Karnataka High Court
Sri Kaushik Roy vs Azeez on 12 August, 2013
Bench: N.K.Patil, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF AUGUST, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
M.F.A.No. 9457 OF 2010 (MV)
Between:
Sri. Kaushik Roy,
S/o. Anath Bondh Roy,
Aged about 23 years,
Occ: Earlier Engineer Student,
Now discontinued his studies due to
Accidental Injury,
R/o. Roy Bhavan, Vill + P.O Nuni,
(Asansol) DT- Burdwan,
West-Bengal State,
Pin-713 341.
...Appellant
(By Sri. Gangadhar.G.D, Advocate)
And :
1. Azeez S/o. M.D.Jilani,
Aged about 34 years,
Driver of the bus bearing
Reg. No.KA-36/3628,
Badge No.2304,
Raichur Depot,
L.B.S. Nagar,
Raichur District.
2
2. M.Mallikarjuna Rao,
S/o. Late Krishna Murthy,
Aged about 47 years,
Owner of the bus bearing
Reg. No.KA-36/3628,
R/o. No.L 204,
Nijalingappa Colony,
Raichur.
3. The New India Assurance Co., Ltd.,
Punnam Chander Complex,
Chowrastha,
Hanamakonda-506 011,
Warrangal District.
Now rep. by its
Divisional Manager,
Divisional Office,
No.XII (672300),
I Floor, Mayur Complex,
KIADB Main Road, Peenya,
Bangalore-58.
4. The Divisional Controller,
Divisional Office,
(NWKRTC),
KSRTC., Depot,
Raichur.
5. The Managing,
Director/Chairman,
KSRTC., Sarige Bhavana,
K.H.Road, Bangalore.
...Respondents
(By Sri. D.Vijayakumar, Advocate for R4;
Sri. P.S.Jagadish, for Sri. P.B. Raju, Advocate for R3;
Notice to R1 & R2 dispensed with v/o. dated 04/07/2013)
This MFA is filed U/S 173(1) of MV Act against the
judgment and award dated: 28/06/2010 passed in MVC
No.518/2008 on the file of the Additional Civil Judge(Sr.Dn)
3
and C.J.M., Tumkur, 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:
This is a claimant's appeal against the impugned judgment and award dated 28/06/2010 passed in MVC No.518/2008, by the Additional Civil Judge(Sr.Dn) and C.J.M., Tumkur, (for short ' Tribunal'), for enhancement of compensation.
2. By its judgment and award, the Tribunal has awarded a sum of `5,24,137/- under different heads with interest at 6% p.a., from the date of petition till realization as against the claim made for a sum of `40,00,000/-, on account of the injuries sustained by him in the road traffic accident, fastening liability on respondent Nos. 4 and 5
3. In brief, the facts of the case are:
The appellant claims to be aged about 21 years at the time of the accident. He was hale and healthy 4 prior to the accident, he was an Engineering student studying at Sri. Siddaganga Institute of Technology, Tumkur. He met with an accident on 26.6.2007 at about 9.30 p.m. when he along with his friend Niranjan was returning from a dinner in a motor cycle bearing Reg.No.KA.17.R.4999 near Delux Woodlands Hotel on account of the rash and negligent driving by the driver of the bus bearing Reg.No.KA.36.3628 and sustained injuries, namely, right temporal bone fracture, fracture of zygomatic bone, right optic neuropoly, resultant of screw with hypertonium, fracture of both bones of left leg multiple laceration over fall, laceration of liver and black eye of both sides. Immediately, he was shifted to Rajalakshmi nursing home, Tumkur then to Manipal hospital, where he took treatment as inpatient from 27.6.2007 to 29.7.2007, under gone operations, implants were inserted and thereafter, on the advise of the Doctor he has taken bed rest and follow up treatment.5
4. It is the further case of the appellant that he spent considerable amount towards medical and other incidental expenses. On account of the injuries sustained by the appellant, he has suffered permanent disability. Taking all these aspects into consideration, appellant has filed a claim petition before the Tribunal, under Section 166 of M.V. Act, claiming compensation against the respondents.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `5,24,137/- as compensation under different heads with interest at 6% p.a., from the date of petition till the date of realization, fastening liability on R4 and 5.
6. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant 6 has presented this appeal, seeking enhancement of compensation.
7. We have heard the learned counsel appearing for appellant and learned counsel for respondent Nos. 3 and 4.
8. Learned counsel appearing for the appellant, at the outsets submitted that, the Tribunal has erred in not assessing reasonable income of the appellant, as he was an Engineering Student, studying in 3rd semester at SIT Tumkur who originally hales from West Bengal. Further, he submits that in the accident appellant has sustained 8 injuries as per wound certificate, out of which injury Nos. 1 to 7 are grievous in nature and injury No.8 is simple in nature. He has examined the Doctor, who has assessed the disability at 30% to eye and at 10% to disfiguration of face and on account of which, he has discontinued his studies. Further, he submits that the Tribunal has erred in not awarding any compensation towards loss of education, towards 7 discomforts and unhappiness and towards loss of marriage prospects. Further, he submits that liability fastened on the respondent Nos. 4 and 5 has been modified by this Court by its judgment dated 22.1.2013 in MFA No.2959/2011 filed by the Corporation, by fastening the same on R2 and 3 owner and insurer of the bus. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified, by awarding reasonable compensation and by setting aside the liability fastened on R4 and 5 and by directing the R3 to indemnify the award amount.
