Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 1084 (KAR)

K. Kanthraj v. K. Chandrashekhar

2011-11-08

N.K.PATIL, V.SURI APPA RAO

body2011
Judgment N.K. Patil, J. This appeal by the claimant is directed against the impugned judgment and award dated 18th December 2006, passed in MVC No.3264/2004, on the file of the XVIII Addl. Judge, Member, MACT-4, Bangalore (SCCH-4), (for short, ‘Tribunal’), for enhancement of compensation on the ground that, the compensation of Rs. 3,50,730/- awarded in his favour as against his claim for Rs. 20.00 lakhs, is inadequate. 2. The appellant claims to be aged about 32 years, working as Driver, getting income of Rs. 4,000/-per month. He was hale and healthy prior to the date of accident. That at about 9:30 P.M., on 28-12-2003, when the appellant was returning from Dharmasthala, while proceeding in the Tata Sumo bearing No.KA-01/N-9946, on Mangalore-Bangalore Road, at that time, the driver of the said vehicle drove the same in a rash and negligent manner and dashed against the goods vehicle. As a result of the same, the appellant sustained several head injuries, inkron vertibra, bleeding fracture of several edema, and other injuries. He was immediately shifted to Adichunchanagiri Hospital, at Bellur Cross for first aid and thereafter shifted to Hosmat Hospital, where he was treated as inpatient in the said Hospital. 3. It is the case of the appellant that 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.20.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 18th December 2006. 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.3,50,730/- with interest at 6% per annum from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. Learned counsel appearing for appellant at the outset submits that the Tribunal seriously erred in not awarding reasonable compensation, inasmuch as it has assessed the monthly income of the appellant at only Rs.1,500/- even though the accident is of the year 2003. 5. Learned counsel appearing for appellant at the outset submits that the Tribunal seriously erred in not awarding reasonable compensation, inasmuch as it has assessed the monthly income of the appellant at only Rs.1,500/- even though the accident is of the year 2003. Further, submits that the Tribunal has not awarded reasonable compensation towards loss of income during treatment period and no compensation is awarded towards loss of future income. In view the injuries sustained in the accident, the marriage prospects of the appellant are also affected. Therefore, he submits that reasonable enhancement may be made, by modifying the impugned judgment and award passed by Tribunal. 6. As against this, learned counsel appearing for Insurer sought to justify the impugned judgment and award passed by Tribunal, stating that the same is passed after appreciation of the oral and documentary evidence available on file and hence, interference by this Court is uncalled for. 7. We have heard learned counsel for appellant and learned counsel for Insurance Company, for considerable length of time. 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: “Whether the quantum of compensation awarded by Tribunal is just and reasonable” The compensation awarded by this Court is on the lower side and needs to be enhanced. The occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 32 years and working as Driver. The appellant has taken treatment for a period of two months in the Hospital as inpatient and during this period, he would have under gone lot of unsaid pain and agony and must have also spent considerable amount towards conveyance, nourishing food and attendant charges, apart from medical expenses. The PW2 – Doctor has assessed whole body disability at 90%, but in cross examination, he opined that the appellant has 60% mental disability. The appellant, being aged about 32 years, at the time of accident, apart from being a mentally disabled person, had to pull on the life with the physical disability also for the rest of his life and he cannot do the work as he was doing before. The appellant, being aged about 32 years, at the time of accident, apart from being a mentally disabled person, had to pull on the life with the physical disability also for the rest of his life and he cannot do the work as he was doing before. Having regard to the nature of injuries sustained in the accident and also disability, we presume that he would have taken follow-up treatment and bed rest at least for a period of six months. It is stated that he was earning a sum of Rs.4,000/- per month. The same is a bit exaggeration. Having regard to the age, avocation and the year of accident, we re-assess the monthly income of the appellant at Rs.3,000/-. So far as disability is concerned, the Doctor has assessed 90% whole body disability and 60% mental disability. The appellant is a driver and as the date of accident, he was driving the vehicle on NH-48 from Dharmasthala to Bangalore. It shows that he is a well trained and efficient driver. The Tribunal has assessed the whole body disability at 50% and the same is on the lower side, having regard to his avocation and the nature of injuries sustained. PW3-Psychiatrist has opined that the appellant has sustained bilateral frontal lobe functioning is markedly affected, right parietal lobe functioning is markedly affected, right temporal lobe functioning is markedly affected, left parietal lobe functioning is partially affected and left temporal lobe functioning is markedly affected. She has also further opined that because of the injuries sustained, he has lost the capacity to put cloths memory power, thinking capacity, make calculation and to do his day-to-day activities. Having regard to these aspects, we are of the view that, because of the injuries sustained, he cannot continue in the driving profession and so far as the earning capacity is concerned, he has got 100% disability. Therefore, having regard to the peculiar facts and circumstances of the case, we re-assess the whole body disability for the purpose of calculating loss of future income at 100%. Further, in view of the accident and disability, his marriage prospects are also affected. Accordingly, taking into consideration all the above aspects, we re-determine compensation by awarding a sum of Rs.75,000/- towards pain and sufferings as against Rs.35,000/-, Rs.40,000/- towards conveyance, nourishing food and attendant charges as against Rs20,000/-. Further, in view of the accident and disability, his marriage prospects are also affected. Accordingly, taking into consideration all the above aspects, we re-determine compensation by awarding a sum of Rs.75,000/- towards pain and sufferings as against Rs.35,000/-, Rs.40,000/- towards conveyance, nourishing food and attendant charges as against Rs20,000/-. Rs.18.000/- towards loss of income during treatment period, taking the income of the appellant at Rs.3,000/- per month for a period of six months, Rs.50.000/- towards loss of amenities, discomforts, and unhappiness on account of disability as against Rs.30.000/-. And Rs.5,76,000/-(i.e. Rs.3,000/-x12x’16’x100% towards loss of future earnings as against Rs.1,44,000/- awarded by Tribunal and a sum of Rs.50,000/- towards loss of marriage prospects. 9. However, a sum of Rs.1,15,730/- awarded by Tribunal towards medical expenses is as per the medical bills produced and is just and proper. Hence, it does not call for interference. 10. 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 18th December 2006. Passed in MVC No.3264/2004, on the file of the XVIII Addl. Judge, Member, MACT-4, Bangalore (SCCH-4), is hereby modified, awarding a sum of Rs.9,24,730/- as against Rs.3,50,730/- 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. 75,000/- Towards Loss of amenities & enjoyment in life Rs. 50,000/- Towards Medical Expenses Rs. 1,15,730/- Towards conveyance, nourishing food and attendant charges Rs. 40,000/- Towards Loss of earning during treatment period Rs. 18,000/- Towards loss of marriage prospects Rs. 50,000/- Towards loss of future earnings Rs. 5,76,000/- Total Rs. 9,24,730/- The Insurance Company is directed to deposit the enhanced compensation of Rs. 5,74,000/-, 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.3,00,000/- with proportionate interest, shall be invested in Fixed Deposit, in any Nationalized or Scheduled Bank, in the name of appellant, for a period of five years, renewable for ten years, with liberty reserved to him to withdraw the interest periodically. The remaining sum of Rs.2,74,000/- with proportionate interest shall be released in favour of appellant, immediately. Office to draw award, accordingly.