Karnataka High Court
Sri Abhishek Jaiswal vs Sri Ravi Babu Naidu B V on 12 October, 2012
Bench: N.K.Patil, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF OCTOBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
MFA. NO. 8410 OF 2007 (MV)
BETWEEN
SRI ABHISHEK JAISWAL
S/O SRI ANIL KUMAR JAISWAL
AGED ABOUT 27 YEARS
RESIDING AT NO.85, BMC GENETS HOSTEL
PALACE ROAD
BANGALORE
... APPELLANT
(BY SRI MOHAMMED SHERIFF, ADVOCATE)
AND
1. SRI RAVI BABU NAIDU B V
S/O VENUGOPAL NAIDU
MAJOR
RESIDING AT NO.4/8,
OLD MADRAS ROAD
BINNAMANGALA
INDIRANAGAR, BANGALORE-38
2. NATIONAL INSURANCE CO LTD
NO.58, RAJAJI STREET
KENGAYAN 638 701
BY ITS DIVISIONAL MANAGER
... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R2; R1 SERVED)
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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGEMENT AND AWARD DATED 16.12.2006 PASSED IN MVC
NO.477/2005 ON THE FILE OF XVI ADDITIONAL JUDGE,
MEMBER, MACT, BANGALORE, SCCH-14, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT FOR COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
N.K. PATIL, J, DELIVERED THE FOLLOWING:
:J U D G M E N T:
This is a claimant's appeal for enhancement of compensation, directed against the impugned judgment and award dated 16/12/2006 passed in MVC No. 477/2005 on the file of the Motor Accident Claims Tribunal, Bangalore City (SCCH-14), (hereinafter referred to as ' Tribunal' for short).
2. By its judgment and award, the Tribunal has awarded a sum of Rs. 13,42,000/- with costs and interest at 6% p.a., from the date of petition till realization as against the claim made by the appellant for a sum of 50,00,000/-, on account of the injuries sustained by him in the road traffic accident. 3
3. In brief, the facts of the case are:
The appellant is claiming that, he was aged about 26 years at the time of the accident, hale and healthy, studying MBBS final year in the medical college. At about 9.00 p.m. on 29.09.2004 he was proceeding on his motor cycle bearing No. UP-32/AK-
5442 along with his friend as a pillion rider on Kanakapura Road and when they reached near Premier Petrol bunk, at that time the offending lorry bearing registration No.NLA-9302 came from behind in a rash and negligent manner and dashed against the appellant's two wheeler and caused the accident.
Due to impact, the pillion rider died on the spot and the appellant sustained grievous injuries and fractures as follows:
1. Unstable fracture pelvis with symphysis diastasis and fracture sacrum with separation
2. Severe perennial injuries-complete transection of urethra and rectum 4
3. Right knee total internal derangement with lateral dislocation of patella
4. Sacral plexus injury with foot drop on right side.
Due to the above said injuries, he was admitted to the hospital and was treated as inpatient for a period of three and half months and underwent 17 surgeries. Thereafter, again he underwent 7 other surgeries and spent reasonable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has stated that the appellant was still under treatment. Further, he has opined that, the appellant is suffering from following disabilities:
1. He walks with antalgic gait with limb and dragging right leg.
2. Multiple scars over the pelvic area and thigh region
3. Colostomy bag insitu with faeces inside it 5
4. Under garments smell suggestive of soakage with urine suggesting urinary infection
5. Pelvic cavity shape is altered with mal alignment of iliac bones
6. Hip movements are grossly restricted
7. Gross wasting of leg muscles and wasting of intrinsic muscles of foot both sides right side more than 4 ft
8. Clawing of toe of right foot
9. Restriction of right knee movement flexion by 100 degree and extension 5 decrees
10. Inability of right knee plus
11. Restriction of left knee movement flexion by 50 and extension by 5 degrees
12. Restriction of ankle movement planter flexion by 15 degree dorsiflexin by 25 degrees
13. Restriction of left ankle plantar flexion by 10 degree and dorsiflexion by 15 degre
14. Limb length variation of about 3.25 cm due to pelvic asyanetry.
He has assessed 90% orthopedic disability; 100% disability towards continence of urine, fertility and 6 sexual function (supported with urologist report) and 100% permanent disability with respect to bowel function and toileting (Supported by Dr. Lakshman's report).
Taking into consideration all these facts and circumstances of the case, appellant filed a claim petition before the Tribunal under Section 166 of MV Act, claiming compensation against the respondents.
To substantiate his submission, he has examined himself as PW1 and examined Dr. Shivarajaiah as PW2 as well as Sri R. Sudhindra as PW3 and also got marked 29 documents as Exs.P1 to P29 and closed his side. On the other hand, respondent/insurer produced Ex.R1 copy of the Insurance policy admitting that the vehicle in question was insured as on the date of the accident, but it has not examined the competent officer of the Insurance Company.
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The Tribunal after appreciation of the oral and documentary evidence allowed the claim petition and awarded total compensation of Rs.13,42,000/- with interest at 6% per annum from the date of petition till realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhancement of compensation.
