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2010 DIGILAW 1091 (KAR)

R. Dhanraj v. Abdul Bhasheer

2010-10-20

H.S.KEMPANNA, N.K.PATIL

body2010
Judgment :- N.K. Patil, J. 1. This appeal by the appellant is directed against the impugned and award dated 11/10/2004 passed in MVC No. 4356/2002 on the file of the XIII Addl. SCJ, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH_15), (hereinafter referred to as ‘Tribunal’ for short). 2. By its judgment and award, the Tribunal has awarded a sum of Rs.6.73.800/- under different heads with interest at 8% p.a., from the date of petition till its deposit, as against the claim made by the appellant for a sum of Rs.15,00,000/- on account of the injuries sustained by him in the road traffic accident. 3. In brief, the facts of the case are: The appellant claims to be aged about 22 years, hale and healthy, doing screen printing and allied activities in the name and style of M/s. Byrava Printers in New Guddadahill, Bangalore, having regular orders of Printing works and getting the income of more than Rs.10,000/- per month. That, on 17.08.2002 he was traveling as a pillion in a Motor bike bearing No.KA.02.EC.9960 and his friend was riding the motor bike slowly and cautiously on the left side of the road, when they came near Janatha Colony, at that time, lorry bearing No. CAM.596 came from opposite direction in a rash and negligent manner and dashed against the motorbike, due to which, the wheel of the lorry ran over the legs of the appellant. Immediately, he was shifted to Victoria Hospital, thereafter, he was referred to Manipal Centre Hospital, Bangalore, wherein, he has taken treatment as inpatient for 153 days on different dates, underwent three surgeries and as per the advise of the Doctor he has taken follow up treatment and bed rest for 12 months, in view of the injuries sustained by the appellant in the accident, he has suffered permanent disability and the Doctors PWs-2 and 3, have assessed the disability at 40% to the whole body and he has spent considerable amount towards medical expenses, conveyance and other incidental charges. Therefore, he has filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. Therefore, he has filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on file, has allowed the claim petition in part and awarded Rs.6,73,800/-under different heads with interest at 8% p.a., from the date of petition till its deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal seeking appropriate reliefs. 4. We have heard the learned counsel appearing for the appellant and learned counsel for Insurer. 5. Learned counsel appearing for appellant Sri. N.S. Bhat, at the outset submitted that, the Tribunal has erred in not awarding reasonable compensation towards pain and sufferings, conveyance, nourishing food and attendant charges, loss of income during the period of treatment, loss of amenities of life and loss of future income and in not awarding any compensation towards future medical expenses. To substantiate the said submission, he has taken us through the evidence of the Doctors PWs-2 and 3 and submitted that, they have assessed the permanent disability suffered by the appellant at 40% to the whole body. But the Tribunal has assessed at 20% without assigning any valid reasons and erred in taking the income of the appellant at Rs.50/- per day without taking into consideration of the fact that, the appellant after completing his Pre-university course was running a Screen Printing press in the name and style as M/s Byarava Printers and getting the income of more than Rs.10,000/- per month. To substantiate the same, appellant has examined PWs-4 and 5 who have deposed that appellant was getting the income of more than Rs. 12,000/-per month. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing the compensation under the above heads. 6. Against this, learned for the insure inter-alia, contended and supported the impugned judgment and award passed by the Tribunal. Further, he submitted that, the Tribunal after assessing oral and documentary evidence available on file, has awarded just and reasonable compensation under all the heads and therefore, it does not call for interference. 6. Against this, learned for the insure inter-alia, contended and supported the impugned judgment and award passed by the Tribunal. Further, he submitted that, the Tribunal after assessing oral and documentary evidence available on file, has awarded just and reasonable compensation under all the heads and therefore, it does not call for interference. However, after going through the original record, has submitted that reasonable enhancement has to be made in respect of above heads in accordance with law. 7. After careful consideration of the submissions made by learned counsel for both the parties and after careful perusal of the original records available on file including the impugned judgment and award, the only point that arises for our consideration is: 8. After careful perusal of the original records available on file, the occurrence of the accident and the injuries sustained by the appellant in the said accident are not in dispute. PW2, Orthopaedic Surgeon, on examination of the appellant has deposed that, appellant has sustained compound comminuted fracture of both tibia and fibula injunction of lower and middle 1/3rd grossly contaminated wound, muscles contused, tibia exposed with stripping of periosteum partially, no vascular injury was found, degloving injury of left leg extending from knee joint to ankle circumferentialy, knee joint was partly exposed, severe crushing of muscles and for the said injuries he has taken treatment as inpatient for a period of more than 153 days on different dates, under gone three surgeries and on the advise of the Doctors he has taken bed rest and follow up treatment for a period of more than 12 months. The Tribunal, after assessing the oral and documentary evidence available on file and taking into consideration the nature of injuries sustained by the appellant and the nature and duration of the treatment taken by him, has awarded a sum of Rs.5,50,000/-towards medical expenses, conveyance, nourishing food and other incidental charges and we confirm the same towards medical expenses only. 9. The Tribunal has awarded a sum of Rs.10,000/-in towards loss of marriage prospects and the same is just and reasonable and therefore, it does not cal for interference. 