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2013 DIGILAW 287 (KAR)

K. M. Halappa v. Somashekara

2013-03-01

N.K.PATIL, V.SURI APPA RAO

body2013
JUDGMENT N.K. Patil, J.—This is a claimant's appeal against the impugned judgment and award dated 13-3-2009 passed in MVC No. 40 of 2007 by the Civil Judge (Senior Division) and Additional CJM, Motor Accident Claims Tribunal, Arasikere (for short 'Tribunal'), for enhancement, on the ground that, Rs. 5,80,200/- awarded by the Tribunal against the claim of Rs. 40,00,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate. In brief, the facts of the case are: The appellant claims to be aged about 44 years at the time of the accident. He was hale and healthy prior to the accident and working as Chief Reporter in Eesanje Kannada evening daily paper. That at about 4.30 a.m., on 14-2-2006, while the appellant was going in a motorcycle bearing No. KA. 06. U. 6893 as a pillion rider and the said motorcycle was ridden by one Byresha from Belagumba to Tiptur and while going near Mylanahalli gate on NH 206 slowly and carefully on the left side of the road, at that time, the driver of the KSRTC bus bearing Reg. No. KA. 09. F. 2940 came from opposite direction in a high speed and dashed against the motorcycle, as a result, he sustained compound fracture and dislocation of right ankle and other grievous injuries over the right lower limb an left hand. Immediately he was taken to Government Hospital, Tiptur and then shifted to Panacea Hospital, Bangalore, where he took treatment as inpatient for 75 days, underwent 12 major operations and thereafter, on the advise of the Doctor he has taken bed rest and follow up treatment. 2. It is the further case of the appellant that he spent considerable amount towards medical and other expenses and on account of the injuries sustained by him as referred above, he has suffered permanent disability. The Doctor has assessed the disability at 45% to the right leg and at 15% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation against the respondents. 3. 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. 3. 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. 5,80,200/- as compensation under different heads with interest at 6% p.a., from the date of petition till its payment. 4. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation. 5. We have heard the learned Counsel appearing for appellant and learned Counsel for the Corporation. 6. Learned Counsel for the appellant, at the outset submitted that the Tribunal has erred in not awarding reasonable compensation towards injury pain and sufferings, conveyance and other incidental expenses, loss of income during treatment period, loss of amenities and towards loss of future earnings and therefore, it needs to be enhanced. To substantiate the said submission, he submitted that, on account of the injuries sustained by the appellant in the accident, he has taken treatment as inpatient for 75 days, underwent 12 surgeries and has suffered permanent disability and the Doctor has assessed the disability at 15% which is permanent in nature and it would affect his future earring capacity as now he is unemployed. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified. 7. Per contra, learned Counsel for 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 file and therefore, it does not call for interference. 8. After hearing the learned Counsel for the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is: Whether the compensation awarded by the Tribunal is just and proper? 9. The occurrence of the accident and the resultant injuries sustained by the appellant are not in dispute. Further, it emerges that, the Tribunal after assessing oral and documentary evidence, particularly, the medical bills produced by the appellant, has rightly awarded a sum of Rs. 2,50,000/- towards medical expenses and Rs. 25,000/- towards future medical expenses and therefore, it does not call for interference. 10. Further, it emerges that, the Tribunal after assessing oral and documentary evidence, particularly, the medical bills produced by the appellant, has rightly awarded a sum of Rs. 2,50,000/- towards medical expenses and Rs. 25,000/- towards future medical expenses and therefore, it does not call for interference. 10. However, the Tribunal has erred in not awarding reasonable compensation towards pain and sufferings, towards loss of income during treatment period, towards loss of amenities, towards conveyance, nourishing food and attendant charges and towards loss of future earnings due to disability and therefore, it needs to be awarded. Admittedly, it is not in dispute that, on account of the injuries sustained by the appellant as referred above, he has taken treatment as inpatient for 75 days, undergone 12 surgeries, and on the advice of the Doctor he might have taken bed rest and follow up treatment at least for one year and during the said period he might have undergone pain and agony, he might have spent considerable amount towards conveyance, nourishing food and attendant charges and he might have incurred financial loss as he could not have attended to his work regularly. Further, in view of the injuries sustained by the appellant, he has suffered permanent disability. The Doctor has deposed that, appellant has suffered disability at 45% to the right leg and at 15% to the whole body and it is permanent in nature, he has to suffer this disability through out his life and it would affect his happiness, comforts and amenities in future life and also affects his future earning capacity and it has to be compensated reasonably. 11. Further it emerges that, the Tribunal has assessed the age of the appellant at 50 years as on the date of accident based on Ex. P. 6. But it is the case of the appellant that he is aged about 44 years. Therefore, we reassess his age between 46 to 50 years. It is the case of the appellant that he is working in Eesanje Kannada evening daily newspaper as Chief Reporter and drawing the salary of Rs. 20,000/- per month. But the Tribunal has assessed the income at Rs. 7,000/- per month which is on lower side. Having regard to the age, occupation and the year of accident, we reassess his income at Rs. 10,000/- per month to meet the ends of justice. 20,000/- per month. But the Tribunal has assessed the income at Rs. 7,000/- per month which is on lower side. Having regard to the age, occupation and the year of accident, we reassess his income at Rs. 10,000/- per month to meet the ends of justice. The appropriate multiplier applicable is 13' in view of the law laid down by the Apex Court in AIR 2009 SC 3104 instead of 12' adopted by the Tribunal. Taking all these aspects into consideration, we award a sum of Rs. 50,000/- towards pain and sufferings; Rs. 25,000/- towards conveyance, nourishing food and attendant charges, Rs. 1,20,000/- towards loss of income during treatment period for one year at the rate of Rs. 10,000/- per month, Rs. 30,000/- towards loss of amenities, discomforts and unhappiness due to disability and Rs. 2,34,000/- (10,000/- x 12 x 13 x 15/100) towards loss of future earnings. In all, the appellant is entitled to the total compensation of Rs. 7,34,000/- instead of Rs. 5,80,200/- and the break-up is as follows: Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 13-3-2009 passed in MVC No. 40 of 2007 by the Civil Judge (Senior Division) and Additional CJM, Motor Accident Claims Tribunal, Arasikere, stands modified, awarding the compensation of Rs. 7,34,000/- instead of Rs. 5,80,200/-. There would be an enhancement of Rs. 1,53,800/- with interest at 6% p.a. (excluding interest for 214 days of delay in filing the appeal) from the date of petition till its realisation. The Corporation is directed to deposit the enhanced compensation of Rs. 1,53,800/- with interest at 6% p.a. (excluding interest for 214 days of delay in filing the appeal) from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award. Immediately on deposit by the Corporation, out of the enhanced compensation of Rs. 1,53,800/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in the name of the appellant in any Nationalised or Scheduled Bank, for a period of ten years and renewable by another five years, with liberty reserved to him to withdraw the interest accrued on it, periodically. The remaining sum of Rs. 53,800/- with proportionate interest shall be released in favour of appellant immediately. The remaining sum of Rs. 53,800/- with proportionate interest shall be released in favour of appellant immediately. Draw the award, accordingly.