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2011 DIGILAW 477 (KAR)

G. Somashekara v. M. G. Mahanthappa

2011-04-21

N.K.PATIL

body2011
Judgment :- This appeal by the claimant is directed against the impugned common judgment and award dated 23rd August 2007, passed in M.V.C.No.6924/2006, by the IV Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore City, SCCH-6, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs.3,38,416/- (but wrongly mentioned as Rs.3,38,466/-) with interest @ 6% p.a. awarded in favour of the claimant as against his clam for Rs.05.00 Lakhs, is adequate. 2. The appellant claims to be aged about 20 years, working as vegetable vendor, earning substantial amount and hale and healthy prior to the date of accident. That the accident occurred at about 7.30 A.M., on 10-06-2006, when the appellant was traveling in the private bus bearing No.KA-02/B/6400 proceeding on Magadi-Bangalore main Road. When the bus came near Shanuboganahalli, Magadi Taluk, at that time, the driver of the said bus drove the same with high speed, reckless, rash and negligent manner, without observing traffic rules and regulations on the right side of the road and dashed against the mud rock and caused accident. Due to the impact, the bus turtled and the inmates of the bus sustained grievous injuries. Immediately they were shifted to Sri. Rama Hospital, Bangalore, where they were treated as in-patient. 3. It is the case of the appellant that on account of the accident, he sustained compound comminuted fracture left femur, exposing bone and deep tissue. The vascutarity in left leg was feeble and doubtful of survival. No distal movements in joints seen and an abrasion right frontal region and that he has spent reasonable 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.05.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 23rd August, 2007. 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.3,38,416/-under different heads, with interest at 6% per annum from the date of petition till the date of realization. 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.3,38,416/-under different heads, 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. I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant and the Insurer. 6. The principal submission canvassed by the learned counsel appearing for the appellant, Sri. Harish Babu, at the outset is that, the Tribunal has erred in assessing the disability at 35% when in fact, the appellant has lost his leg above knee and the Doctor has assessed the permanent physical disability at 70%. Admittedly there is amputation of left leg above knee. The Tribunal is not justified in assessing the permanent physical disability at 35%, without assigning any valid reasons and further the Tribunal has erred in not awarding reasonable compensation towards pain and sufferings, loss of amenities, loss of income during treatment and loss of future income. Therefore, the impugned judgment and award is liable to be modified accordingly. 7. As against this, learned counsel appearing for respondent Insurer, inter alia, sought to justify the impugned judgment and award passed by Tribunal. However, he fairly submitted that since there is amputation of left leg above knee, this Court may reassess reasonable percentage of permanent disability and award just reasonable compensation to the injured claimant. 8. After perusal of the impugned judgment and award passed by Tribunal and after hearing the learned counsel for both parties, I am of the view that, the Tribunal, after assessing the oral and documentary evidence available on file, as rightly awarded compensation of Rs.48,616/- towards medical expenses and Rs.10,000/- towards conveyance, nourishing food and attendant charges. Therefore, interference in the same is uncalled for. 9. However, the Tribunal has erred in not awarding reasonable compensation towards loss of amenities, discomfort and unhappiness, loss of income during treatment, loss of future income and pain and sufferings. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for more than one month. Therefore, interference in the same is uncalled for. 9. However, the Tribunal has erred in not awarding reasonable compensation towards loss of amenities, discomfort and unhappiness, loss of income during treatment, loss of future income and pain and sufferings. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for more than one month. PW5Doctor has deposed that the appellant has sustained 70% permanent physical disability for the whole body and that on account of the disability, he is not able to do his work as effectively as he was doing earlier and he has to endure this disability for the rest of his life and will be a dependent on others for his mobility during the remaining part of his life. However, the monthly income of Rs.3,000/- assessed by Tribunal is just and reasonable and I accept the same. Since the appellant was aged about 20 years, as on the date of accident, the proper multiplier applicable is ‘18’ as per the decision of the Hon’ble Apex Court in Sarla Verma’s case ( 2009 ACJ 1298 ). Accordingly, having regard to the nature of injuries sustained coupled with his permanent physical disability, I re-assess the whole body permanent physical disability at 50% and having regard to all other aspects such as age, avocation and the year of accident, I deem it fit to award a sum of Rs.12,000/- towards loss of income during treatment period at the rate of Rs.3,000/- per month for a period of four months, presuming that he would have taken follow-up treatment and bed-rest on the advice of Doctor for four months, as against Rs.3,000/-; Rs.1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs.25,000/-; Rs.50,000/- towards pain and sufferings as against Rs.25,000/-; and Rs.3,24,000/- (i.e. Rs.3,000/- x 12 x ‘18’ x 50/100), towards loss of future income as against Rs.2,26,800/- awarded by Tribunal. Thus, the appellant would be entitled to a total compensation of Rs.5,44,616/- with interest at 6% per annum and the break up is as follows: Towards Pain and sufferings Rs.50,000/- Towards Loss of amenities & enjoyment in life Rs.1,00,000/- Towards Medical Expenses Rs.48,616/- Towards conveyance, nourishing food and attendant charges Rs.10,000/- Towards loss of future earnings Rs.3,24,000/- Towards loss of income during treatment period Rs.12,000/- Total Rs.5,44,616/- 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 common judgment and award dated 23rd August 2007, passed in M.V.C.No.6924/2006, by the IV Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore City, SCCH-6, is hereby modified, awarding compensation of a sum of Rs.5,44,616/-, with interest at 6% per annum, as against Rs.3,38,416/-, awarded by Tribunal. There would be an enhancement of compensation of Rs.2,06,200/- with 6% interest per annum. The second respondent – Insurer is directed to deposit the enhanced compensation of Rs.2,06,200/- with interest thereon at 6% per annum, from the date of petition till the date of realization, within four weeks from the date of receipt of copy of the judgment and award. On such deposit by the Insurer, 80% of it shall be deposited in Fixed Deposit the name of the appellant, in any Nationalised/Scheduled Bank, for a period of five years, renewable for another five years, with liberty reserved to him to withdraw the periodical interest. Remaining 20% of the deposited amount shall be released in favour of the appellant, immediately. Office to draw award, accordingly.