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2011 DIGILAW 1112 (KAR)

Ezhil Vannan v. Anandkumar

2011-11-17

N.K.PATIL, V.SURI APPA RAO

body2011
Judgment :- 1. These two appeals by the claimant and the Corporation are arising out of the same judgment and award dated 19/03/2010 passed in MVC No.3965/2007 on the file of the 14th Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore, (hereinafter referred to as ‘Tribunal’ for short). 2. The Tribunal by its judgment and award, has awarded a sum of Rs.7,25,310/- with interest at 8% p.a., from the date of petition till the date of deposit as against the claim made by the claimant for a sum of Rs.2,71,10,000/-, on account of the injuries sustained by him in the road traffic accident. 3. In brief, the facts of the case are; The claimant was aged about 29 years, working as Lecturer in HKBK College of Engineering, Bengaluru and drawing the salary of Rs.18,900/- per month as per Ex.P8. He was hale and healthy prior to the accident. That at about 8.15 a.m., on 3.5.2007 the claimant was riding his motor cycle bearing Reg.No.KA.04.EJ4179 along with a pillion rider and when he came near Hebbala Ring Road, Bengalure, at that time, the BMC bus bearing Reg.No.KA.05.B.5914 driven by its driver came in a rash and negligent manner with high speed and dashed against his motor cycle. Due to which, both the rider and the pillion rider fell down and at that time, the trailer lorry bearing Reg.No.PB.06.F.9211 driven by its driver in a rash and negligent manner which was coming behind the motor cycle, ran over the rider and pillion rider. As a result of which, pillion rider died at the spot and the claimant sustained injuries, namely, swelling, tenderness and crepitus over lower 1/3rd of left leg with crushing of popleteal artery with fracture of left fibula, degloving lacerated wound on dofsum of left foot extending on to medial malleolai, a lacerated wound on the dorsum of right foot 7x5 cm and tenderness over pelvis and left thigh with diastases of public symphusis. Immediately, he has been shifted to hospital, wherein, he has taken treatment as inpatient for 3½ months, underwent operation and thereafter, he has taken bed rest and follow up treatment. Immediately, he has been shifted to hospital, wherein, he has taken treatment as inpatient for 3½ months, underwent operation and thereafter, he has taken bed rest and follow up treatment. It is the further case of the claimant that, he has spend considerable amount towards medical expenses, conveyance and other incidental charges, on account of the injuries sustained by him in the said accident, his left leg was amputated below knee, artificial limb is fitted to the stump and he walks with it, he has suffered permanent disability, the Doctor has assessed the disability at 63% to the left lower limb, 6% to right lower limb and at 21.6% to the whole body and it is permanent in nature. Therefore, the claimant has filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation. The said claim petition had come up for consideration before the Tribunal. The Tribunal after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.7,25,310/-as compensation under different heads with interest at 6% p.a., from the date of petition till its deposit. Being aggrieved by the said judgment and award, the claimant has filed M.F.A.No.5789/2020 contending that, the compensation awarded by the Tribunal is inadequate and it requires to be enhanced and the Corporation has filed M.F.A.No.8801/2010 contending that, the liability fastened on it cannot be sustained, on the ground that, the vehicle which met with an accident was a hired bus, the said vehicle was insured as on the date of the accident and therefore, Insurer is liable to be satisfy the award amount. 4. We have heard learned counsel appearing for the parties. 5. Learned counsel for the claimant submitted that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, conveyance, nourishing food and attendant charges, loss of amenities and also erred in not awarding any compensation towards loss of income during the period of treatment and towards future medical expenses and purchase of artificial leg. To substantiate his submission, he has taken us through the relevant records as discussed by the Tribunal and submitted that the amputation was done on the left leg of the claimant and this aspect ought to have been considered by the Tribunal while awarding compensation. To substantiate his submission, he has taken us through the relevant records as discussed by the Tribunal and submitted that the amputation was done on the left leg of the claimant and this aspect ought to have been considered by the Tribunal while awarding compensation. Further, he submitted that, the claimant may be awarded the compensation of Rs.1,50,000/-towards injury pain and sufferings, Rs.1,00,000/-towards loss of amenities and Rs.2,00,000/- towards purchase of artificial leg, in view of the judgment of the Apex Court in the case of Govind Yadav Vs. The New India Insurance Company Limited (Civil Appeal No.9014/2011 disposed of on 1st November 2011). Therefore, he submitted that, the impugned judgment and award passed by the Tribunal is liable to be modified. 6. Learned counsel for Corporation, at the outset submitted that, direction issued by the Tribunal to the Corporation to satisfy the award amount cannot be sustained and is liable to be set aside. To substantiate the said submission, he placed reliance on the judgment of the Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Kulsum and other reported in 2011 ACJ 2145 and submitted that, when the vehicle was insured as on the date of accident, the insurer is liable to satisfy the award and not the Corporation, on the ground that, Corporation was the hirer of the said vehicle. Therefore, he submitted that, the impugned judgment and award is liable to be set aside, fastening the liability on the Insurer. 