R. Kodandarama v. Oriental Insurance Co. , Ltd. , by its Branch Manager
2013-10-23
B.S.INDRAKALA, N.K.PATIL
body2013
DigiLaw.ai
Judgment : N.K. Patil, J. This appeal by the claimant is directed against the impugned common judgment and award dated 13th August 2008, passed in MVC No.4879/2007, by the XIX Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore (SCCH-17), (for short, 'Tribunal' ) for enhancement of compensation on the ground that, the compensation of Rs.5,73,500/-, awarded in his favour as against his claim for Rs.40,00,000/-, is inadequate. 2. The appellant claims to be aged about 37 years and real estate businessman, earning a sum of Rs.1,00,000/- per month. He was hale and healthy prior to the date of accident. 3. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, contending that at about 2:00 P.M., on 13-05-2007, when he along with others was proceeding in a Scorpio bearing Registration No.KA-05/MC-9349, near Mandigehalla Bridge, NH- 206, Sagar Taluk, Shimoga Dist, he met with an accident, on account of rash and negligent driving by the driver of Lorry bearing Registration No.KA-17/8500 and due to the impact, he sustained grievous injuries such as communited fracture of right femur, fracture of left humerus shaft, fracture of left clavicle and fracture of right scapula. Immediately, he was shifted to the Sagar Apollo Hospital, where he was treated as in- patient from 14-05-2007 to 02-06-2007 and 29-06- 2007 to 02-07-2007. 4. 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 adequately. 5. 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.30.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 13th August, 2008. 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.5,73,500/-with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 6. We have heard learned counsel for appellant and learned counsel for first respondent/Insurance Company for considerable length of time. 7.
Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 6. We have heard learned counsel for appellant and learned counsel for first respondent/Insurance Company for considerable length of time. 7. It is the case of the appellant that on account of the road traffic accident, he sustained communited fracture of right femur, fracture of left humerus shaft, fracture of left clavicle and fracture of right scapula and for treatment of the said injuries, he took treatment as in patient at Sagar Apollo Hospital from 14-05-2007 to 02-06-2007 and 29-06-2007 to 02-07-2007 and therefore, he has to be awarded reasonable compensation. 8. The submission of the learned counsel appearing for appellant at the outset is that the Tribunal grossly erred in not assessing reasonable income of the appellant for the reason that he was aged about 37 years and doing real estate business. The accident is of the year 2007. Therefore, the Tribunal is not justified in assessing monthly income of the appellant at Rs.3,000/- and the same is liable to be re assessed. Further, he submitted that in spite of the clinching documentary evidence and also oral evidence of PW5, Doctor, assessing the whole body disability at 32%, the Tribunal has erroneously proceeded to re- assess the whole body disability at 30%, contrary to the oral and documentary evidence adduced by the appellant. He also submitted that the Tribunal further erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of income during treatment period, loss of amenities, discomfort and unhappiness, loss of future earnings, conveyance, nourishing food and attendant charges. Therefore, he submits that reasonable enhancement may be made by modifying the impugned judgment and award passed by Tribunal. 9. As against this, learned counsel appearing for Insurer vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has awarded just and reasonable compensation, having regard to the age, avocation, year of accident, nature of injuries sustained and the disability. Hence, interference in the same is not called for. 10. After hearing learned counsel for the appellant and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute.
Hence, interference in the same is not called for. 10. After hearing learned counsel for the appellant and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, 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 37 years and a businessman in real estate. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs.3,43,000/-towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for. 11. However, so far as the compensation awarded under injury, pain and sufferings, loss of amenities, discomfort and unhappiness, loss of income during treatment period, loss of future earnings and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Admittedly, in view of the road traffic accident, the appellant has sustained communited fracture of right femur, fracture of left humerus shaft, fracture of left clavicle and fracture of right scapula. PW5, the Casualty Medical Officer of Sagar Apollo Hospital, Bangalore, has stated in his evidence that he has examined the appellant on 14-05-2007 and his evidence reveals that the appellant has sustained lacerated wound over forehead, right eye brow, left angle of mouth, below lower lip, right wrist and fracture of right scapula, right 4th and 5th ribs anterially, left clavicle, left humerus shaft, right femur shaft, left radial nerve palsy present. Further he has deposed that he operated the appellant and inserted the implants and the appellant underwent another surgery for removal of implants. He has taken treatment at Sagar Apollo Hospital, as in-patient from 14-05-2007 to 02-06-2007 and 29-06-2007 to 02-07-2007. PW5, Doctor has assessed 32% disability in respect of whole body. But, the Tribunal has re-assessed the same to 30%. The same, in our opinion is on the lower side. Having regard to the age, avocation, nature of injuries, we accept the whole body disability at 32%, as assessed by Doctor, to meet the ends of justice. The appellant being aged about 37 years, has to endure this disability for the rest of his life.
The same, in our opinion is on the lower side. Having regard to the age, avocation, nature of injuries, we accept the whole body disability at 32%, as assessed by Doctor, to meet the ends of justice. The appellant being aged about 37 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from work for a period of not less than three months. Further, it is seen that the Tribunal has erred in assessing the monthly income of the appellant at only Rs.3,000/-. The same is on the lower side and needs to be re-assessed. Considering the age, avocation and the year of accident, we re-assess the monthly income of the appellant at Rs.4,500/-, to meet the ends of justice. Further, during the period of period, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 37 years at the time of accident, the proper multiplier applicable is 15' as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ), as rightly adopted by Tribunal. Therefore, having regard to the age, avocation, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of Rs.50,000/- towards injury, pain and suffering as against Rs.40,000/-; Rs.10,000/-towards conveyance, nourishing food and attendant charges as against Rs.7,500/-; Rs.13,500/-towards loss of income during treatment period, at the rate of Rs.4,500/-per month for a period of three months; Rs.25,000/- towards loss of amenities, discomfort and unhappiness as against Rs.10,000/- and Rs.5,000/- towards disfigurement; and Rs.2,59,200/- (i.e. Rs.4,500/- x 12 x 15' x 32/100) towards loss of future income as against Rs.1,62,000/- awarded by Tribunal. 12. 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 13th August 2008, passed in MVC No.4879/2007, by the XIX Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore (SCCH-17), is hereby modified, awarding a sum of Rs.7,00,700/- as against Rs.5,73,500/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization.
The impugned judgment and award dated 13th August 2008, passed in MVC No.4879/2007, by the XIX Additional Small Causes Judge, Motor Accident Claims Tribunal, Bangalore (SCCH-17), is hereby modified, awarding a sum of Rs.7,00,700/- as against Rs.5,73,500/- 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: “TABLE” The total compensation would workout to Rs.7,00,700/- as against Rs.5,73,500/-. The enhanced compensation would be Rs.1,27,200/- with 6% interest per annum. The first respondent/Insurance Company is directed to deposit the enhanced compensation of Rs.1,27,200/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment. On such deposit by the Insurance Company, 50% of it shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by another ten years, with liberty reserved to him to withdraw the periodical interest. Remaining 50% shall be released in favour of the appellant, immediately. Office to draw award, accordingly.