Karnataka High Court
Sri Asif Pasha @ Asifkherisihi vs Syed Amin K M on 4 July, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
Miscellaneous First Appeal No. 3017 of 2010 (MV)
BETWEEN
SRI. ASIF PASHA
@ ASIFKHERISIHI,
S/O. AMEERPASHA,
AGED ABOUT 25 YEARS,
R/A NO.224, NURANI MASJID ROAD,
ILLIYASNAGAR, J.P. NAGAR POST,
BANGALORE - 62.
... APPELLANT
(By Sri. K. T. GURUDEVA PRASAD, ADV.)
AND
1. SYED AMIN K. M.,
MAJOR,
NO.1722, V CROSS,
ROBERTSONPET, K.G.F
KOLAR DISTRICT - 563 122.
2. UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
SHANKARANARAYANA BUILDING,
M. G. ROAD, BANGALORE - 1.
BY ITS REGIONAL MANAGER.
... RESPONDENTS
2
(By Sri. A. RAVISHANKAR, ADV. FOR R.2,
R.1 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.10.2009 PASSED IN MVC
NO.1370/2008 ON THE FILE OF IX ADDITIONAL JUDGE,
MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
This appeal coming on for Admission, this day, the
Court, delivered the following:
JUDGMENT
This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
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4. As there is no dispute regarding injuries sustained by the claimant in a motor traffic accident occurred on due to rash and negligent riding of motor cycle bearing registration No. KA-02-ER-5583 by its rider and liability of the insurer of the said vehicle to pay compensation, the only point arises for consideration is:
Whether compensation awarded by the Tribunal is just and proper or does it call for enhancement ?
5. Learned counsel for the claimant submits it is a case of paraplegia and the claimant is confined to wheel chair and he needs an attendant for his day to day activities even for nature call and the Tribunal has committed an error in not considering this aspect of the matter while awarding compensation. In this regard he relied upon a judgment of the Apex Court in the case of Kavitha vs Keepak and Others reported in 2012 ACJ 2161. Thus, he prays for allowing the appeal by enhancing the compensation.
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6. Whereas learned counsel for the insurer submits the Tribunal considering all the aspects of the matter in detail has awarded just and reasonable compensation and there is no scope for enhancement of compensation awarded by the Tribunal.
7. As per Ex P 3 wound certificate the claimant has sustained fracture of Thorasic vertebral body, fracture of 7th, 8th ribs right side. It is the medical opinion if there is fracture of thorasic vertebral column there may be chance of paralysis of lower limb. Injuries sustained by the claimants are also evident from discharge summary Ex. P 6, out patient record Ex. P 15, IP record Ex. P 15, X-ray films Ex. P 16 and supported by oral evidence of the claimant and the doctor examined as PWs 1 and 2 respectively. PW 2 Dr. B.K. Sudhakanth who examined the claimant recently has opined the claimant's condition prevails the same i.e., paraplegia is present with complete loss of sensation below D 8. Mute 5 plantars below and bladder involvement with presence of catheter and for which posterior stabilization of D 7 to D 9 has been done. He has stated the claimant has suffered 90% disability to whole body.
8. Considering the nature of injuries sustained by the claimant a sum of Rs.1,50,000/- is awarded towards pain and suffering as against Rs.1,00,000/- awarded by the Tribunal under this head.
9. As Rs.1,40,000/- awarded by the Tribunal is based on the medical bills produced by the claimant there is no scope for enhancement under this head.
10. Claimant was treated as inpatient in Hosmat Hospital for 23 days. Considering the same Rs.20,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head. 6
11. Considering nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, a sum of Rs.1,50,000/- is awarded towards loss of amenities including loss of marriage prospects as against Rs.10,000/- awarded by the Tribunal .
12. The claimant claims to have been earning Rs.10,000/- by running a meet stall. He has produced licence at Ex P 12 in this regard. But, it does not show the actual monthly income of the claimant. Considering his age as 23 years, year of accident as 2008 and his business of running a meet stall his income could easily be assessed at Rs.5,000/- per month. The Tribunal though has observed that the injuries sustained by the claimant as paraplegia has committed an error in observing that the disability stated by the doctor at 90% to whole body is on the hither side. When it is a case of paraplegia he cannot do any work without the assistance of an 7 attendant as he is confined to wheel chair. To know the present condition of the claimant, he was summoned and he was present in the Court on an earlier occasion. The Court as well as the learned Counsel for the insurer had also seen his condition. The Court was satisfied it is a case of paraplegia and it is a fit case to consider the whole body disability at 90% as stated by PW 2 doctor. The multiplier applicable to the age group of the claimant is 18. Accordingly, loss of future income works out to Rs.9,72,000/- (Rs.5,000/- x 90% x 12 x 18) and it is awarded as against Rs.1,94,000/- awarded by the Tribunal under this head.
13. As per the evidence of the doctor the claimant has to dependant on an attendant in future for his day to day activities. Considering the same Rs.1,50,000/- is awarded towards future medical and attendant charges.
14. Thus, the claimant is entitled for the following compensation:
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1) Pain & suffering Rs.1,50,000/-
2) Medical expenses Rs.1,40,000/-
3) Incidental expenses Rs. 20,000/-
4) Loss of amenities
Including marriage prospects. Rs.1,50,000/-
5) Towards loss of future income Rs.9,72,000/-
6) Towards future attendant &
Medical expenses Rs.1,50,000/-
Total Rs.15,82,000/-
Less compensation awarded by the
Tribunal Rs. 5,07,400/-
Additional compensation Rs. 10,74,600/-
15. Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for additional compensation of Rs.10,74,600/- with interest at 6% p.a. from the date of claim petition till the date of realization.
16. The Insurance Company is directed to deposit the additional compensation amount with interest, within two 9 months from the date of receipt of a copy of this judgment, from which Rupees Nine lakhs with proportionate interest is ordered to be deposited in FD in the name of the claimant in any nationalized/scheduled Bank or post office for a period of twelve years, with a right of option to renew it from time to time and withdraw interest periodically and the remaining amount is ordered to be released in his favour. The Tribunal while releasing remaining compensation is also directed to issue F.D.slip to the claimant to enable him to withdraw the amount on its maturity without approaching the Tribunal once again. The concerned Bank is also directed to release the F.D.amount on its maturity without insisting for any order from the Tribunal.
No order as to costs.
SD/-
JUDGE Vb/-
CT: bs*