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2009 DIGILAW 795 (KAR)

Yogananda @ Ananda v. V. Rajagopal

2009-10-20

N.ANANDA, N.K.PATIL

body2009
Judgment :- Patil, J. This appeal by the claimant is against the common judgment and award dated 4th June 2005, passed in M.V.C.No.5627/2004, on the file of the Motor Accident Claims Tribunal at Bangalore (‘Tribunal’ for short) for enhancement of compensation on the ground that, the compensation of Rs.1,12,500/-awarded in favour of the claimant appellant as against his claim of Rs.05.00 lakhs, is inadequate. 2. The appellant claims to be an Assistant Computer Operator, aged about 26 years as on the date of the accident and drawing monthly salary of Rs.5,308/-. That on 22-05-2004, at about 7:30 P.M., the appellant was riding the Yamaha Motor cycle bearing No.CKN-3664 along with the pillion rider, very cautiously on the left side of the road by observing traffic rules. When he came near Kajikallahalli Gate, a Hero Honda bearing Registration No.KA-07/H-9091 being driven by its driver in a rash and negligent manner dashed against the appellant. On account of the same, the appellant as well as his pillion rider fell down and sustained grievous injuries. 3. On account of the grievous injuries sustained in the accident, the appellant herein filed the claim petition before the Tribunal, seeking compensation of Rs.05.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 4h June 2005. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.1,12,500/-with interest at 6% per annum on Rs.1,02,500/-(excluding the compensation on Rs.10,000/-awarded towards future medical expenses) from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 4. We have heard learned counsel for appellant and learned counsel for Insurance Company for considerable length of time. 5. The learned counsel for the appellant submitted that, the appellant is an Assistant Computer Operator and because of the injuries sustained in the accident, he would not be in a position to perform his duties as he was doing earlier. He further submitted that, the Doctor has assessed the total body disability as 15% for head and neck and it would be very difficult for him to concentrate on computers on account of the said disability, he being the Assistant Computer Operator. He further submitted that, the Doctor has assessed the total body disability as 15% for head and neck and it would be very difficult for him to concentrate on computers on account of the said disability, he being the Assistant Computer Operator. He also submitted that, the Tribunal has erred in out awarding any amount towards future marriage prospects and also further erred in not awarding just and reasonable compensation under the other heads. Therefore, he submitted that, the judgment and award passed by the Tribunal is liable to be modified. 6. As against this, the learned counsel for the Insurance Company, interalia, contended and substantiated that the judgment and award passed by the Tribunal is just and reasonable and does not call for interference. 7. After careful consideration of the submission of the learned counsel for the parties, after evaluation of the original records available of file and after perusal of the impugned judgment and award passed by the Tribunal, the only point that arise for our consideration is as to: “Whether the compensation awarded by Tribunal is just and reasonable?” After careful perusal of the impugned judgment and award passed by the Tribunal and the original records placed before us, it can be seen that, the appellant was aged 26 years as on the date of the accident and was in patient for a period of more than three weeks and drawing monthly salary of Rs.5,308/-. Further, as per the evidences of PWs 2 and 3, he has sustained the following injuries: i) head injury with SDH with minimal midline shift; ii) Fracture of bilateral lateral wall; iii) Fracture of bilateral Maxillary; iv) Fracture of nasal bones; and v) Fracture of lift Zygomatic Arch. The Doctor has opined that all the above injuries are grievous in nature. He was advised 32 days rest from 24.05.2004 to 26.06.2004. Therefore, having regard to all these aspects, we are of the view that a sum of Rs.25,000/-awarded by Tribunal is inadequate and requires enhancement. Accordingly, we award a sum of Rs.45,000/-towards pain and sufferings. 8. The Tribunal has erred in awarding only a sum of Rs.35,000/-towards medical expenses, conveyance, nourishing food and attendant charges. Admittedly, the appellant was in-patient for a period of more than three weeks, during which period, it is reasonable to infer that he would have spent reasonable sum on conveyance, food and other incidental expenses. 