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2010 DIGILAW 877 (KAR)

Vijayalaxmi v. Sri Paramsheshwar

2010-08-10

N.K.PATIL, S.N.SATYANARAYANA

body2010
JUDGMENT N.K. Patil, J : This is a claimant's appeal, being aggrieved by the impugned judgment and award dated 13.3.08 passed in MVC No. 1146/ 08 on the file of the Prl. Civil Judge (Sr. Dn) and MACT at Gulbarga. The Tribunal, by its impugned judgment and award, awarded a sum of Rs. 6,78,260/- under different heads with interest at 6% p.a. from the date of petition till realisation as against the claim of the appellant for Rs. 30,75,000/ - on account of the injuries sustained in the road traffic accident. The appellant herein claiming that, the quantum of compensation awarded by the Claims Tribunal is inadequate in so far as it relates to pain and suffering, conveyance, nourishment, food and attendant's charges, loss of amenities, discomforts and unhappiness, loss of marriage prospects and future medical expenses and requires enhancement presented this appeal. 2. The brief facts of the case are that, the appellant claimed that, she is aged 24 year, studying in II BHMS and she was hale and healthy prior to the accident. Unfortunately, at about 11.30 a.m. on 16.6.2008 when she was proceeding on her TVS Scooty bearing registration No. KA 32/U3058 near Rajapur ring road, at that time, suddenly a lorry bearing registration No. KA. 39/6084 came at a high speed in rash and negligent manner and dashed to the TVS scooty of the appellant, due to which she fell down and sustained grievous injuries. Immediately, she has been shifted to Basaveshwara Hospital at Gulbarga. Thereafter, she was shifted at Dr. Mallikarjun Hospital, Sola pur and she has undergone treatment for more than 37 days and has also undergone 5-6 operations. After examining the appellant the Doctor has assessed the permanent disability of 60% to the whole body and further case of the appellant is that, she has spent huge sums of money towards medical expenses, conveyance, food, nourishment, attendant's charges and there is an amputation of right hand thumb and she has lost complete mobility of right hand up to the shoulder. Contending all these facts, she filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.30, 75,000/-. Contending all these facts, she filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.30, 75,000/-. The said claim petition had come up for consideration before the Tribunal and the Tribunal in turn after hearing the appellant and respondents and after evaluation of the oral and documentary evidence and other relevant materials available on record, has allowed the petition in part and awarded a sum of Rs.6,78,260/with interest at 6% p.a. from the date of petition till the date of realisation. But, however the tribunal has committed a grave error in not awarding jut and reasonable compensation towards pain and suffering, conveyance, nourishment, food and attendant’s charges, loss of amenities, discomfort and unhappiness, loss of marriage prospects and future medical expenses. Therefore, the appellant felt necessitated to present this appeal, seeking enhancement of compensation. 3. The principal submission canvassed by the learned Counsel appearing for the appellant is that, the Tribunal has committed an error in not considering the nature of injuries sustained and that, there is amputation of right hand thumb and she has lost completely the right hand up to the shoulder and she has undergone operation for There than 5-6 times and was an inpatient for about 37 days and the doctor has assessed the permanent disability at 60% to the whole body and in not awarding just compensation towards pain and suffering, conveyance, nourishment, food and attendant's charges, loss of amenities, discomfort and unhappiness, loss of marriage prospects and future medical expenses. The doctor has adduced in his evidence that, the cost of future medical expenses would be more than Rs. 4,00,000/-. Therefore, he submitted that the judgment and award passed by the tribunal is liable to be modified and just and reasonable compensation should be awarded having regard to the future prospects of an young girl aged about 23 years. 4. As against this, learned Counsel appearing for the insurer interalia contended that, the impugned judgment and award is just and reasonable and the Tribunal, after the deliberation and consideration of the material on record, has awarded reasonable compensation and the same does not call for interference by this Court. 5. We have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondent. 6. 5. We have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondent. 6. After careful consideration of the submission of the learned Counsel appearing for the parties at considerable length and after perusal of the impugned judgment and award, the only point that arises for consideration is: "Whether the compensation awarded by the Tribunal is just and reasonable?" 