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2010 DIGILAW 1225 (KAR)

V. Manu v. Doddaramanna

2010-11-29

H.S.KEMPANNA, N.K.PATIL

body2010
Judgment :- N.K. Patil J., This appeal by the claimant is directed against the impugned judgment and award dated 28th October 2005, passed in M.V.C.No.65/1999, by the Civil Judge (Sr.Dn) and JMFC, Chinthamani, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs. 4,84,500/- awarded in his favour as against his claim for Rs. 23.50 lakhs, is inadequate. 2. The appellant claims to be aged about 12 years, as on the date of accident, and a student. He was hale and healthy prior to the date of accident. That at about 4:00 P.M., on 21-05-1999, when the appellant was riding his cycle in the heart of his village Kagathi (Diguru), at that time, a Tractor along with Trailer, driven by its driver, came at great speed, in a rash and negligent manner, and hit against the rear side of the cycle, on account of which, he as dragged for several yards before the Tractor could come to a stop and he started bleeding profusely and his left foot crushed and sustained multiple complex fractures to his left hand. Immediately he was shifted to Government Hospital, Chinthamani for first-aid and thereafter shifted to Bangalore Hosmat Hospital, where he underwent several emergent operations to his left hand and left leg and unfortunately, his left foot was amputated leaving him physically handicapped permanently. 3. It is the case of the appellant that on account of the injuries sustained and amputation of his left foot, in view of the accident, he has undergone treatment for a period of 8 months and 20 days and also underwent 12 surgeries. He has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated reasonably. 4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 23.50 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 28th October 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. 4,84,500/- with interest at 6% per annum from the date of petition till the date of payment. 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. 4,84,500/- with interest at 6% per annum from the date of petition till the date of payment. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. We have heard learned counsel for appellant and learned counsel for respondents, for considerable length of time. 6. Learned counsel appearing for appellant vehemently submitted that the Tribunal seriously erred in not awarding reasonable compensation towards pain and sufferings, conveyance, nourishing food and attendant charges, loss of income during treatment period, and towards loss of future income, and further erred in not awarding any compensation towards loss of amenities, discomfort and unhappiness on account of disability, loss of education and cost of artificial limb. In support of his submission, he drew our attention to the evidence of the Doctor, who has stated that the appellant has undergone amputation below knee left leg which amounts to 90% disability and left elbow ankiylosed at 70°, which amounts to 66% disability. Further, he submitted that on account of the injuries and amputation of left foot on account of the accident, the appellant has lost his educational career apart from a bright future life. He has to be dependent on others for his day to day activities and has to frequently change the artificial limb till his survival. Further, on account of this permanent disability, his marriage prospects are also seriously affected. Therefore, he submitted, taking all these relevant aspects into consideration, reasonable compensation may be awarded by modifying the impugned judgment and award passed by Tribunal. 7. In response to the said submission, learned counsel appearing for the third respondent – Insurer, while trying to substantiate the judgment and award passed by Tribunal, fairly submitted that reasonable compensation may be awarded towards loss of amenities, discomfort and unhappiness on account of disability and towards cost of artificial limbs. 8. 7. In response to the said submission, learned counsel appearing for the third respondent – Insurer, while trying to substantiate the judgment and award passed by Tribunal, fairly submitted that reasonable compensation may be awarded towards loss of amenities, discomfort and unhappiness on account of disability and towards cost of artificial limbs. 