9. As against this, learned counsel for the 3rd respondent, inter-alia, contended and substantiated that the judgment and award passed by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and taking into consideration the year of the accident and nature of injuries sustained by the appellant and therefore, it does not call for interference. However, he 8 fairly submitted that the compensation towards conveyance, nourishing food and attendant charges, towards loss of education for one academic year and towards disability may be considered in accordance with law. Further he submits that in the light of the judgment dated 22/1/2013 passed by this Court in MFA No.2959/2011, regarding liability, the same may be considered in accordance with law.
10. After hearing the learned counsel for the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for our consideration is:
(i) Whether the liability fastened by the Tribunal on R4 and 5 is sustainable in law?
(ii) Whether the compensation awarded by the Tribunal is just and reasonable?9
Re.Point No.1:
11. The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex.P6 as referred above are not in dispute. It is also not in dispute that appellant was an Engineering Student studying in 3rd semester in SIT Tumkur. It is the submission of the learned counsel for appellant that, the Corporation has filed an appeal before this Court being aggrieved impugned judgment and award against the appellant and others including R3-Insurer in MFA No.2959/2011, which was disposed of by the learned Single Judge on 22/1/2013 following the judgment of the Apex Court in the matter of UPSRTC Vs. Kulsum and others reported in (2011) 3 SCC (CRI) 376 (2011) 7 SCC 142, has reversed the finding of the Tribunal in expunging the liability to pay compensation on 3rd respondent and saddling the same on 4th and 5th respondents and accordingly, allowed the said appeal and modified the judgment and award passed in MVC 10 No.518/2008 dated 28.6.2010 passed by the Tribunal, so far as it pertains to saddling the liability on NEKRTC and saddling the liability to pay the same on respondent No.2 owner and respondent No.3,Insurance company jointly and severally. There is some substance in the submission of the learned counsel for the appellant. After careful perusal of the judgment dated 22/1/2013 passed by the learned Single Judge in MFA No.2959/2011, wherein the appeal filed by the 4th respondent-Corporation was allowed and the judgment and award passed in MVC No.518/2008, so far as it pertains to saddling the liability on Corporation has been modified, saddling the liability on R2 and 3 in the appeal jointly and severally and we accept the same and accordingly, modify the liability saddled on NEKRTC and fastening the liability to pay the same on R2-owner and R3-Isurance Company jointly and severally. 11
Re.Point No.2:.
12. It is the submission of the learned counsel for appellant that, compensation awarded by the Tribunal towards conveyance, nourishing food and attendant charges is inadequate and it has failed to award any compensation towards loss of marriage prospects, loss of education for one year and towards loss of future earnings due to disability. Therefore, it needs to be awarded reasonably. Admittedly, on account of the injuries sustained by the appellant, he has taken treatment as impatient for about one month in different hospitals, undergone surgeries, implants were inserted. During the period of treatment, he would have spent considerable amount towards conveyance, nourishing food and attendant charges and he would lost his education as he could not have attended his classes regularly. Further it can be seen that on account of the injuries sustained by him, he has suffered permanent disability. To prove the same he has examined the 12 Doctor as PW2, who after several test has opined that there is loss o vision in the right eye due to optical neuropathy and appellant is having permanent disability of right eye to the extent of 30%. He has also produced Ex.P24-Certificate of disability issued by the Medical Board, Tumkur which shows that appellant is having 30% physical disability due to loss of right eye sight and another 10% for facial disfiguration. To meet the ends of justice, we assess the disability at 20% to the whole body. Having regard to his age, qualification and the year of accident, we assess his income at `6,000/- per month. The proper multiplier applicable is '18' since he was aged about 21 years. Discomforts and unhappiness persists through out his life, it would affect his earning capacity and it would also affect his marriage prospects. Taking all these factors into consideration, we award a sum of `30,000/- towards conveyance, nourishing food and attendant charges as against `24,444/-, `50,000/- towards loss of education, 13 `50,000/- towards loss of marriage prospects, `2,59,200/- (6,000/- x 12 x 18 x 20/100) towards loss of future earnings due to disability.
13. However, the Tribunal has justified in awarding a sum of `1,20,000/- towards injury, pain and sufferings, `2,59,693/- towards medical expenses, `75,000/- towards loss of amenities, `45,000/- towards future medical expenses and therefore, it does not call for interference.
14. Thus, in all, the appellant is entitled to the total compensation of `8,88,893/- instead of `5,24,137/- and the break- up is as follows:
Towards pain and sufferings ` 1,20,000/- Towards medical expenses ` 2,59,693/- Towards conveyance, nourishing food ` 30,000/-
and attendant charges
Towards loss of education ` 50,000/-
Towards loss of amenities, due to ` 75,000/-
disability
Towards loss of future income due to ` 2,59,200/-
disability
Towards loss of marriage prospects ` 50,000/-
Towards future medical expenses ` 45,000/-
Total ` 8,88,893/-
14
15. 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 28/06/2010 passed in MVC No.518/2008, by the Additional Civil Judge (Sr.Dn) and C.J.M., Tumkur, stands modified, by setting aside the liability fastened on R4 and 5 by fastening the same on R2 and 3 and by awarding the compensation of `8,88,893/- instead of `5,24,137/-. There would be an enhancement of `3,64,756/- with interest at 6% p.a., from the date of petition till its realization.
The 3rd respondent is directed to deposit the enhanced compensation of `3,64,756/- 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.
15
Immediately on deposit by the 3rd respondent, out of the enhanced compensation of `3,64,756/-, a sum of `2,00,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant, for a period of ten years and renewable by another five years, with liberty reserved to him to withdraw the interest accrued on it, periodically.
The remaining sum of `1,64,756/- with proportionate interest shall be released in favour of appellant immediately.
Draw the award, accordingly.
SD/-
JUDGE SD/-
tsn* JUDGE