Karnataka High Court
Sheshappa vs The Oriental Insurance Co Ltd on 15 November, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
ON THE 15TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
MFA Nos. 7869/2008, 7870/2008 & 8413 OF 2008(MV)
M.F.A.NO.7869/2008
BETWEEN
SHESHAPPA, 21 YEARS,
S/O BASAPPA, RUPENA AGRAHARA,
GULBARGA COLONY,
MADIVALA, BANGALORE -68
... APPELLANT
(BY SHRI.SHRIPAD V.SHASTRI, ADVOCATE )
AND :
1 THE ORIENTAL INSURANCE CO.LTD
DIVISIONAL OFFICE II,
KHENY BUILDING NO.3,
1ST CROSS, 1ST FLOOR,
GANDHINAGAR, BANGALORE -9
BY ITS MANAGER.
2 B.E.VEERABADHRAPPA,
S/O ESHAPPA,
BOMMANAGUNDANKERE,
MAHAKALMUR, CHITRADURGA
... RESPONDENTS
(SHRI.M.U. POONACHA, ADV. FOR R1,
R2 - SERVED)
2
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.4.2008 PASSED IN
MVC NO.1255/2007 ON THE FILE OF XVIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER ,MACT-4,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION ETC.
M.F.A. No.7870/2008
BETWEEN:
GOWRAMMA, 26 YEARS,
W/O ESHWARA,
RUPENA AGRAHARA,
GULBARGA COLONY,
MADIVALA,
BANGALORE -68.
...APPELLANT
(BY SHRI.SHRIPAD V.SHASTRI, ADVOCATE )
AND :
1 THE ORIENTAL INSURANCE CO.LTD
DIVISIONAL OFFICE II,
KHENY BUILDING NO.3,
1ST CROSS, 1ST FLOOR,
GANDHINAGAR, BANGALORE -9
BY ITS MANAGER.
3 B.E.VEERABADHRAPPA,
S/O ESHAPPA,
BOMMANAGUNDANKERE,
MAHAKALMUR, CHITRADURGA
... RESPONDENTS
(SHRI.M.U. POONACHA, ADV. FOR R1,
R2 - SERVED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.4.2008 PASSED IN
MVC NO.1256/2007 ON THE FILE OF XVIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER ,MACT-4,
3
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION ETC.
M.F.A.No.8413/2008
BETWEEN:
PADMAMMA, 46 YEARS,
W/O LATE NINGAPPA,
RUPENA AGRAHARA,
GULBARGA COLONY,
MADIVALA, BANGALORE -68.
...APPELLANT
(BY SHRI.SHRIPAD V.SHASTRI, ADVOCATE )
AND :
1 THE ORIENTAL INSURANCE CO.LTD
DIVISIONAL OFFICE II,
KHENY BUILDING NO.3,
1ST CROSS, 1ST FLOOR,
GANDHINAGAR, BANGALORE -9
BY ITS MANAGER.
4 B.E.VEERABADHRAPPA,
S/O ESHAPPA,
BOMMANAGUNDANKERE,
MAHAKALMUR, CHITRADURGA
... RESPONDENTS
(SHRI.M.U. POONACHA, ADV. FOR R1,
R2 - SERVED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11.4.2008 PASSED IN
MVC NO.1257/2007 ON THE FILE OF XVIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION ETC.
4
THESE APPEALS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Aggrieved by the common judgment and award dated 11.4.2003 passed by the M.A.C.T., Court of Small Causes, Bangalore, these appeals are filed seeking enhancement.
2. M.F.A.No. 7869/2008 (M.V.C.No. 1255/2007) M.F.A.No.7870/2008(M.V.C.No.1256/2007), M.F.A.No. 8413/2008(M.V.C.No. 1257/2007) pertain to the same accident, hence they are heard together.
3. On 5.2.2007, at about 5.15 p.m., the claimants in these appeals were travelling in a tempo bearing No.KA- 05-A -7131, on the Bangalore - Chitradurga road, on NH 19, when a lorry bearing No.KA16-A-3946 came in a high speed in a rash and negligent manner and dashed against the tempo, as a result, they sustained injuries. They filed claim petitions claiming compensation.
