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2010 DIGILAW 1002 (KAR)

Divisional Manager Bangalore v. M. K. Sunitha

2010-09-15

K.GOVINDARAJULU, N.K.PATIL

body2010
Judgment :- These appeals filed by the insurer and the claimant arises out of the same impugned judgment and award dated 19/11/2004 passed in M.V.C.No.6085/2003 on the file of the IX Addl. Judge, Member, MACT-7, Court of Small Causes, Bangalore (‘Tribunal’, for short). The Tribunal by its impugned judgment, awarded a sum of Rs.9,96,200/- under different heads with interest at the rate of 6% p.a. on account of the injuries sustained in the road traffic accident. The appellant-claimant contended that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement, whereas the appellant-insurer contended that the quantum of compensation awarded is no the higher and is liable to be reduced. Hence both have presented these two appeals. 2. The brief facts of the case are: The appellant-claimant filed a claim petition under Sec.166 of M.V.Act claiming compensation of Rs.25,00,000/- on account of the injuries sustained in a road traffic accident. At that time, she was aged about 32 years and by profession was a Marketing Officer cum Sales Woman drawing salary of Rs.12,200/- p.m. as per Ex.P16. She was hale and healthy prior to the accident that occurred on 12/9/2003 at about 11.00 a.m. when the appellant-claimant was proceeding on a Kinetic Honda bearing registration No.KA-05-V-1872 as pillion rider on Hongasandra Main Road, at that time, near Srinivasa Kalyana Mantapa, a lorry bearing registration No.TN-02-D-1057 came in a high speed driven by its driver in a rash and negligent manner and dashed against the Kinetic Honda on account of which, she fell down and sustained grievous injuries. Immediately she was shifted to Hosmat Hospital and she has undergone treatment for a period of 21 days. It is the case of the claimant that she has spent huge sum of money towards medical expenses, conveyance, nourishment and attendant charges and during the pendency of the instant appeal, there is amputation of the right limb below the knee. 3. The said claim petition had come up for consideration before the Tribunal and after considering the relevant material available on file and after appreciation of the oral and documentary evidence, the Tribunal allowed the claim petition in part, awarding a sum of Rs.9,96,200/- under different heads with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant-claimant is in appeal before this Court, seeking enhancement of compensation, whereas the appellant-insurer contended that the compensation awarded is on the higher side and is liable to be reduced. The claimant and insurer presented these two appeals seeking appropriate reliefs as stated supra. 4. The submission of the learned Counsel appearing for the appellant-claimant, Sri N.S. Bhat, at the outset is that during the pendency of the appeal, there is amputation of right leg below the knee. The doctor has assessed disability of 65% to right lower limb and she has undergone treatment for a period of 21 days. On account of the injuries sustained which are of grievous in nature, she has lost her job as Marketing Officer cum Sales Woman. She is jobless as on date. The Tribunal erred in not awarding reasonable compensation towards conveyance, nourishment & attendant charges and loss of amenities, discomforts & unhappiness and also assessing the disability of 30% for the whole body, is on the lower side and requires reconsideration having regard to the facts and circumstances of the case. He further submits that in view of the above, the impugned judgment and award may be modified by enhancing the compensation. 5. As against this, the learned Counsel appearing for the insurer interalia, vehemently submits that without any authenticated proof, claimant’s salary is taken as Rs.12,200/-p.m. as per Ex.P16. It is not the salary certificate issued. It is a certificate issued as “To Whomsoever It May Concern”. Claimant has also not produced any document to show the mode of payment, whether it is by way of cash or cheque or depositing the salary to her S.B. account. Therefore, having regard to the date of accident, age of the claimant, amputation and qualification of the claimant who has studied up to Pre-University course, this Hon’ble Court may reassess the income of the appellant-claimant reasonably and re-determine the compensation towards loss of future income. Therefore at the outset he submits that the impugned judgment and award passed by the Tribunal is liable to be modified by reducing the compensation substantially. 6. Therefore at the outset he submits that the impugned judgment and award passed by the Tribunal is liable to be modified by reducing the compensation substantially. 6. After careful perusal of the impugned judgment & award and records available on file, the Tribunal has rightly awarded just and reasonable compensation of Rs.50,000/-towards pain and sufferings, Rs.1,44,000/- towards medical expenses, Rs.60,000/-towards loss of income during the laid up period and Rs.25,000/- towards loss of martial obligations and it does not call for enhancement. 