8. After hearing learned counsel for the parties and after perusal of the judgment and award passed by Tribunal including the original records placed before us, the only point that arise for our consideration is as to: “Whether the quantum of compensation awarded by Tribunal is just and reasonable?” The occurrence of accident and the resultant injuries sustained and the amputation of left foot of the appellant are not in dispute. It is also not in dispute that he was aged about 12 years and was a student. Having regard to the age of the appellant, the Tribunal has rightly assessed his notional income at Rs. 15,000/- per annum, which is just and proper and we accept the same. The appellant has taken treatment for about 8 months and 20 days in the Hospital and underwent 12 surgeries. During this period, he must have under gone lot of unsaid pain and agony and must have spend considerable amount towards conveyance, nourishing food and attendant charges, apart from medical expenses. The Doctor has assessed the disability of 90% in respect of amputation below knee left leg, 66% disability towards left elbow ankiylosed at 70°. Further the Doctor has observed that in view of the amputation, he cannot work freely without the help of artificial limb and there is no possibility of recovery and he has become permanently handicapped. Having regard to all these aspects, the Doctor assessed the whole body disability of 36%, which is on the lower side. Having regard to the nature of injuries and the amputation of left foot, we re-assess the whole body disability at 75%, as against 36% assessed by Tribunal, to meet the ends of justice. The appellant, being aged about 12 years, at the time of accident, has to pull on the rest of his life with this disability and definitely he cannot be like a normal boy of his age. By this time, he must have been around 23 years of age, and his marriage prospects are severely affected. The appellant, being aged about 12 years, at the time of accident, has to pull on the rest of his life with this disability and definitely he cannot be like a normal boy of his age. By this time, he must have been around 23 years of age, and his marriage prospects are severely affected. Having regard to the nature of injuries sustained in the accident, we presume that he would have taken follow-up treatment and bed rest for considerable period of time, during which, there may be loss of income of the person attending on him. Therefore, having regard to the fact that the appellant being 12 years of age, at the time of accident, was represented by his father and next friend, we presume that his income would have been affected during the treatment period of appellant. The proper multiplier applicable in the case on hand is ‘15’ as per the decision of the Hon’ble Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 . Accordingly, taking into consideration all the above aspects, we redetermine compensation by awarding a sum of Rs. 1,50,000/- towards pain and sufferings as against Rs. 95,000/-; Rs. 30,000/- towards conveyance, nourishing food and attendant charges as against Rs. 15,000/-; Rs. 20,000/- towards loss of income of the father of appellant, during treatment period of appellant as against Rs. 10,900/-; Rs. 1,00,000/- towards loss of amenities, discomforts, and unhappiness on account of disability, Rs. 50,000/- towards loss of marriage prospects as against Rs. 20,000/- and a sum of Rs. 1,68,750/- (i.e. Rs. 15,000/- x ‘15’ x 75/100) towards loss of future income, as against Rs. 75,600/- awarded by Tribunal. 9. Further, the Tribunal has not awarded any compensation towards loss of education and cost of artificial limb. Therefore, having regard to the nature of injuries, amputation and the nature and duration of treatment, we award a sum of Rs. 20,000/- towards loss of education and Rs. 30,000/- towards cost of artificial limb. 10. However, a sum of Rs. 2,68,000/- awarded by Tribunal towards medical expenses is as per the medical bills produced and is just and reasonable. Hence, it does not call for interference. 11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. 10. However, a sum of Rs. 2,68,000/- awarded by Tribunal towards medical expenses is as per the medical bills produced and is just and reasonable. Hence, it does not call for interference. 11. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 28th October 2005, passed in M.V.C. No. 65/1999, by the Civil Judge (Sr.Dn) and JMFC, Chinthamani, is hereby modified, awarding a sum of Rs. 8,36,750/- as against Rs. 4,84,500/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows: Towards Pain and sufferings Rs. 1,50,000/- Towards Loss of amenities & Rs. 1,00,000/- enjoyment in life Towards Medical Expenses Rs. 2,68,000/- Towards conveyance, nourishing food Rs. 30,000/- and attendant charges Towards Loss of earning of father of appellant, Rs. 20,000/- during treatment period of appellant Towards loss of future income Rs. 1,68,750/- Towards loss of education Rs. 20,000/- Towards loss of marriage prospects Rs. 50,000/- Towards cost of artificial limb Rs. 30,000/- Total Rs. 8,36,750/- The third respondent – Insurance Company is directed to deposit the enhanced compensation of Rs. 3,52,250/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award. On such deposit by the Insurance Company, a sum of Rs. 2,50,000/- with proportionate interest shall be invested in Fixed Deposit, in any Nationalized or Scheduled Bank, in the name of the appellant, for a period of five years, renewable for another five years, with liberty reserved to him to withdraw the interest periodically. Remaining sum of Rs. 1,02,250/- with proportionate interest shall be released in favour of the appellant, immediately. Office to draw award, accordingly.