10. The Tribunal has awarded a sum of Rs,30,000/-towards pain and sufferings. Rs.9,000/- towards loss of income during the period of treatment, Rs,64,800/-towards loss of future earnings and Rs,10,000/-towards loss of amenities and future unhappiness. 10. The Tribunal has awarded a sum of Rs,30,000/-towards pain and sufferings. Rs.9,000/- towards loss of income during the period of treatment, Rs,64,800/-towards loss of future earnings and Rs,10,000/-towards loss of amenities and future unhappiness. The said compensation awarded by the Tribunal is inadequate and it requires to be enhanced. Further, the Tribunal has erred in not awarding any compensation towards future medical expenses and therefore, it needs to be awarded. It is not in dispute that, in view of the injuries sustained by the appellant in the accident, he has taken treatment as inpatient for 153 days on different dates, underwent three surgeries and thereafter, bed rest and follows up treatment for one year. On account of the said injuries, appellant has suffered permanent disability and the Doctors have assessed the disability at 40% to the whole body, but they not assessed the functional disability to the particular limb. The Tribunal has assessed the disability at 20% to the whole body without assigning any valid reasons and the same is on lower said and it needs to be modified. Therefore, having regard to the nature of injuries sustained by the appellant, we re-assess the disability at 30% to the whole body instead of 20% as done by the Tribunal. It is not in dispute that, appellant after completing his Pre-university course was running a Screen Printing press in the name and style as M/s. Byarava Printers and getting the income of more than Rs.10,000/-per month and to substantiate the same, appellant has examined PWs-4 and 5 and they have deposed that appellant was getting the income of more than Rs.12,000/-per month. But the appellant has not produced any authenticated documents to prove the same. Taking into consideration the age, occupation and nature of the business of the appellant who was running his own Screen Printing Press, we re-assess his income at Rs.4,000/-per month. Further, it is the case of the appellant that he has spent consideration amount toward conveyance, nourishing food and attendant charge and he has taken bed rest for a period of 12 months as per the advise of the Doctors, lost his income during that period and therefore it has to be compensated. Further, it is a fact that the appellant has to suffer unhappiness and discomforts through out his due to the permanent disability suffered by him in the accident. Further, it is a fact that the appellant has to suffer unhappiness and discomforts through out his due to the permanent disability suffered by him in the accident. It is in the evidence of the Doctors that the appellant has to undergo one more surgery for removal of implants and for that, he may require some amount. Therefore, taking all these factors into consideration, we award a sum of Rs.1,00,000/- towards pain and sufferings, Rs.50,00/-towards, conveyance nourishing food and attendant charges, Rs.48,000/-loss of income during the period of treatment for 12 months at the rate of Rs.4,000/- per month, Rs.75,000/-towards loss of amenities of life, Rs.2,59,200/- towards loss of future income (4,000/-x 12 x 18 x 30/100) and a sum of Rs.20,000/- towards future medical expenses. 11. For the foregoing reasons, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Whether-the-quantum-of compensation awarded by the Tribunal is just and reasonable? Rs.11,12,200/- instead Rs.6,73,800/- and the break-up is as follows: Towards pain and suffering Rs.1,00,000/- Towards Medical expenses, Rs.5.50,000/- Towards conveyance, nourishing food and attendant charges Rs.50,000/- Towards loss of income during the period of treatment Rs.48,000/- Towards loss of amenities Rs.75,000/- Towards loss of future income Rs.2,59,200/- Towards future medical expenses Rs.20,000/- Towards loss of marriage prospects Rs.10,000/- Total Rs.11,12,200 12. According, the appeal filed by the appellant is allowed in part and the impugned judgment and award passed by the Tribunal in MVC No.4356/2002 is hereby modified, awarding the compensation of Rs.11,12,200/- instead of Rs.6,73,800/- awarded by the Tribunal (excluding interest on Rs.5,50,000/-awarded towards medical expenses). The enhanced compensation comes to Rs.4,38,400/-,with interest at 6% p.a., from the date of petition till the date of realization. The Insurer is directed to deposit the enhanced compensation with interest within a period of four weeks from the date of receipt of a copy of this judgment and award. Out of the enhance compensation of Rs.4,38,400/-, a sum of Rs.3,00,000/-with proportionate interest shall be invested in the Fixed Deposit in the name of appellant in any Nationalized or Scheduled Bank, for a period of five years and renewable for another five years with liberty to him to withdraw the interest accrued on it, periodically. The remaining sum of Rs.1,38,400/-with proportionate interest shall be released in favour of the appellant immediately, on deposit by the Insure. Draw the award accordingly.