Karnataka High Court
Smt. Shashi K V W/O Late S S Prasanna vs Sri Suresh Pujari on 13 June, 2014
Bench: N.K.Patil, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE, 2014
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
Misc.First Appeal No.11595/2012 (MV)
BETWEEN:
Smt. Shashi. K.V.,
W/o. Late S. S. Prasanna,
Aged about 40 years,
Residing at: No.25, II Cross,
Panchavati Colony,
Shimoga - 4. .... Appellant
(By Sri. S. Nischal, Adv.)
AND:
1. Sri. Suresh Pujari,
S/o. Channappa Pujari,
Aged Major,
Residing at : Puja Nilaya,
Byndur Road,
Honnavara - 575 002.
2. Sri. Nelson Pereira,
Aged Major,
Residing at No.25, 14/863, Farrar Colony,
Valencia,
Mangalore - 575 003.
3. M/s. The Oriental Insurance Co. Ltd.,
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Branch Office 1,
3rd floor, Krishna Prasad Building
above Pabbas, M. G. Road,
Lalbhag,
Mangalore - 575 003.
Represented by its
Managing Director.
4. Sri. Gururaj,
S/o. Sri. Rama,
Aged major,
Residing at : Sri Guru Narasihma Krupa,
6th Cross, 1st Stage,
Vinobha Nagar,
Shimoga - 4.
5. The New India Assurance Co. Ltd.,
Branch Office,
Mallappa Complex,
B. H. Road,
Shimoga - 4,
Represented by its
Managing Director. ... Respondents
(By Sri. Girish Kodgi, Adv. for R.3,
Sri. E. I. Sanmathi, Adv. for R.5,
R.2, R.4 - Served,
R.1 notice dispensed with vide order dt. 13.6.2014)
* **** *
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 18.04.2012 PASSED
IN MVC NO.825/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, ADDITIONAL MACT IV,
SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
This M.F.A. coming on for Orders this day,
N.K. PATIL J., delivered the following:
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JUDGMENT
Though this matter is listed in the orders list, it is taken up for final disposal with the consent of the learned counsel appearing for both the parties.
2. This appeal by the claimant is directed against the impugned judgment and award dated 18.04.2012 passed in MVC No.825/2009 on the file of Presiding Officer, Fast track Court-III, Additional MACT-IV, Shivamogga (hereinafter referred to as 'Tribunal' for short).
3. By its judgment and award, the Tribunal has awarded a sum of Rs.2,26,120/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by her in the road traffic accident.
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4. On account of the accidental injuries, she filed a claim petition under Section 166 of MVC Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal.
5. It is case of the appellant that, she was aged about 34 years as on the date of accident, hale and healthy prior to the accident and was a Homemaker. On 14.3.2009 at about 5.00 p.m. while the appellant was proceeding from Shivamogga to Mangalore in a Taxi -Passenger car bearing Regn.No.KA-14/A-3038 near Haleyangadi, Mangalore Taluk on NH-17, the driver of bus bearing Regn.No.KA-19/AB-4001 drove the same in a rash and negligent manner and dashed against the Tata Indica car in which appellant and others were proceeding. Due to the said accident, the appellant sustained the following grievous injuries: 5
1. Lacerated wound measuring 9 cm x 2 cm muscle deep, over inner aspect of right shoulder above the collar bone.
2. Fracture of end of left humerus.
3. Fracture of shafts of right femur at upper one third and other injuries.
6. It is her further case that she took treatment at A.J.Hospital, Mangalore as in-patient for about one month and underwent surgery for fracture of left humerus and also sustained injuries to right femur. The implants were fixed and was discharged. Subsequently, she took treatment on several occasions as in-patient and also as outpatient. The Doctor who has treated the claimant has assessed the disability at 25% to the right lower limb and left upper limb but in the cross examination has admitted that whole body disability will be 15%. Due to the accident, she has suffered mental shock and agony 6 and has to suffer discomfort unhappiness for the rest of her life.
7. The Tribunal, after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.2,26,120/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realisation.
8. Being dissatisfied with the quantum of compensation awarded by the Tribunal, so far as it relates to pain and suffering, medical expenses including conveyance, nourishment and other incidental expenses, future medical expenses, loss of earnings during laid up period, loss of future earning capacity, loss of amenities, discomfort and unhappiness and disability on account of the injuries sustained in the road traffic accident, appellant has 7 presented this appeal seeking enhancement of compensation.