4. In M.F.A.No.7869/2008 (M.V.C.No.1255/2007), the Tribunal awarded compensation of Rs. 1,89,200/- under various heads which is as follows; 5 1 Pain and suffering Rs.30,000/-
2 Loss of amenities of life Rs.15,000/- 3 Medical and incidental Rs.35,000/-
charges 4 Loss of earning for the Rs.12,000/-
laid up period 5 loss of future earning Rs.97,200/-
due to disability
Total Rs.1,89,200/-
5. The accident and liability are admitted. The accident is of the year 2007. The claimant is stated to be a coolie. P.W.9, the doctor who examined the claimant has stated that he suffered fracture of L1 Vertebrae with paraplegia and he was treated with surgery. Since then he is under follow up treatment. On subsequent examination, he found that the claimant complaining of pain in the back and he noticed that there is a motor sensory paralysis of both the lower limbs amounting to the whole body disability at 45% . The Tribunal however held the disability at 15% to the whole body. In my view, the same is wholly inappropriate.
6. Further, P.W.4 has stated that there is a permanent disability of 90% due to sensory paralysis of both the lower limbs and whole body disability at 45% . 6 However, the Tribunal held the same at 15%, which is unacceptable. In view of the clear and cogent evidence that the claimant has lost sense of both his limbs and he is not in a position to work, it would be appropriate to hold the disability at 100%. In view of the decision of the Hon'ble Supreme Court in the case of RAMACHANDRAPPA VS- THE MANAGER, ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LTD., reported in AIR 2011 SC 2951, I hold the income at Rs. 5,000/- per month. He was 18 years at the time of the accident. Hence, the proper multiplier would be '18'. The loss of income due to disability works out as follows;
"Rs.5,000x 12x18x100% =10,80,000/-".
7. Towards loss of amenities, having lost sensation in both the lower limbs at such a tendered age, only a sum of Rs.15,000/- is awarded. The same is enhanced by a further sum of Rs.1,00,000/-. The amount awarded towards medical and incidental charges is undisturbed. The amount awarded towards loss of earning during laid up period stands deleted. The evidence would necessarily show that he would require an attendant throughout his life for his day to day needs. In the circumstances, 7 towards attendant charges, it would be appropriate to hold a sum of Rs.2,000/- per month. In view of the multiplier adopted so far as the age of the claimant is concerned, the same multiplier is adopted while calculating the compensation towards attendant charges, which works out as follows;
" Rs.2,000 x 12 x 18 = 4,32,000"
8.Hence, the appellant/claimant in M.F.A.No.7869/2008 (M.V.C.No.1255/2007) is entitled to a compensation of Rs.16,77,000/-(Rs.1,89,200/- plus Rs.14,87,800/-) on the following heads;
1 Pain & suffering Rs. 30,000/-
2 Loss of amenities Rs. 1,00,000/-
3 Conveyance, nourished Rs. 35,000
food and incidental
expenses
4 Attendant charges Rs. 4,32,000/-
5 Loss of income due to Rs.10,80,000/
disability
Total Rs.16,77,000
The enhanced amount (excluding the amount awarded towards future medical charges) carries interest at 6 % 8 per annum. A sum of Rs.10,00,000/- along with interest shall be kept in a Fixed Deposit in any nationalized bank for a period of 5 years. The rest of the amount along with interest shall be paid to the claimant.