8. The Tribunal has erred in awarding only a sum of Rs.35,000/-towards medical expenses, conveyance, nourishing food and attendant charges. Admittedly, the appellant was in-patient for a period of more than three weeks, during which period, it is reasonable to infer that he would have spent reasonable sum on conveyance, food and other incidental expenses. Therefore having regard to the duration of treatment and the nature of injuries, we deem it fit to award a sum of Rs.50,000/-towards medical expenses conveyance, nourishing food and attendant charges. 9. A sum of Rs.5,500/-awarded towards loss of income during the period of treatments appears to be on a lower side. Accepting the income of the appellant at Rs.5,308/-and having regard to the period of treatment, we award a sum of Rs.10,000/-towards loss of income during the period of treatment. 10. The Tribunal has also erred in awarding a sum of Rs.15,000/-towards loss of future income or loss of amenities of life on account of disability. After microscopic evaluation of the original records available on file, particularly Ex.17 series, which are the photographs of the appellant, it is seen that, there are permanent scars on his face. This clinching material has not been looked into not considered by the Tribunal. Admittedly, he was impatient for more than there weeks and the Doctor has assessed the total body disability of 15% for head and neck and stated that the appelleant has sustained Fronto temporo parietal acute sub dural heamatoma and maxillo facial injuries etc. Further, it can be seen that the Doctor has advised the appellant not to concentrate too much on computer and in any other eye risky work and that, over all disability over his Nozal deviation is 15 degree and with facial disfigurement with total body disability 15% for head and neck. The said disability and discomfort comes in the way of the appellant’s day to day activities. Therefore, having regard to all these aspects, we deem it fit to enhance the same to Rs.50,000/-towards Loss of future income or loss of amenities of life on account of disability. 11. A sum of Rs.10,000/-awarded towards future Medical expenses appears to be on a lower side having regard to the nature of injuries sustained and the duration and nature of treatment. 11. A sum of Rs.10,000/-awarded towards future Medical expenses appears to be on a lower side having regard to the nature of injuries sustained and the duration and nature of treatment. Having regard to the evident of PW3 Doctor that the appellant may require a sum of Rs.15,000/-for removal of implants, we award a sum of Rs.15,000/-towards future medical expenses instead of Rs.10,000/-awarded by the Tribunal. 12. Further, the Tribunal also erred in not awarding any compensation towards loss of marriage prospects. Appellant was aged 26 years as on the date of the accident and has suffered the injuries on his head and neck and also suffered Nozal deviation of 15 degree and facial disfigurement with total body disability 15% for head and neck. Some of the scars may continue to be there for the rest of his life. Therefore, having regard to all these aspects, we deem it fit to award a sum of Rs.25,000/-towards loss of marriage prospects. 13. So for as the amount awarded towards the damage of the vehicle is concerned, the same is just and proper and does not call for interference. 14. In the light of the facts and circumstances of the case, the appeal filed by appellant is allowed in part. The impugned judgment and award passed by the Tribunal dated 4th June 2005 in M.V.C.No.5627/2004 is hereby modified awarding a sum of Rs.1,97,000/-as against Rs.1,12,500/-awarded by the Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The breakup is as follows: i) Towards pain and sufferings Rs.45,000/- ii) Towards loss of income During the period of treatment Rs.10,000/- iii) Towards loss of future income or loss of amenities of life Rs.50,000/- iv) Towards medical expenses, Conveyance, nourishing, Food and attendant charges Rs.50,000/- v) Towards future medical expenses Rs.15,000/- vi) Towards loss of marriage Prospects Rs.25,000/- viii) Towards damages of vehicle Rs. 02,000/- Total Rs.1,97,000/- The second respondent-Insurance Company is directed to deposit the enhanced compensation of Rs.84,500/-with 6% interest thereon, within four weeks from the date of receipt of copy of the judgment and award. Immediately on deposit of the enhanced sum with interest by the insurance Company, 50% of the same shall be deposited in Fixed Deposit for a period of five years in any Nationalized or Scheduled Bank with permission to withdraw the quarterly interest. Immediately on deposit of the enhanced sum with interest by the insurance Company, 50% of the same shall be deposited in Fixed Deposit for a period of five years in any Nationalized or Scheduled Bank with permission to withdraw the quarterly interest. The remaining 50% of the enhanced compensation with interest shall be released in favour of the appellant, immediately. Office is directed to draw the award, accordingly.