9. The submission of the learned counsel appearing for the appellant at the outset is that, the income taken at Rs.3,000/-p.m. is on the lower side. The Tribunal has erred in not awarding reasonable compensation towards pain and suffering, medical expenses and conveyance, nourishing food and attendant charges and future medical expenses. To substantiate his submission, he pointed out that, the appellant has undergone treatment in the hospital as in-patient for about 30 days and also undergone one surgery on account of the injuries sustained in the road traffic accident. The Doctor who has treated the appellant has issued wound certificate as per Ex.P.17 and has adduced evidence stating that the appellant has suffered disability at 15%. Further, he submits, reasonable amount may be awarded towards removal 8 of implants and also towards future medical expenses. Therefore, he submits that, the impugned judgment and award passed by the Tribunal is liable to be modified, awarding just and reasonable compensation.
10. Per contra, learned counsel appearing for the third respondent-Insurer, inter alia, contended and substantiated the impugned judgment and award passed by the Tribunal stating that, after due consideration of entire material available on record, the Tribunal has awarded reasonable compensation under different heads and it does not call for interference.
11. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the materials available on record, including the impugned judgment and award passed 9 by the Tribunal, the only point that arises for consideration is:
"Whether the quantum of
compensation awarded by the
Tribunal is just and reasonable?"
12. It is an undisputed fact that the appellant has sustained injuries in a road traffic accident that occurred on 14.03.2009 and the liability has been admitted by the insurer. The Tribunal has taken the monthly income of the appellant being a homemaker, at Rs.3,000/- which is on the lower side having regard to the year of accident. Thus, we can safely re-assess the monthly income at Rs.4,500/- as her monthly income instead of Rs.3,000/- assessed by the Tribunal.
13. The Tribunal after, appreciation of the oral and documentary evidence available on record taking into consideration the age, avocation, nature of 10 injuries sustained and nature and duration of treatment, has awarded Rs.70,000/- towards pain and suffering, Rs.35,000/- towards medical expenses, conveyance, nourishing food and other incidental expenses & nursing charges, Rs.20,000/- towards loss of amenities, Rs.69,120/- towards loss of future income, Rs.12,000/- towards loss of earning during laid up period for a period of four months by taking notional income as Rs.3,000/- p.m. The same is on the lower side. We accept the disability at 18% to the whole body having regard to the injuries sustained by the appellant. Due to the injuries suffered, the appellant has to undergo follow-up treatments periodically and mental agony. The pain and suffering may aggravate at the old age. These aspects have to be looked into while awarding compensation towards loss of amenities, discomfort and unhappiness and permanent disability. Hence, it requires re-consideration by enhancing reasonably.
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14. Taking all these relevant facts into consideration, we deem it fit to take monthly income of the appellant as Rs.4,500/- instead of Rs.3,000/- per month taken by the Tribunal. For this age of the appellant the proper multiplier applicable is '16' in the light of the Apex Court Judgment in Sarla Verma's case (2009 ACJ 1298). Further, having regard to the nature of injuries suffered by the appellant and the agony he has to undergo in future, we deem it fit to award Rs.80,000/- towards pain and suffering, Rs.50,000/- towards medical expenses including conveyance, nourishing food and attendant charges, Rs.13,500/- towards loss of earning during laid-up period (Rs.4,500/- x 3) Rs.50,000/- towards loss of amenities and Rs.1,55,520/-(Rs.4,500/- x 12 x 18/100 x16) towards loss of future earning capacity. However, Rs.20,000/- awarded by the Tribunal 12 towards future medical expenses does not call for interference.
15. Having regard to the facts and circumstances of the case as stated above, the instant appeal is allowed in-part. The impugned judgment and award dated 18.04.2012 passed by the Tribunal in MVC No.825/2009 is hereby modified. The total compensation payable comes to Rs.3,69,020/-, as against Rs.2,26,120/- and the break- up is as follows:
1. Towards pain and suffering Rs. 80,000/-
2. Towards medical expenses & Rs. 50,000/-
Conveyance, nourishing food & attendant charges.
3. Loss of income during Rs. 13,500/- Treatment period
4. Loss of amenities Rs. 50,000/-
5. Towards loss of future income Rs.1,55,520/-
6. Towards future medical Rs. 20,000/-
Expenses
Total Rs.3,69,020/-
Enhanced compensation comes to Rs.1,42,900/- with interest at 6% p.a. The 3rd respondent-Insurer 13 is directed to deposit the enhanced compensation of Rs.1,42,900/- with interest at 6% p.a., from the date of petition till the date of realization.
Out of total enhanced compensation, Rs.1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant for a period of ten years and renewable for another five years, with liberty to her to withdraw the interest accrued on it periodically. The remaining Rs.42,900/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the Insurer.
Draw up the award accordingly.
SD/-
JUDGE SD/-
JUDGE Sk/-