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2011 DIGILAW 533 (KAR)

Abdul Saleemuddin Bangalore Rural District v. Vasanth Kumar, Bangalore

2011-05-27

N.K.PATIL

body2011
Judgment :- 1. This appeal by the claimant is directed against the impugned judgment and award dated 1st December 2007, passed in M.V.C.No.7584/2006, by the XIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal, Metropolitan Area, Bangalore, (SCCH-15), (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs.4,07,700/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs.15.00 Lakhs, is inadequate. 2. The appellant claims to be aged about 21 years, working as mechanic, earning monthly income of a sum of Rs.9,000/- and hale and healthy prior to the date of accident. That the accident occurred at about 3:30 P.M, on 18-11-2006, when the appellant was going in his bike along with his friend. At that time, a Lorry bearing No.KA-02/C-5547 came at a high speed in a rash and negligent manner and dashed against the bike and as a result of the same, the appellant fell down and sustained grievous injuries. Immediately he was shifted to Magadi Hospital and then to Victoria Hospital and thereafter shifted to Mysore road Hi-Tech Hospital and also to Mallige Nursing Home, where he took treatment as in-patient and outpatient. 3. It is the case of the appellant that, on account of the accident, he sustained comminuted fracture of the left iliac crust and the right acetabulum comminuted fracture mid shaft of left humerus with antero medical displacement of the distal fragments, haematoma in both the scrotal skin probably secondary to posterior urethral injury, pelvic fracture with ruptured urethra in RTA. On account of the said injuries, 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.15.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 1st December, 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.4,07,700/- 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.4,07,700/- 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 second respondent – Insurer. 6. After perusal of the impugned judgment and award passed by Tribunal and after hearing the learned counsel for Insurer, I am of the view that, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of Rs.54,300/- towards medical expenses, Rs.70,000/- towards injury, pain and sufferings and Rs.25,000/- towards loss of amenities on account of disability. Therefore, interference in the same is uncalled for. 7. However, the Tribunal has erred in not awarding reasonable compensation towards loss of income during treatment, loss of future income, loss of marriage prospects, conveyance, nourishing food and attendant charges, loss of marriage prospects and towards future medical expenses. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for more than fifty days. PW2Orthopaedic surgeon has deposed about the fractures mentioned above, line of treatment and consequent to disability caused to the appellant. Further, on examination, the Orthopaedic Surgeon has noticed pain in upper limb and facing difficulty in passing urine and loss of sexual function, deformity of pelvis and restriction of joint movements of right hip while assessing disability. The fracture of pelvic and acetabulum is mal union and fracture of humerus is non-union. The Doctor has assessed the functional disability of both lower limbs at 75% and whole body disability at 40%. In view of the same, the appellant is not able to do his work properly and effective and that he being only 21 years, has to endure this disability for the rest of his life. But the Tribunal has disbelieved the evidence of the doctor and has re-assessed the whole body disability at 30%. In view of the same, the appellant is not able to do his work properly and effective and that he being only 21 years, has to endure this disability for the rest of his life. But the Tribunal has disbelieved the evidence of the doctor and has re-assessed the whole body disability at 30%. Having regard to the nature and seriousness of injuries sustained, I re-assess the whole body disability at 40%, as rightly assessed by the Doctor. Further, the Tribunal erred in assessing the monthly income of the appellant at only Rs.3,000/-. The same is inadequate and needs to be re-assessed. The appellant was aged about 21 years, working as Mechanic. Having regard to the nature of work and age of the appellant, coupled with the year of accident being 2006, I deem it fit and appropriate to re-assess the monthly income of the appellant at Rs.4,500/-. Since the appellant was aged about 21 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 ). Having regard to all the above aspects, I deem it fit to award a sum of Rs.36,000/- towards loss of income during treatment period at the rate of Rs.4,500/- per month for a period of eight months, presuming that he would have taken follow-up treatment and bed-rest on the advice of Doctor for eight months, as against Rs.24,000/-; Rs.15,000/- towards conveyance, nourishing food and attendant charges as against Rs.5,000/-; and Rs.3,88,800/- (i.e. Rs.4,500/- x 12 x ‘18’ 40/100), towards loss of future income as against Rs.1,94,400/- awarded by Tribunal. 8. Further, it can be seen that the Tribunal has awarded only Rs.20,000/- towards loss of marriage prospects. The said sum is inadequate and needs to be enhanced. The appellant was aged about 21 years and sustained severe injuries to vital organs of the body and urethral injuries and has completely lost the sexual life. Therefore, having regard to all these aspects, I deem it fit to award a sum of Rs.50,000/- as against Rs.20,000/- awarded by Tribunal. 9. Further, it can be seen that the Tribunal has awarded only a sum of Rs.15,000/-towards future medical expenses. On account of the serious injuries sustained to the vital organs, the appellant has undergone several surgeries and has to still undergo future surgeries. 9. Further, it can be seen that the Tribunal has awarded only a sum of Rs.15,000/-towards future medical expenses. On account of the serious injuries sustained to the vital organs, the appellant has undergone several surgeries and has to still undergo future surgeries. Further, the Urologist has opined that the appellant has to change the urinary pipe and requires one more surgery. Therefore, I deem it fit to award a sum of Rs.20,000/- towards future medical expenses as against Rs.15,000/- awarded by Tribunal. Thus, the appellant, in all, would be entitled to a total compensation of Rs.6,59,100/-with interest at 6% per annum and the break up is as follows: 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 1st December 2007, passed in M.V.C.No.7584/2006, by the XIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal, Metropolitan Area, Bangalore, (SCCH-15), is hereby modified, awarding compensation of a sum of Rs.6,59,100/-, with interest at 6% per annum, as against Rs.4,07,700/-, awarded by Tribunal. There would be an enhancement of compensation of Rs.2,51,400/- with 6% interest per annum. The second respondent - Insurer is directed to deposit the enhanced compensation of Rs.2,51,400/-, 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, 60% of it shall be deposited in Fixed Deposit the name of the appellant, in any Nationalized/Scheduled Bank, for a period of five years, renewable for another five years, with liberty reserved to him to withdraw the periodical interest. Remaining 40% of the deposited amount shall be released in favour of the appellant, immediately. Office to draw award, accordingly.