Karnataka High Court
Shankaregowda, vs The General Manager And Custodian ... on 25 October, 2013
Bench: N.K.Patil, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF OCTOBER, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
M.F.A.No. 3355 OF 2011 (MV)
Between:
Shankaregowda,
S/o. Siddegowda @ Kullegowda,
Aged about 45 years,
Since appellant has become
Mentally and physically abnormal
His wife next friend his guardian
Smt. Vasantha W/o. Shankaregowda,
Goravanahalli Village,
Kasaba Hobli,
Maddur Taluk.
...Appellant
(By Smt. Archana Murthy.P, Advocate)
And :
1. The General Manager and
Custodian Internal Insurance
Fund, KSRTC, K.H.Double Road,
Shanthinagar,
Bangalore-560 025.
2. The Manager,
Branch Office,
Oriental Insurance Company Ltd.,
Chamaraja Double Road,
2
Mysore-571 114.
...Respondents
(By Smt. M.Jyothi, Advocate for R1;
Sri. M. Sowri Raju, Advocate for R2)
This MFA is filed U/S 173(1) of MV Act against the
judgment and award dated: 05/01/2011 passed in MVC
No.185/2009 on the file of the Civil Judge(Sr.Dn) and Motor
Accident Claims Tribunal, Maddur, 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 05/01/2011 passed in MVC No.185/2009, by the Civil Judge(Sr.Dn) and Motor Accident Claims Tribunal, Maddur, (for short ' Tribunal'), for enhancement of compensation.
2. By its judgment and award, the Tribunal has awarded a sum of `12,93,200/- under different heads with interest at 6% p.a., from the date of petition till the date of realization as against the claim made by the appellant for a sum of `49,00,000/-, on account of the injuries sustained by him in the road traffic accident.
3. In brief, the facts of the case are:
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The appellant claims to be aged about 44 years at the time of the accident. He was hale and healthy prior to the accident, working as agriculturist-cum-Sericulturist and also doing paddy business. That on 11.4.2009, while appellant was going by walk along with one G.K.Shankara to go to their land on the correct side of Maddur Malavalli main road, at that time, the driver of KSRTC bus bearing No.KA.09.F.4351 came in a rash and negligent manner with speed from Maddur towards Malavalli near Gorvanahalli gate and dashed against the appellant. Due to which, he fell down and sustained several multiple injuries. Immediately, he was shifted to General Hospital, K.M. Doddi and after first aid, he was shifted to BGS Apollo Hospital, Mysore, where he took treatment as inpatient 71 days, underwent three surgeries, costal drain was inserted and thereafter, on the advise of the Doctor he has taken bed rest and follow up treatment.
4. It is the further case of the appellant that, he spent considerable amount towards medical and other expenses. On account of the injuries sustained by him, he has lost 4 control over his body, suffering from brain hemorrhage and completely confined to bed and has to take assistance of others for each and everything and suffered permanent disability. The Doctor who was examined as CW1 has assessed the disability at 80% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal through his guardian, wife, 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 `12,93,200/- as compensation under different heads with interest at 6% p.a., from the date of petition till realization.
6. Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal through his guardian, wife, seeking enhancement of compensation.
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7. We have heard the learned counsel appearing for appellant and learned counsel appearing for respondent Nos. 1 and 2.
8. The submission of the learned counsel appearing for the appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards conveyance, nourishing food and attendant charges, towards loss of amenities, towards loss of future earnings and what is awarded is inadequate and appellant is entitled for more compensation under all the heads. Further, he submits that the Tribunal has erred in not awarding any compensation towards loss of income during the period of treatment. To substantiate the same, he submitted that, on account of the injuries sustained by the appellant in the accident, he took treatment as inpatient for 71 days, undergone three surgeries and during the said period, he has undergone lots of pain and agony, spent reasonable amount towards conveyance, nourishing food and attendant charges. To prove the disability, appellant has examined the Doctor as CW1, who after clinical 6 examination, has assessed the permanent disability at 80% to the whole body. But these facts have not been appreciated or considered by the Tribunal while awarding compensation. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified.
9. As against this, learned counsel appearing for respondent Nos. 1 and 2, inter-alia, contended and substantiated that the impugned 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 therefore, it does not call for interference. However, learned counsel appearing for the 2nd respondent- Insurance Company fairly submitted that, the Tribunal has erred in not assessing the income of the appellant reasonably as submitted by the learned counsel for the appellant and the same may be re-assessed reasonably and compensation may be awarded in accordance with law wherever reasonable amount is not awarded by the Tribunal.