7. As against this, learned counsel for the Insurer, inter-alia, contended and supported the impugned judgment and award passed by the Tribunal. Further, they submitted that, the Tribunal after due consideration of the oral and documentary evidence available on file, has fastened the liability on the Corporation and therefore, interference by this court is not called for. However, he fairly submitted that, the Tribunal has erred in not awarding reasonable compensation and therefore, the same may be considered in accordance with law, having regard to the nature of the injuries sustained by the claimant. 8. After consideration of the submissions made by the parties, the points that arises for our consideration are: (i) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? (ii) Whether the liability fastened on the Corporation is sustainable in law? Regarding Point No.1: 9. 8. After consideration of the submissions made by the parties, the points that arises for our consideration are: (i) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? (ii) Whether the liability fastened on the Corporation is sustainable in law? Regarding Point No.1: 9. The occurrence of the accident and the resultant injuries sustained by the claimant are not in dispute. It is the case of the claimant that he was aged about 29 years, working as Lecturer in HKBK College of Engineering, Bengaluru and drawing the salary of Rs.18,900/- per month. Out of Rs.18,900/- per month, if Income tax of Rs.600/- and Professional tax of Rs.200/- is deducted, his net income comes to Rs.18,100/- per month. It is the case of the claimant that, on account of the injuries, he has taken treatment as inpatient for more than 3½ months, undergone surgery. The Doctor has stated that, the left leg of the claimant was amputated below knee. The Tribunal ought to have considered the pain and agony suffered by him during the period of treatment as there was an amputation of leg. The claimant might have spend considerable amount towards medical expenses, conveyance, nourishing food and attendant charges during the period of treatment and on the advise of the Doctor he might have taken bed rest and follow up treatment for four months. On account of the injuries sustained by him, he has suffered permanent disability and Doctor has assessed the disability to the extent of 63% to the left lower limb, 6% to the right lower limb and at 21.6% to the whole body. Further, he stated that, artificial limb is fitted to the stump and it has to be replaced once in three or five years and he has to suffer this disability through out his life. These aspects of the matter has not been considered by the Tribunal while awarding compensation as rightly pointed out by the learned counsel for the claimant. Taking all these factors into consideration, we award a sum of Rs.1,50,000/-towards injury, pain and sufferings, Rs.50,000/-towards conveyance, nourishing food and attendant charges, Rs.72,400/- towards loss of income during the period of treatment for four months at the rate of Rs.18,100/-, Rs.1,00,000/-towards loss of amenities, Rs.1,00,000/- towards loss of expectation due to disability and Rs.1,50,000/-towards further medical expenses, including purchase of artificial limb. 10. 10. The Tribunal has awarded a sum of Rs.5,05,310/-towards medical expenses as per medical bills produced by the claimant, which is just and reasonable. Hence, interference by this Court is not called for. In all, the claimant is entitled to a total compensation of Rs.11,27,710/- instead of Rs.7,25,310/- and the break up is as follows: Thus, the claimant is entitled for an enhanced compensation of Rs.4,02,400/-with interest at 6% p.a., (excluding the interest on Rs.1,50,000/-awarded towards future medical expenses, including purchase of artificial limb) from the date of petition till the date of realization. 11. So far as the appeal filed by the Corporation is concerned, as rightly pointed out by the learned counsel for the Corporation, in view of the judgment of the Apex Court (stated supra), we are of the considered view that, the liability fastened on the Corporation by the Tribunal cannot be sustained and is liable to be set aside and accordingly, it is set aside holding that the respondent Nos.4 and 5 New India Insurance Company and Oriental Insurance Company are liable to satisfi the award in equal proportion. 12. Having regard to the facts and circumstances of the case, the appeal filed by the claimant and the appeal filed by the Corporation are disposed of. The impugned judgment and award dated 19th March 2010 passed by the Tribunal in MVC No.3965/2007 is hereby modified. The liability fastened on the Corporation is hereby set aside, fastening the liability on respondent Nos.4 and 5 in equal proportion and awarding the compensation of Rs.11,27,710/- instead of Rs.7,25,310/-. There would be an enhancement of compensation of Rs.4,02,400/-with interest at 6% p.a., (excluding interest on Rs.1,50,000/- awarded towards future medical expenses, including purchase of artificial limb) from the date of petition till its realization. The respondent Nos.4 and 5 are directed to deposit the compensation of Rs.11,27,710/-with interest at 8% p.a. on Rs.7,25,310/- and at 6% p.a. on Rs.4,02,400/- (excluding interest on Rs.1,50,000/- awarded towards future medical expenses, including purchase of artificial limb) in equal proportion, within three weeks from the date of receipt of a copy of this judgment and award. The apportionment and manner of disbursement awarded by the Tribunal stands undisturbed. The apportionment and manner of disbursement awarded by the Tribunal stands undisturbed. Out of the enhanced compensation of Rs.4,02,400/-with interest at 6% p.a., from the date of petition till its realization, 50% with proportionate interest shall be invested in the Fixed deposit in any Nationalized of Scheduled Bank, in the name of the claimant, for a period of five years, renewable by another ten years, with liberty to him to withdraw the interest accrued on it, periodically. The remaining 50% with proportionate interest shall be released in favour of the claimant, immediately, on deposit by the Insurers. The Registry is directed to refund the amount deposited by the Corporation in M.F.A.No.8801/2010 to the Corporation personally or through its authorized officer, forthwith. Draw the award, accordingly.