-2 when read along with the injuries and wound certificate Exhibit P-3, the one and only conclusion that could be drawn is claimant had sustained grievous injuries to the abdomen resulting in gangrene having developed to the small intestine. Hence, medical evidence available on record which is corroborated by oral testimony of PW-2 could not have been disbelieved by tribunal and thereby substituting its view to arrive at the disability at 20% that too by discarding the disability assessed by doctor at 50-55%. There was no other evidence available on record to discard the expert's evidence. The basis on which tribunal has arrived at the disability of 20% is not supported by reasons. In that view of the matter I am of the considered view that finding recorded by tribunal by construing the disability at 20-25% is liable to be rejected and accordingly it is hereby set aside. Though Smt.Kavitha, learned counsel for claimant would contend that income of the claimant construed by the tribunal is on the lower side 8 namely `3,000/- P.M and it ought to have been taken at `4,500/- P.M. I am not inclined to accept the same since accident in question has occurred in the year 2007 and this court has consistently held that wages earned by an agricultural coolie in the year 2007 was `100/- per day or `3,000/- per month. In that view of the matter compensation awarded towards `loss of future income' requires to be recomputed by construing the disability at 50% and income at `3,000/- P.M. Medical records would also indicate that claimant had suffered `pain and agony' on account of these injuries sustained by him and infact is continuing to suffer as opined by doctor PW-2 and as such compensation of `15,000/- towards `pain, injuries and sufferings' awarded by the tribunal being abysmally on the lower side same requires to be enhanced. On account of the intestine being damaged, doctor has opined that claimant is unable to even consume regular food and digest and as such loss of comfort in life requires to be suitably compensated by awarding just and reasonable compensation under the head `loss of amenities', 9 though has been considered by tribunal it has awarded a meager sum of `10,000/- and as such same also requires to be enhanced.
9. Nature of injuries sustained by claimant would indicate that he would have been unable to attend to his normal duties/chores atleast for a period of five months. Hence, it requires to be suitably compensated atleast for five months and not for one month as held by the tribunal. Undisputedly even according to case sheet Exhibit P-5 claimant was an inpatient at Sri.Chamarajendra Hospital, Hassan from 31.03.2007 to 26.04.2007 i.e., for a period of 26 days. Claimant is a resident of Kallarekoppalu Village, Kattaya Hobli, Hassan Taluk and during the period of hospitalization not only claimant would have expended amount towards food, nourishment, conveyance and attendant charges but those persons who would have attended to the claimant during the period of hospitalization would also have spent amount towards the same. Hence, I 10 am of the considered view that at the rate of `500/- per day compensation if awarded for 26 days it would meet the ends of justice and accordingly it is hereby awarded. Thus, claimant would be entitled for following additional compensation:
SL.NO. DESCRIPTION AMOUNT
1. Loss of future earning
3,000x50%
100
1500x12x15 `2,70,000
Less awarded by
Tribunal `1,08,000
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Balance (additional) `1,62,000=00
2. Pain and suffering (additional) ` 35,000=00
3. Loss of amenities (additional) ` 25,000=00
4. Loss of income during laid up
period 3,000x5=15,000.00
Less awarded by
Tribunal 3,000.00
------------
Balance (additional) `12,000=00
5. Food, nourishment, nutrition,
attendant and incidental charges
500x26 = 13,000
Less awarded by
tribunal 5,000
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Balance (additional) `8,000=00
TOTAL `2,42,000=00
Thus, claimant would be entitled to a additional compensation of `2,42,000/-.
For the reasons aforestated, following order is passed:
ORDER (1) Appeal is hereby allowed in part. (2) Judgment and award passed by MACT, Hassan in MVC No.1179/2007 dated 21.08.2010 is hereby modified and an additional compensation of `2,42,000/- is hereby awarded which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit whichever is earlier.
(3) Out of the additional enhanced compensation a sum of `1,50,000/- with proportionate interest 12 shall be kept in Fixed Deposit in any Nationalised Bank or Scheduled Bank of appellant's choice for a period of three years.
Balance `92,000/- with proportionate interest shall be released in favour of claimant.
Claimant would be entitled to withdraw interest on Fixed Deposit.
(4) Insurance company shall deposit the compensation with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE SBN