4. The learned counsel appearing for the appellant at the outset submits that the Tribunal has erred in taking the income of the appellant at Rs.4,000/- per month which is on the lower side. Further it has failed to consider the duration of treatment and surgeries undergone by the appellant during treatment. The Tribunal ought to have assessed 100% disability instead of 50% which is on the lower side and also has failed to award reasonable compensation towards injury, pain and suffering, loss of amenities, unhappiness and discomfort, marriage 8 prospects and loss of future income. It has also not awarded any compensation towards loss of education for one academic year. Inspite of completion of MBBS Decree course, he is not in a position to work. He does not have any marriage prospects and he has to live only on medicine through out his life. These aspects of the matter have not been appreciated by the Tribunal while awarding compensation. Therefore, he prays that the impugned judgment and award passed by the Tribunal is liable to be modified.
5. As against this, the learned counsel appearing for the 2nd respondent-insurer interalia substantiated that the impugned judgment and award passed by the Tribunal is after due consideration of the oral and documentary evidence. He submitted that, the Tribunal was justified in assessing the income of the appellant at Rs.4,000/- per month as he was doing final year MBBS Course and the accident is of the year 2004 as well as in assessing 9 50% permanent disability. Further he submits that, the award of compensation towards loss of amenities, discomfort and loss of future income is on the lower side and no compensation is awarded towards loss of education. The same may be considered by modifying the judgment and award passed by the Tribunal.
6. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only question that arise for consideration is:
"Whether the quantum of
compensation awarded by the
Tribunal is just and reasonable?"
7. After perusal of the material available on record, including the impugned judgment and award it is not in dispute that the appellant was pursuing his last year MBBS decree course. He was hale and 10 healthy prior to the accident. He has undergone treatment as inpatient for more than 3½ months and also undergone 17 surgeries and thereafter during the pendency of his claim petition, again he has undergone 7 surgeries. PW2-Doctor has assessed disability of 90% towards orthopedic, 100% towards continence of urine, fertility and sexual function (supported with urologist report) and 100% permanent disability with respect to bowel function and toileting (supported by Dr. Lakshman's report). The doctor has rightly assessed permanent disability at 80% to 90% to the whole body. But, the Tribunal has failed to consider the duration of treatment taken by the appellant and amount spent for conveyance, nourishing food and attendant and medical charges. Further, it has failed to take into consideration the pain and suffering, discomfort, mental agony, unhappiness he has to undergo throughout his life since he has to depend upon an assistant and also it 11 affects the marriage prospects of the appellant. These aspects of the matter are neither considered nor appreciated by the Tribunal while awarding compensation. The compensation awarded by the Tribunal is inadequate and it requires to be enhanced.
8. Having regard to the facts and circumstances of the case, we award a sum of Rs. 1,00,000/- towards pain and suffering instead of Rs. 80,000/-; Rs. 60,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 45,000/-; Rs. 75,000/- towards loss of amenities of life instead of Rs. 40,000/-, and Rs.25,000/- towards frustration in life, Rs.50,000/- towards loss of marriage prospects instead of Rs.30,000/-, and a sum of Rs.6,52,800/- (4000 x 12 x 17 x 80%) towards permanent disability instead of Rs.4,32,000/- awarded by the Tribunal. We also further award a sum of Rs.1,00,000/- towards loss of education for 12 the one academic year as against Rs.15,000/- awarded by Tribunal.
9. The Tribunal has awarded a sum of 6,40,000/- towards medical expenses and Rs.15,000/- towards future medical expenses. The said compensation awarded by the Tribunal is just and reasonable and it does not call for interference.
10. The total compensation payable comes to Rs.17,12,800/- and the break- up is as follows:
Towards pain and sufferings Rs. 1,00,000/- Towards medical expenses Rs. 6,40,000/- Towards conveyance, nourishing Rs. 60,000/- food and attendant charges Towards loss of income during the Rs. 20,000/- period of treatment Towards loss of education for Rs. 1,00,000/- academic year Towards loss of amenities Rs. 75,000/- Towards loss of disability Rs.6,52,800/- Towards frustration of life Rs. 25,000/- Towards loss of marriage prospects Rs. 50,000/- Towards future medical expenses Rs. 15,000/-
Total Rs.17,12,800/-
11. Accordingly, the appeal is allowed in part and the impugned judgment and award passed by the 13 Tribunal dated 16.12.2006 in MVC No.477/2005 stands modified, awarding a compensation of Rs.17,12,800/- instead of Rs.13,42,000/- (enhanced compensation comes to Rs.3,70,800/-).
The Insurer is directed to deposit the enhanced compensation of Rs. 3,70,800/- with interest at 6% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment and award.
Out of the enhanced compensation, Rs.3,00,000/- 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 ten years, with liberty to him to withdraw the interest accrued on it.
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The remaining Rs.70,800/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the Insurer.
Draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE Sbs*