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2010 DIGILAW 242 (KAR)

Shashidharachar Purvochar Kumar v. The Divisional Controller

2010-02-25

A.S.PACHHAPURE, N.K.PATIL

body2010
JUDGMENT 1. Admit. This is a claimant’s appeal directed against the judgment and award dated 20-05-2005 in MVC No. 20/1999 passed by the Addl.Civil Judge (Sr.Dn) & Addl.Motor Accidents Claims Tribunal, Ranebennur. By the impugned judgment and award, the Tribunal has awarded compensation of Rs. 5.90,000/- with interest at 6% p.a. from the date of petition till the date of payment to the claimant on account of the injuries sustained by him in a road traffic accident. The compensation awarded is inadequate and requires enhancement. Hence this appeal. 2. The brief facts of the case are: The appellant claiming that he is aged about 35 years and he is a carpenter earning more than Rs. 7,000/- per month. He was hale and healthy prior to the accident. When things stood thus, on 22-4-1998 at about 10.30 a.m. the appellant was travelling in a KSRTC bus bearing registration No. KA-25/F-209 from Sunakalbidari to Ranebennur. The said bus was driven by its driver in a rash and negligent manner and in high speed. When the bus came near Kusagur nala, the driver lost control over the bus, as a result of which, the bus went off the road and toppled down in a road side ditch, on account of which, the appellant sustained grievous injuries. The appellant became unconscious and immediately he was shifted to the hospital. He sustained fracture of left tibia, compound fracture of middle 1/3rd of left tibia. There was head injury and damage to the nerve, which led to blindness of left eye and deafness in the left ear. He has undergone treatment in the hospital nearly for a period of one year and has also undergone three surgeries. He has spent considerable amount towards his treatment. Therefore, he was constrained to file a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 12 lakhs against the respondent. The said claim petition came up for consideration before the Tribunal and the Tribunal, after assessing oral and documentary evidence and other material, awarded a compensation of Rs. 5,990,000/- with interest at 6% p.a. from the date of petition till date of payment. Being dissatisfied with the compensation awarded, he appellant has filed this appeal seeking enhancement of the compensation. 3. We have heard the learned counsel appearing for the appellant and respondent. 4. 5,990,000/- with interest at 6% p.a. from the date of petition till date of payment. Being dissatisfied with the compensation awarded, he appellant has filed this appeal seeking enhancement of the compensation. 3. We have heard the learned counsel appearing for the appellant and respondent. 4. After careful perusal of the impugned judgment and award passed by the Tribunal and after evaluation of original records at threadbare, what emerges is that the Tribunal, after assessing oral and documentary evidence, has rightly awarded just and reasonable compensation of Rs. 85,000/- towards pain and suffering, Rs. 30,000/-towards medical expenses, Rs. 48,000/-towards loss of income during laid up period and Rs. 10,000/- towards loss of expectancy of life. Therefore, the compensation awarded under the said heads do not call for interference. 5. However, the Tribunal has erred in not awarding reasonable compensation towards conveyance, nourishing food and attendant charges. It is not in dispute that the appellant has undergone treatment for more than one year on different dates and has undergone three surgeries. He must have spent considerable amount towards conveyance, nourishing food and attendant charges. Taking these factors into consideration, we award a sum of Rs.50,000/- as against Rs. 27,000/- awarded by the Tribunal. 6. Further, the Tribunal has erred in awarding compensation of Rs. 30,000/-towards loss of amenities and unhappiness which is inadequate and the same requires enhancement for the reason that the appellant has undergone treatment for a period of one year as an in patient in the hospital and has also undergone three surgeries. The doctor has assessed the physical permanent partial disability to the extent 80% in so far as hearing capacity of the appellant is concerned. There is deafness in the left ear, loss of hearing capacity of right ear, blindness in the left eye and there is non-union of fracture of left lower limb. The appellant is not in a position to do carpentry work as he was doing earlier. Therefore, taking into account these factors, we deem it appropriate to award a sum of Rs.50,000/- towards loss of amenities and discomfort as against Rs.30,000/- awarded by the Tribunal. 7. Further, the Tribunal has awarded a sum of Rs. 3,60,000/-towards loss of future income. The appellant is not in a position to do carpentry work as he was doing earlier. Therefore, taking into account these factors, we deem it appropriate to award a sum of Rs.50,000/- towards loss of amenities and discomfort as against Rs.30,000/- awarded by the Tribunal. 7. Further, the Tribunal has awarded a sum of Rs. 3,60,000/-towards loss of future income. The amount awarded is inadequate and the same requires enhancement for the reason that the doctors- P.Ws.4 and 6 have assessed visual disability with blindness of left eye to the extent of 40%, permanent partial disability to the extent of 40% to 50% in so far as left leg is concerned and physical permanent partial disability to the extent of 80% in so far as hearing capacity of the appellant is concerned. Further, the accident occurred on 24-4-1998. The income of the appellant has been rightly assessed by the Tribunal at Rs. 4,000/- per month. However, disability to the extent of 50% to the whole body assessed by the Tribunal is insufficient for the reason that there is 40% visual disability with blindness of left eye as deposed by P.W.4 and P.W.6 has deposed that there is 80% of physical permanent partial disability in so far as hearing capacity of the appellant is concerned. Taking into consideration these factors, we can safely assess the permanent disability of 70% to the whole body instead of 50% assessed by the Tribunal. The appellant is aged about 35 years and the appropriate multiplier is 16 in the light of the law laid down in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in 2009 ACJ 298 and we re-determine the compensation towards loss of future income at Rs. 5,37,600/-(Rs. 4000 x 12 x 16 x 70%) as against Rs. 3,60,000/- awarded by the Tribunal. 8. For the foregoing reasons, the instant appeal filed by the appellant is allowed in part. The impugned judgment and award passed by the Tribunal is modified and a compensation of Rs. 8,10,600/- is awarded as against Rs. 5,90,000/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of realization. The break-up is as follows : 1. Pain and suffering Rs.85,000/- 2. Medical expenses Rs.30,000/- 3. Conveyance, nourishing food and attendant charges Rs.50,000/- 4. Loss of income during laid up period Rs.48,000/- 5. 8,10,600/- is awarded as against Rs. 5,90,000/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of realization. The break-up is as follows : 1. Pain and suffering Rs.85,000/- 2. Medical expenses Rs.30,000/- 3. Conveyance, nourishing food and attendant charges Rs.50,000/- 4. Loss of income during laid up period Rs.48,000/- 5. Loss of amenities, discomfort and unhappiness Rs.50,000/- 6. Loss of future income Rs.5,37,600/- 7. Loss of expectancy of life Rs.10,000/- Total: Rs. 8,10,600/- (i) The respondent-insurance company is directed to deposit the total compensation amount with interest within a period of Four weeks from date of receipt of a copy of the judgment and award. (ii) Out of the total compensation of Rs. 8,10,600/-, 50% of the compensation with proportionate interest shall be deposited in a fixed deposit in a Nationalised Bank/ Scheduled Bank for a period of five years renewable for another period of five years. (iii) The appellant is permitted to withdraw the accrued interest periodically. (iv) The remaining 50% of compensation amount with proportionate interest shall be released in favour of the appellant on deposit of the same by the respondent-insurance company. (v) Draw up the award accordingly.