9. In M.F.A.No.7870/2008 (M.V.C.No.1256/2007), The Tribunal has awarded compensation of Rs.1,10,800/- under the following heads ;
1 Pain and sufferings Rs.25,000/-
2 Loss of amenities and Rs.10,000/-
happiness 3 Medical and incidental Rs. 5,000/-
charges 4 Loss of earnings during Rs. 6,000/-
the period of treatment 5 Loss of future earnings Rs.64,800/-
due to disability
Total Rs.1,10,800/-
10. The claimant is stated to be a coolie aged about 25 years. The doctor has stated that she has got pain in both lower limbs and deformity of the back and she was not able to walk without support. She has suffered fracture of L1 Vertebrae with peresis. The disability is assessed at 60% to both the lower limbs and 30 % to the whole body. She was continuously treated for 20 days. Her income is assessed at Rs.3,000/- per month. The 9 same is on the lower side. In view of the injuries sustained, it would be appropriate to assess the disability at 30%. In view of the decision of the Hon'ble Supreme Court in the case of RAMACHANDRAPPA VS- THE MANAGER, ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LTD., reported in AIR 2011 SC 2951, it would be appropriate to held the income at Rs.5,000/- per month. The loss of income due to disability could be assessed as follows;
"Rs.5,000 x 12 x 18 x 30% = 3,24,000/- "
Towards pain and suffering, a sum of Rs.25,000/- was awarded. The same is enhanced by a further sum of Rs.75,000/-. The amount awarded towards medical and incidental charges is enhanced by a further sum of Rs.10,000/-. In view of the injuries, he would require at least a period of one year for normalcy. Hence, a sum of Rs.60,000/- (Rs.5,000 x 12) is awarded towards loss of earnings during the period of treatment.
11. The claimant in M.F.A.No.7870/2008 (M.V.C.No.1256/2007) is entitled for a compensation of Rs. 5,09,000/- (Rs.1,10,800/- plus 4,98,200/-) under the following heads;
101 Pain and sufferings Rs. 1,00,000/- 2 Loss of amenities and Rs. 10,000/-
happiness 3 Medical and incidental Rs. 15,000/-
charges 4 Loss of earnings during Rs. 60,000/-
the period of treatment (Rs.10,000 x 12) 5 Loss of future earnings Rs. 3,24,000/-
due to disability
Total Rs. 5,09,000/-
12. In M.F.A.No.8413/2008 (M.V.C.No.1257/2008) the Tribunal has granted compensation of Rs.1,27,200/- under various heads which reads as under; 1 Pain and sufferings Rs.30,000/-
2 Loss of amenities and Rs.15,000/-
happiness 3 Medical and incidental Rs. 6,000/-
charges 4 Loss of earnings during Rs. 6,000/-
the period of treatment 5 Loss of future earnings Rs.70,200/-
due to disability
Total Rs.1,27,200/-
13. The claimant is stated to be a coolie and was earning Rs.150/- per day. The Tribunal held the income at 11 Rs.3,000/- per month, which is inadequate. In view of the decision of the Hon'ble Supreme Court in the case of RAMACHANDRAPPA VS- THE MANAGER, ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LTD., reported in AIR 2011 SC 2951, it would be appropriate to hold the income at Rs. 5,000/- per month. The doctor has assessed the disability at 15%, which is appropriate and undisturbed. Hence, the loss of income due to disability could be assessed as follows;
" Rs.5,000 x 12 x 13 x 15% = 1,17,000/-".
Towards loss of amenities and happiness, a sum of Rs.15,000/- was awarded. The same is inadequate and required to be enhanced by a further sum of Rs.25,000/-. The amount awarded towards medical and incidental charges is undisturbed. Having regard to the injuries, she would require at least 6 months to recover and hence, a sum of Rs.30,000/- (Rs.5,000 x 6) is awarded on the head of loss of earnings during the period of treatment.
14. The claimant in M.F.A.No.8413/2008 (M.V.C.No.1257/2007) is entitled for a compensation of Rs.2,23,000/- (Rs.1,27,200/- plus Rs.95,800/-) on the following heads;
121 Pain and sufferings Rs. 30,000/-
2 Loss of amenities and Rs. 40,000/-
happiness 3 Medical and incidental Rs. 6,000/-
charges 4 Loss of earnings during Rs. 30,000/-
the period of treatment 5 Loss of future earnings Rs.1,17,000/-
due to disability
Total Rs.2,23,000/-
The enhanced amount in all these appeals carries interest at 6% per annum, which shall be satisfied by the respondent - insurance company within a period of four weeks from the date of receipt of a copy of this order.
15. Accordingly, these appeals are allowed in part.
Sd/-
JUDGE Msu