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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 only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
11. The occurrence of the accident on 11.4.2009 is not in dispute. It is also not in dispute that, in the said accident, apart from severe head injury appellant has sustained fracture of right side 5 to 8 ribs with lung contusion and pneumothorax, he is suffering from recurrent respiratory track infection, and according to the discharge summary produced by concerned Doctor he is taking feats through PEG tube, he had spasticity with hyperonia and hypherflexia in all four limbs and he is maintained on PEG feats and he is on condom urinary cathedra. On account of the injuries sustained by the appellant, he has taken treatment as inpatient for 71 days in the hospital, undergone three surgeries. The Doctor who has been examined as CW1, 8 after clinical examination, has assessed the disability at 80% to the whole body and we accept the same.
12. Further, it emerges that, the Tribunal has erred in not assessing the income of the appellant reasonably having regard to his age, occupation and what is assessed by the Tribunal is on lower side and it needs to be reassessed. It is the case of the appellant that he is working as agriculturist- cum- Sericulturist and also doing paddy business. Merely because, he has not produced any permission or licence obtained by him to the business, it would not take away the legitimate entitlement of compensation by the appellant on account of the injuries sustained by him in the accident . Therefore, having regard to his age, occupation and the year of accident, we reassess his income at `4,500/- per month instead of `3,000/- per month as assessed by the Tribunal. The Tribunal has failed to consider that the appellant might have spent reasonable amount towards conveyance and other 9 incidental expenses during the time of treatment as he has taken treatment as inpatient for 71 days. We presume that, he might have taken bed rest and follow up treatment atleast for a period of six months on the advise of the doctor and during that period, he might have incurred financial loss as he could not attended his work and might have undergone lots of pain and sufferings. Discomforts and unhappiness persists through out his life. He has to depend entirely on the others as he is not in a position to do any work as he has suffered 80% permanent disability to the whole body and it would affect his happiness in future life and he has to depend upon others. The proper multiplier applicable is '14' since he was aged about 44 years. Taking all these aspects into consideration, we award a sum of `1,00,000/- towards injury, pain and sufferings as against `50,000/-; `50,000/- towards conveyance, nourishing food and attendant charges as against `20,000/-, `27,000/- towards loss of income during 10 treatment period for six months, `50,000/- towards loss of amenities as against `20,000/-, `6,04,800/- (4,500/- x 12 x 14 x 80/100) towards loss of future earnings as against `4,03,200/-. However, a sum of `7,50,000/- and `50,000/- awarded by the Tribunal towards medical expenses and towards future medical expenses is just and reasonable and therefore, it does not call for interference.
13. Thus, in all, the appellant is entitled to the total compensation of `16,31,800/- instead of `12,93,200/- and the break- up is as follows:
Towards pain and sufferings ` 1,00,000/-
Towards medical expenses ` 7,50,000/-
Towards conveyance, nourishing food ` 50,000/-
and attendant charges
Towards loss of income during treatment ` 27,000/-
period
Towards loss of amenities, due to ` 50,000/-
disability
Towards loss of future earnings ` 6,04,800/-
Towards future medical expenses ` 50,000/-
Total ` 16,31,800/-
14. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed 11 in part. The impugned judgment and award dated 05/01/2011 passed in MVC No.185/2009, by the Civil Judge(Sr.Dn) and Motor Accident Claims Tribunal, Maddur, stands modified, awarding the compensation of `16,31,800/- instead of `12,93,200/-. There would be an enhancement of `3,38,600/- with interest at 6% p.a., from the date of petition till its realization.
The 2nd respondent-Insurer is directed to deposit the enhanced compensation of `3,38,600/- 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.
Immediately on deposit by the Insurer, out of the enhanced compensation of `3,38,600/-, a sum of `2,50,000/- with proportionate interest shall be invested in the name of the appellant in any Nationalized or Scheduled Bank for a period of ten years and renewable by another five years, with liberty 12 reserved to the guardian, wife of the appellant to withdraw the interest accrued on it, periodically.
The remaining sum of `88,600/- with proportionate interest shall be released in favour of appellant through his guardian, wife, immediately.
Draw the award, accordingly.
SD/-
JUDGE SD/-
tsn* JUDGE