7 . We have perused the judgment and award passed by the Tribunal and after growing through the original records what emerges is that, the compensation awarded towards medical expenses at Rs. 3,55,260/- loss of future income at Rs. 1,53,000/- and disfiguration of right hand at 10,000 / is just and proper and therefore, does not call for interference. However, Tribunal has committed an error in awarding only Rs. 25,000/- towards pain and suffering, Rs. 10,000/- towards conveyance, nourishment, food and attendant's charges, Rs. 25,000/- towards loss of comfort and amenities. Rs. 50,000/- towards loss of marriage prospects, Rs. 50,000/- towards future medical expenses and the same is inadequate for the reason that it is not disputed that, the appellant has undergone treatment as an inpatient for 37 days in the hospital and undergone operation for 5-6 times and the doctor, after examining the appellant, has opined that, she was operated on 19.6.2008 when amputation of right thumb which was not viable was done and V-Y advancement skin flap was done for the exposed humerus bone and forearm advancement flap done with 'K' wire fixation of the wrist was done and there is vascular surgery for exposed humerus and forearm skin flap for exposed ulna and split skin graft was done. The injury sustained are grievous in nature and he has assessed the permanent disability at 60% to the whole body as per Ex.P10, a certificate issued by the Doctor and his signature marked at Ex.P10(a) and P9 is the discharge summary issued at the Apollo Hospital, Hyderabad and further stated that she requires further treatment for plastic surgery to improve function in the remaining finger in the form of free muscle transfers for flexors and' tendon transfers and at the same time, orthopedic surgery for wrist arthrodises with proximale role carpectony and approximate expenditure at the Apollo Hospital for these treatment would be Rs. 4,00,000/-. 4,00,000/-. The respondent/insurer has not elicited anything from the evidence of the Doctor nor corroborated by producing any document contradicting the evidence of the Doctor. The Tribunal is not justified in not taking into consideration the nature of injuries, duration of treatment and pain and agony suffered during the treatment period, by undergoing 5-6 operations on account of the injuries sustained in the road traffic accident and she has undergone treatment in 3 hospitals, Basaveshwara Hospital Gulbarga, Dr. MallikaIjun Hospital, Sola pur and Apollo Hospital, Hyderabad. These aspects of the matter has neither been looked into or considered nor appreciated by the Tribunal. The Tribunal has also not taken into consideration the discomfort throughout her life and that, on account of the injuries sustained, she has lost her entire hand and there is amputation of right thumb and she is just aged 23 years and studying II year BHMS course at Gulbarga college and the Doctor has opined in his evidence as referred above that, tentative cost of Rs. 4,00,000/- would be incurred towards future medical expenses. Taking these factors into consideration, we deem it fit to award ajust and reasonable compensation as follows: (i) Pain and suffering – Rs. 50,000/- as against Rs. 25,000/-. (ii) Conveyance, nourishments, food and attendant's charges Rs. 25,000/- as against 10,000/-. (iii) Loss of marriage prospects - 1,00,000/- as against Rs. 50,000/-. (iv) Future medical expenses – Rs. 2,00,000/- as against Rs. 50,000/-. B. For the foregoing reasons as stated above, we hold that the appellant is entitled to total compensation of Rs. 9,43,260/- under the following heads: (1) Pain and Suffering – Rs. 50,000/- (2) Medical expenses – Rs. 3,55,260/- (3) Conveyance, nourishment, food and attendant's charges – Rs. 25,000/- (4) Loss of future income - Rs. 1,53,000/- (5) Loss of amenities, discomfort and unhappiness - 50,000/- (6) Loss of marriage prospects - 1,00,000/- Future medical expenses - 2,00,000/- Disfiguration of right hand - 10,000/- Total – Rs. .9,43,260/-. 9. In all, the appellant is entitled to compensation of Rs. 9,43,260/- as against Rs.6, 78,260/- awarded by the Tribunal. The enhanced compensation comes to Rs. 2,65,000/- and the interest at 6% p.a. from the date of petition till the date of realisation is awarded on the enhanced compensation of Rs. .65,000/- and no interest awarded towards future medical expenses. 10. Hence, we pass the following ORDER (i) Appeal is allowed in part. The enhanced compensation comes to Rs. 2,65,000/- and the interest at 6% p.a. from the date of petition till the date of realisation is awarded on the enhanced compensation of Rs. .65,000/- and no interest awarded towards future medical expenses. 10. Hence, we pass the following ORDER (i) Appeal is allowed in part. (i) In modification of the judgment and award passed by the Claims Tribunal, the appellant is entitled to compensation of Rs. 9,43,260/- as against Rs. 6,78,260/- awarded by the Tribunal. The enhanced compensation comes to Rs. 2,65,000/-. (ii) The 2nd respondent / insurer is directed to deposit the enhanced amount of compensation of Rs. . 2,65,000/- with interest at 6% p.a. from the date of petition till the date of deposit on Rs. 65,000/- of the enhanced compensation, within four weeks from the date of receipt of a copy of this order. (iii) Out of the enhanced compensation of Rs. 2,65,000/- Rs. 2,00,000/shall be deposited in any of the Nationalised Bank / Scheduled Bank for a period of five years renewable for another five years. Liberty has been reserved to the appellant to withdraw the interest periodically. (iv) Remaining enhanced compensation of Rs. 65,000/- with interest shall be released in favour of the appellant immediately on deposit of the said sum by the 2nd respondent / insurer. Office to draw the award accordingly. Appeal allowed in part.