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2002 DIGILAW 491 (KAR)

K. Sridhara Acharya v. Chennappa Gowda

2002-08-09

N.S.VEERABHADRAIAH

body2002
JUDGMENT N.S. Veerabhadraiah, J.--This appeal is by the injured for enhancement of compensation being dissatisfied with the quantum of compensation of Rs.1,27,802/- awarded in MVC No. 852 of 1994 on the file of the Additional Claims Tribunal, Puttur dated 5.7.2000. 2. The Appellant while proceeding as a pillion rider in the Motor Cycle bearing Regn. No. KA-21/E-399, a Car came driven at a high speed in a rash and negligent manner and dashed against their Motor Cycle. As a result, the Appellant suffered with multiple injuries over his right femur, fracture of tibia and fibula and other injuries all over the body. In respect of the injuries suffered, he filed the claim petition. The 2nd Respondent-National Insurance Company Limited filed objection statement denying its liability. The Claims Tribunal framed the following issues: 1. Whether the Petitioner proves that on 27.2.1994 at about 3.45 pm at Purushara Katte on Puttur-Savanoor main road, while he was travelling as pillion rider on the Motor Cycle No. KA- 21/E-399 ridden by his brother/Radhakrishna Acharya slowly and observing traffic rules, Motor Car No. CRQ:9899 driven by its driver from opposite direction rashly or negligently and on the wrong side of the road, dashed against the Motor Cycle? 2. Whether the Petitioner further proves that due to said accident, he sustained injuries noticed in Col.11 of his petition? 3. Whether the Petitioner is entitled to compensation? If Yes, to what amount and from whom? 4. What award/order? The Petitioner examined P Ws 1 and 2 and produced Ex. P1 to P-132 where the 2nd Respondent produced the Insurance Policy Ex.R1. The Claims Tribunal, considering the evidence of the Petitioner and also the police records held that the accident resulted on account of the rash and negligent driving of the car in question. Further considering the nature of fracture injuries and the treatment that he took, the Tribunal, awarded a total compensation of Rs.1,37,850/- with interest at 10%. The injured being dissatisfied with the quantum of compensation awarded has come up with this appeal. 3. Further considering the nature of fracture injuries and the treatment that he took, the Tribunal, awarded a total compensation of Rs.1,37,850/- with interest at 10%. The injured being dissatisfied with the quantum of compensation awarded has come up with this appeal. 3. The learned Counsel Sri Pundikai Ishwara Bhat for the Appellant contended that on account of the fracture of right femur, fracture of right tibia and fibula coupled with other injuries all over the body the injured took treatment for over a period of 4 years and was admitted to hospital as many as 11 times and spent more than Rs.1,50,000/- for treatment itself. That apart, on account of the fractures he has developed complete stiffness over the right side resulting in the disability of more than 80%. Therefore, prayed to enhance the compensation. 4. The learned Counsel Sri S.V. Hegde Mulkand for the 2nd Respondent- Insurance Company justified the quantum of compensation awarded and prayed to dismiss the appeal. 5. In the light of the submissions, the point for consideration that arises: Whether the Appellant is entitled for the enhancement of compensation. If so, what orders? It is not in dispute that the accident resulted on account of the rash and negligent driving of the car in question and the findings of the Claims Tribunal has become final. Now, coming to the quantum of compensation is concerned, it is in the evidence of PW-2 Dr. S. Adhyanthaiah that when he examined he found the injured has suffered with committed supra condylar fracture of right femur, fracture of right tibia and right fibula. He was admitted to Hospital on 27.2.1994 and undergone treatment as an inpatient upto 27.4.1994. Again he was admitted to hospital on 28.4.1994 and discharged on 21.5.1994, likewise he was admitted to hospital for 11 times. In all, he was an inpatient for 120 days from time to time, commencing from 1994-97. This itself shows, though he was under treatment for over a period of 3 years. The evidence of the Doctor shows that there is restriction in the movement of the knee joint to the extent of 70 degrees also resulted in the shortening of limb by 1 1/2 inch and has suffered with the disability of 30%. The Doctor Shanthram Shetty who is a well known Orthoepaedician, after examining the injured has issued the disability certificate. The Doctor Shanthram Shetty who is a well known Orthoepaedician, after examining the injured has issued the disability certificate. On examination of the injured on 11.11.1997 found both fractures have united, but there is residual stiffness of right knee with restrictions of 70 decree knee flexion and there is shortening of right lower limb by 1 1/2 cms, which has resulted in permanent disability. This shows that on account of the stiffness of right knee, he cannot walk, stand for a long time or sit and do his goldsmith job. Considering the facts of this case, in my opinion, the quantum of compensation awarded at Rs.35, 000/- towards general damages is on the lower side. It is clearly come in the evidence that he is a gold-smith by profession. Now, on account of the stiffness, he cannot squat on the ground for a long time thereby resulted in the disability to the extent of 30%. The minimum earnings of a goldsmith per month can be taken as Rs.3,000/-. After deducting 30% of it, the net income comes to Rs.900/- per month and thereby the annual loss would come to Rs.10,800/-. At the time of the accident, the injured was aged 26 years. By applying the multiplier 15, the loss of future income on account of permanent disability would comes to Rs.1,62,000/- which appears to be just and reasonable for which the Appellant is entitled. The Claims Tribunal has awarded a sum of Rs.57,850/- towards Medical expenses calculating the amount on the basis of the Hospital bills produced. Having been admitted to the hospital for more than 11 times and he being an inpatient for a period of 120 days that is for a period of 3 months, in my opinion, the amount of compensation awarded at Rs.57,850/- also is on the lower side and the same is enhanced to Rs.70,000/-. It is further seen that towards the loss of amenities, no compensation has been awarded. Therefore, on this head, an amount of Rs.30,000/- is awarded. In so far as the award of compensation of Rs.10,000/- towards Food and nourishment, Rs.5,000/- towards personal attendants, Rs.10,000/- towards conveyance and Rs.10,000/- for the loss of marriage prospects does not call for interference. Therefore, the total compensation that the Appellant is entitled is Rs.2,97,000/- less Rs.1,37,850/- already awarded. 6. Therefore, on this head, an amount of Rs.30,000/- is awarded. In so far as the award of compensation of Rs.10,000/- towards Food and nourishment, Rs.5,000/- towards personal attendants, Rs.10,000/- towards conveyance and Rs.10,000/- for the loss of marriage prospects does not call for interference. Therefore, the total compensation that the Appellant is entitled is Rs.2,97,000/- less Rs.1,37,850/- already awarded. 6. Accordingly, the Appellant is entitled for the enhanced compensation of Rs.1,59,150/- which shall carry interest at 6% from the date of appeal till the date of deposit from the Respondents jointly and severally with proportionate cost.