7. The Tribunal erred in not awarding reasonable compensation towards conveyance, nourishing food and attendant charges. The quantum of Rs.11,000/- is on the lower side for the reason that she has undergone treatment for 21 days as inpatient in the hospital and the doctor has assessed the disability at 65% to the right lower limb and 32.5% to the whole body. She might have spent some reasonable amount towards conveyance, nourishing food and attendant charges. Therefore we deem it fit to award Rs.20,000/-towards conveyance, nourishment and attendant charges as against Rs.11,000/-awarded by the Tribunal. 8. Learned Counsel appearing for the appellant-claimant, at the outset submits that there is amputation of right leg below the knee and as per the Workmen Compensation Act, the disability is to be assessed at 50% to the whole body. There is substance in the submission of the counsel appearing for the claimant. In fact, the claimant is also present before the court. It is a fact, there is amputation of right leg below the knee. This fact is not disputed by the learned Counsel appearing for the insurer. Therefore we deem it fit to award Rs.50,000/- towards loss of amenities, discomforts and unhappiness, as against Rs.15,000/- awarded by the Tribunal, to meet the ends of justice. 9. Further the Tribunal has committed an error in assessing the income of the appellant at the rate of Rs.12,000/- p.m., without assigning any valid reasons. It is the case of the claimant that she was getting salary of Rs.12,200/- p.m. as per Ex.P16 and she has also examined the representative of the employer. But they have not produced any further evidence to establish that she was drawing salary of Rs.12,200/- p.m., nor the pass book of her S.B. Account, as to the mode of payment of salary as per Ex.P16. But they have not produced any further evidence to establish that she was drawing salary of Rs.12,200/- p.m., nor the pass book of her S.B. Account, as to the mode of payment of salary as per Ex.P16. What emerges is that, this is a certificate to addressed as “To Whomsoever It may Concern”, duly signed by the Regional Sales Manager. During the course of submission, we asked the learned Counsel appearing for the appellant-claimant, Sri N.S. Bhat, to verify the qualification of the claimant, who was present before the court and she has informed the counsel that she has completed Pre-University Course. Having regard to her qualification, her age, nature of work and date of accident that occurred on 12/9/03, to meet the ends of justice, we can safety re-assess the income of the appellant-claimant at the rate of Rs.6,000/- p.m. as against Rs.12,000/- assessed by the Tribunal. We have already re-assessed 50% permanent disability to the whole body on account of the amputation of right leg below the knee and the appropriate multiplier applicable is 16 and therefore we deem it fit to award Rs.5,76,000/- (Rs.6000/- x 12 x 16 x 50/100) towards loss of future income as against Rs.6,91,200/- awarded by the Tribunal. 10. Further the Tribunal has erred in not awarding compensation towards future medical expenses. Having regard to the nature of injuries sustained, her age, amputation and loss of her job, to meet the ends of justice, Rs.20,000/-is awarded towards future medical expenses. 11. Having regard to the facts and circumstances of the case, we re-determine the compensation awarded by the Tribunal under different heads as follows: Pain and sufferings Rs.50,000/-Medical expenses Rs.1,44,000/-Conveyance, nourishment and attendant charges Rs.20,000/- Loss of income during laid-up period Rs.60,000/- Loss of amenities, discomforts and unhappiness Rs.50,000/- Loss of marital obligations Rs.25,000/- Loss of future income Rs.5,76,000/-Future medical expenses Rs.20,000/-Total Rs.9,45,000/-In all, the appellant-claimant is entitled for total compensation of Rs.9,45,000/-as against Rs.9,96,200/-, which will reduce the compensation by Rs.51,200/-. 12. The appeal in MFA 2271/05 filed by the claimant is dismissed and the appeal in MFA 720/05 filed by the insurer is allowed in part reducing the compensation from Rs.9,96,000/- to 9,45,000/- with interest at 6% from the date of petition till the date of realization. 12. The appeal in MFA 2271/05 filed by the claimant is dismissed and the appeal in MFA 720/05 filed by the insurer is allowed in part reducing the compensation from Rs.9,96,000/- to 9,45,000/- with interest at 6% from the date of petition till the date of realization. The appellant-insurer is directed to deposit the remaining compensation amount within a period of 4 weeks from the date of receipt of copy of the judgment and award. Out of the compensation determined at Rs.9,45,000/-, the appellant-claimant has already drawn Rs.2,16,264/- on 19/11/04 and Rs.3,24,396/-on 19/12/07, in all Rs.5,40,660/-. Out of the remaining compensation amount of Rs.4,04,340/-, Rs.3,00,000/- with proportionate interest shall be deposited in the name of the appellant in any nationalised or scheduled bank for a period of 5 years renewable for another 5 years and she is entitled to withdraw the interest periodically. Remaining Rs.1,04,340/- with proportionate interest shall be released in favour of the appellant-claimant immediately on deposit of the amount by the Insurance Company. Sri N.S. Bhat, learned Counsel appearing for the appellant-claimant, is directed to file his vakalath within a week from today. Office to draw award accordingly.