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2013 DIGILAW 193 (KAR)

Channabasavaiah R. v. Oriental Insurance Co. Ltd.

2013-02-15

N.K.PATIL, VEGI SURI APPA RAO

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JUDGMENT : N.K. Patil, J. This appeal by the claimant arises out of the impugned judgment and award dated 25.8.2009 passed in M.V.C. No. 81 of 2008 on the file of the Nineteenth Addl. SCJ & M.A.C.T., Bangalore (SCCH-7) (hereinafter referred to as 'the Tribunal' for short), for enhancement of compensation. By its judgment and award, the Tribunal has awarded a sum of Rs. 7,04,900 with interest at 6 per cent per annum, from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road accident. 2. It is case of the appellant that he was aged about 24 years as on the date of accident, hale and hearty prior to the accident and earning Rs. 8,500 per month by working as a sales executive. On 27.8.2007 at about 11.45 p.m., when he was going from Tumkur towards Mallasandra Village on his Bajaj Pulsar motorbike bearing registration No. KA 06-Y53 near Aralikatte, Kuntammana Thota, a Maruti Zen car bearing registration No. KA 18-M 1851 belonging to respondent No. 2 was driven by the respondent No. 3 in a rash and negligent manner and dashed against the motor cycle of the appellant. As a result, the appellant fell down and sustained the following injuries: (1) Comminuted fracture body of left mandible, fracture R mandible-ramus. (2) Fracture left maxilla involving medial, anterior and lateral wall of maxillary sinus floor of maxillary sinus. (3) Fracture left zygomatic arch. (4) Fracture lateral wall of left orbit. (5) Fracture left frontal bone. (6) Left eye fracture orbit with exophthalmia with post-traumatic cataract optic nerve intact with traumatic optic neuro palsy. (7) Minimal compression D3 fracture. On account of the injuries as referred above, sustained in the road accident, the appellant has undergone treatment as inpatient in the hospital for about 25 days and undergone one surgery. On the advice of the doctor, he has taken bed rest and follow-up treatment and required to undergo one more surgery. PW 2, doctor, has assessed disability to the extent of 50 per cent towards loss of left eye and 15 per cent towards disfiguration in face which resulted in 65 per cent disability to the whole body. It is further case of the appellant that he has spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges. PW 2, doctor, has assessed disability to the extent of 50 per cent towards loss of left eye and 15 per cent towards disfiguration in face which resulted in 65 per cent disability to the whole body. It is further case of the appellant that he has spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges. Due to the injuries sustained he lost his job and now he is not doing any work. Therefore, he filed a claim petition u/s 166 of Motor Vehicles Act before the Tribunal claiming compensation against the respondents. The said claim petition has come up for consideration before the Tribunal. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence has allowed the said claim petition in part and awarded a sum of Rs. 7,04,900 as compensation under different heads with interest at 6 per cent per annum, from the date of petition till its realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, appellant has presented this appeal, seeking enhancement of compensation. 3. The submission of learned counsel appearing for the appellant at the outset is that the Tribunal has erred in assessing the income of the appellant at only Rs. 4,500 per month which is on the lower side, since the appellant was working as a sales executive having bright future. The Tribunal ought to have assessed the reasonable income. Further, he submits, PW 2, doctor, has assessed 50 per cent disability for loss of left eye, 15 per cent for disfiguration in face and 65 per cent to the whole body, but the Tribunal has assessed 20 per cent towards whole body. Further, he submits, the appellant has suffered pain and agony during treatment period and taken bed rest and follow-up treatment as advised by the doctor and has to pull on the same throughout his life. Due to disability, the appellant has lost his job and also required to undergo one more surgery in future. Therefore, impugned judgment and award passed by the Claims Tribunal is liable to be modified awarding just and reasonable compensation. 4. As against this, the learned counsel appearing for the respondent No. 1-insurer, inter alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on record. 4. As against this, the learned counsel appearing for the respondent No. 1-insurer, inter alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on record. However, he fairly submits that the Tribunal has erred in not assessing reasonable income of the appellant since the accident is of the year 2007 and, therefore, by redetermining the income of the appellant, reasonable compensation towards injury, pain and suffering, loss of income during laid up period and loss of amenities, discomfort and unhappiness may be awarded in accordance with law. 5. After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is: Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 6. Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that appellant was aged about 24 years as on the date of accident, hale and hearty prior to the accident and working as sales executive. Having regard to the age, avocation and year of the accident, we can safely reassess the income of the appellant at Rs. 6,000 per month to meet the ends of justice. Further, after evaluation of the records it emerges that the appellant has undergone treatment as inpatient in the hospital for 25 days and PW 2, doctor, after clinical examination has erred in coming to the conclusion that there is 65 per cent disability to the whole body when it has assessed the functional disability at 65 per cent. Therefore, if 1/3rd of it is taken, the appellant has sustained disability at 21.66 per cent rounded off to 22 per cent. The appellant might have suffered pain and agony during treatment period and as advised by the doctor he has undergone follow-up treatment and it is presumed that he has taken bed rest at least for a period of 3 months and he is bound to pull on the same throughout his life. Further the appellant is required to undergo one more surgery in future as advised by the doctor and requires reasonable amount towards future medical expenses. Further the appellant is required to undergo one more surgery in future as advised by the doctor and requires reasonable amount towards future medical expenses. PW 3, employer of the appellant, has stated that the appellant was removed from their company due to the disability sustained in the accident. For the age of appellant, the proper multiplier applicable is 18' as per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 . Taking into consideration all these facts and circumstances of the case, we deem it fit to award Rs. 70,000 towards pain and suffering, Rs. 18,000 (Rs. 6,000 x 3 months) towards loss of income during laid up period, Rs. 30,000 towards loss of amenities and unhappiness, Rs. 2,85,120 (Rs. 6,000 x 12 x 22 per cent x 18') towards loss of future income due to disability and Rs. 25,000 for future medical expenses. However, the Tribunal has rightly awarded a sum of Rs. 4,40,500 towards medical expenses and Rs. 10,000 towards conveyance, nourishing food and attendant charges and, therefore, interference by this court is not called for. Having regard to the facts and circumstances of the case as stated above, the impugned judgment and award dated 25.8.2009 passed by the Claims Tribunal in M.V.C. No. 81 of 2008 is hereby modified. The total compensation payable comes to Rs. 8,78,620 with 6 per cent interest per annum as against Rs. 7,04,900 and the break-up is as follows: Towards pain and suffering Rs. 70,000 Towards medical expenses Rs. 4,40,500 Towards conveyance, nourishing food and attendant charges Rs. 10,000 Towards loss of amenities and happiness Rs. 30,000 Towards loss of income during the period of treatment Rs. 18,000 Towards loss of future income due to disability Rs. 2,85,120 Towards future medical expenses Rs. 25,000 Total Rs. 8,78,620 The enhanced compensation comes to Rs. 1,73,720. The respondent No. 1, insurer, is directed to deposit the enhanced compensation of Rs. 1,73,720 with interest at 6 per cent per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation, Rs. 1,73,720. The respondent No. 1, insurer, is directed to deposit the enhanced compensation of Rs. 1,73,720 with interest at 6 per cent per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation, Rs. 1,00,000 with proportionate interest shall be invested in the fixed deposit in any nationalised or scheduled bank in the name of the appellant for a period of ten years and renewable for another ten years, with liberty to him to withdraw the periodical interest accrued on it. The remaining Rs. 73,720 with proportionate interest shall be released in favour of the appellant immediately on deposit by the insurer. Draw the award accordingly.