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2010 DIGILAW 891 (KAR)

Shivakumar v. Dasarath

2010-08-13

N.K.PATIL, S.N.SATYANARAYANA

body2010
Judgment :- N.K. Patil, J. This is a claimant’s appeal arising out of impugned judgment and award dated 21.6.2007 passed in MVC No.126/2004 on the file of the Fast Track Court – II and MACT Bidar. The Tribunal, by its impugned judgment and award, awarded a sum of Rs.1,16,250/-with interest @ 6% as against Rs.6,00,000/-claimed, on account of the injuries sustained in road traffic accident. The appellant herein claiming that, the quantum of compensation awarded by the Claims Tribunal is inadequate and requires enhancement, felt necessitated to present this appeal. 2. The brief facts of the case is that, the appellant aged about 8 years, by occupation he was student, and represented by his father who is the natural guardian. At about 2.30 p.m. on 26.10.2003, the appellant along with his mother was proceeding towards Bemalkheda in an Auto Rickshaw bearing No.KA-39/2150. The Driver of the vehicle driven the same at high speed in a rash and negligent manner. When the vehicle came near the house of one Annappa on Bemalkheda-Karaknahalli road, another auto bearing No.KA-39/2218, came from opposite direction at high speed, in a rash and negligent manner. Both the vehicles dashed forcibly, on account of which, the appellant has sustained grievous injuries on his right leg, shoulder, chest and fore-head. The right leg of the appellant was amputed on the spot. Immediately, he has been shifted to Government Hospital, Bidar for treatment. He took treatment for more than 1 ½ month. Thereafter, he took treatment in private hospital. Subsequently, taking all these relevant facts into consideration, the appellant has filed claim petition under Section 166 of the M.V. Act claming compensation of Rs.6,00,000/-on account of the injuries sustained in the road traffic accident. 3. The said claim petition came up for consideration before the Tribunal. The Tribunal, in turn, after critical evaluation of the oral and documentary evidence and other relevant material on the file allowed the claim petition in part, awarding a sum of Rs.1,16,250/-with interest @ 6% per annum from the date of petition till the date of realization. 4. The principal submission canvassed by the counsel for the appellant is that, injustice is caused in not fixing the liability on the insurer of the two autos, which are involved in the accident as a matter of fact. 4. The principal submission canvassed by the counsel for the appellant is that, injustice is caused in not fixing the liability on the insurer of the two autos, which are involved in the accident as a matter of fact. This fact has been notified in the cause-title of the petition and it has been referred and there is neither any discussion nor finding recorded in waiving liability on the part of the insurer of autos which are insured with the respondent-insurance company, respondent Nos.2 and 4, respectively. 5. Further, he submitted that, the Tribunal has erred in not taking into consideration that the injured is a boy of 8 years studying in the school and there is amputation of the right leg below knee and the Doctor has assessed disability @ 70% to the limb. The Tribunal has rightly justified in assessing permanent disability of the injuries at 50%, but committed a grave error in taking Rs.7,500/-as yearly income and awarding only Rs.56,206/-instead of Rs.1,12,500/-. Further, he submitted that, the Tribunal has erred in not awarding reasonable compensation towards pain and suffering, loss of amenities and also not awarded any compensation towards loss of marriage prospects and future medical expenses. 6. To substantiate his case, he places reliance on the judgment of the Division Bench of this court in the case of Iranna vs. Mohammadali Khadarsab Mulla and Anther – 2004 ACJ 1396 and in the case of Fakkirappa vs. Yallawwa and Another – 2004 ACJ 1141. The Tribunal has infact, referred both the judgments in the order impugned, but not followed the ratio of the settled law laid down by the Division Bench of this Court consistently. Therefore, he submitted that, the order of the Tribunal fixing the liability on the owner is liable to be set-aside by fixing liability on the respondent nos.2 and 4 and awarding just and reasonable compensation. 7. Against this the learned counsel appearing for the respondent nos.2 and 4, inter-alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is on due consideration of the relevant material and that, the compensation awarded is just and reasonable, but fairly admitted that, the compensation awarded requires enhancement, in view of the Apex Court’s judgment and also the judgment of the Division Bench of this Court. 8. 8. After careful consideration of the submissions made by the learned counsel appearing for the parties, the points that arise for consideration in the instant appeal are as follows: i) Whether the Tribunal is justified in not fixing the liability on the insurer respondent nos.2 and 4, in the light of the fact that both the auto rickshaws involved in the accident were insured as on the date of the accident? ii) Whether the Tribunal was justified in awarding just and reasonable compensation on account of the injuries sustained by the appellant in the road traffic accident? 9. We have perused the judgment and award passed by the Tribunal carefully and evaluated the original records on the file and after extensive evaluation, what emerges is that, as a matter of fact, the auto rickshaw involved in the accident as referred to above was duly insured with respondent nos.2 and 4 as on the date of the accident. The Tribunal, in fact, has referred the same but there is no discussion nor reason assigned by the Tribunal for waiving liability on respondent nos.2 and 4. Therefore, we are of the considered view that, as on the date of the accident, the auto rickshaws involved in the accident bearing registration nos.KA-39/2150 and KA-39/2218 were duly insured with respondent nos.2 and 4. Therefore, we fix the liability on respondent nos.2 and 4 respectively. 10. Further, it is not in dispute that the appellant is aged about 8 years, by occupation student, studying in a school and the occurrence of the accident, injuries sustained in the road traffic accident is also not disputed. After careful consideration of the oral and documentary evidence of PW-1 and PW-2 and exhibits marked as Exhibits P1 to P11, what emerges is that, there is right leg amputation below the knee of the appellant. After careful consideration of the oral and documentary evidence of PW-1 and PW-2 and exhibits marked as Exhibits P1 to P11, what emerges is that, there is right leg amputation below the knee of the appellant. The doctor has assessed 70% disability to the limb as per the Schedule and in view of the decision laid down by the Apex Court and Division Bench of this Court, we can safely assess the disability @ 50% to the whole body and it is further not in dispute that the appellant has undergone treatment for a period of 1 ½ month as inpatient, he has undergone pain and agony during the period of treatment and has spent reasonable sum on medical expenses, directing, attendant charges, transportation, rich food etc., on account of the injuries sustained. Due to amputation of the right leg below the knee, the loss of marriage prospects has to be looked into and if the notional income of the appellant is taken at Rs.15,000/-p.a. and disability @ 50% to the whole body and taking the appropriate multiplier of 17, we re-determine the compensation on the head of loss of future income. 11. Further, as rightly pointed out by the learned counsel for the appellant in the judgment of the Division Bench of this Court in Iranna Vs. Mohammadali Khadarsab Mulla and Anr. – 2004 ACJ 1396 , regarding future medical expenses at Para – 20, the tentative cost of the artificial leg is assessed. This Court in the case of Fakkirappa vs. Yallawwa -2004 ACJ 1141 has opined and held that – “cost of artificial leg would be in the range of Rs.17,000 to Rs.32,000. Even in this case, no concrete evidence is forthcoming, we think it appropriate to apply the same costing for artificial leg as is done in the aforesaid case at Rs.20,000/-keeping in mind that the growth of the boy during the next 20 years would not be uniform, there can be no necessity to replace artificial leg every year. Also allowing for some improbables in life, we think it appropriate to award a sum of Rs.1,50,000/-as just compensation towards future medical expenses”. We accept the same. 12. Also allowing for some improbables in life, we think it appropriate to award a sum of Rs.1,50,000/-as just compensation towards future medical expenses”. We accept the same. 12. Having regard to the facts and circumstances as stated above, we deem it fit to award the following compensation as just and reasonable as permissible under the law in the light of the well settled law laid down by the Apex Court in a catena of judgments as follows: 1. Pain and suffering Rs.50,000/- 2. Medical Expenses : Rs.40,000/- 3. Loss of amenities : Rs.75,000/- 4. Loss of marriage prospects : Rs.50,000/- 5. Loss of future income 6. Future Medical expenses : Rs.1,50,000/- (Rs.15,000 x 15 x 50/100) : Rs.1,12,500/- :Rs.4,77,500/- Accordingly, the appellants is entitled for a sum of Rs.4,77,500/-as against Rs.1,16,250/-awarded by the Tribunal. The enhanced compensation comes to Rs.3,61,250 (4,77,500 – 1,16,250), shall carry interest @ 6% per annum from date of petition till the date of realization. It is needless to clarify that the appellant is not entitled to any interest on the future medical expenses of Rs.1,50,000/-. 13. For the foregoing reasons as stated above, we pass the following: .(i) Appeal is allowed in part. .(ii) The impugned judgment and award passed by the Tribunal is modified, awarding an enhanced compensation of Rs.3,61,250/-which shall carry interest at the rate of 6% p.a. from the date of petition till the date of realization. (iii) Out of the enhanced compensation of Rs.3,61,250/-, a sum of Rs.3,00,000/-with proportionate interest shall be deposited in the name of the appellant in any nationalized Bank till he attains the age of majority. The natural guardian is entitled to withdraw the accrued interest quarterly, for the welfare of the appellant. .(iv) The remaining enhanced compensation of Rs.61,250/-with proportionate interest shall be released in favour of the appellant, through the natural guardian immediately, after deposit of the sum by the insurer respondent nos.2 and 4 equally. .(v) Further, the respondent nos.2 and 4 are directed to deposit the enhanced compensation in equal proportion with interest @ 6% per annum from the date of petition till the date of realization excluding interest on Rs.1,50,000/-awarded towards future medical expenses, within a period of 4 weeks with interest. The office is directed to draw award accordingly.