Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 819 (KAR)

B. C. Byraiah @ Byrappa v. Nareshkumar

2013-07-19

N.K.PATIL

body2013
JUDGMENT 1. This appeal by the claimant is directed against the judgment and award dated 17th September 2008, passed in MVC No.6417/2007, by the 14th Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal Bangalore City (SCCH-10), ( for short, 'Tribunal' ) for enhancement of compensation on the ground that, the compensation of Rs.77,650/-with interest @ 8% p.a. awarded in favour of the claimant as against his claim for Rs.3,00,000/-, is inadequate. 2. The appellant claims to be aged about 53 years and working as Head Constable, earning a sum of Rs.15,338/-per month and was hale and healthy prior to the date of accident. That the occurrence of accident at about 7:45 P.M, on 29-06-2007, near Peenya Traffic Police Station, Bangalore, on account of rash and negligent driving by the driver of the Motor cycle bearing Registration No.KA-02/EX-4833 is not in dispute. It is also not in dispute that the appellant has sustained swelling and pain over right knee and superficial abrasion over both legs as As per X-ray of right knee, there is undisplaced fracture of right side lateral condyle tibia and the Doctor, on examination found that the claimant complained of pain, swelling over right knee, difficulty in climbing stairs, walking for long time, difficulty in squatting/sitting cross legged, sapping and cracking sensation over right knee and ultimately, he found that there is swelling and tenderness, crepitus present over right knee, flexion limited to 90 degree, wasting of right leg present, X-ray shows OA changes and malunited fracture. Due to the injuries sustained in the accident, he was shifted to Hospital, where he took treatment, by spending huge sums. 3. It is his further case that, on account of the accident, he sustained injuries stated above and for the treatment of the said injuries, 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.3,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 17th September, 2008. 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.3,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 17th September, 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.77,650/- under different heads, with interest at 8% 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. Learned counsel appearing for appellant vehemently submitted that the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings and other heads and therefore, it requires enhancement. To substantiate the said submission, he has taken through the Wound Certificate and submitted that the appellant has sustained the injuries as stated in the Wound Certificate and for the said treatment, he has spent huge sums and was also in-patient for a period of four days in the Hospital and also sustained 14% disability to the whole body. Therefore, the Tribunal ought to have taken into consideration the pain and agony suffered by the appellant during the treatment period, the loss of amenities, discomfort and unhappiness and also the fact that he would not be in a position to perform his duties as effectively as he was doing earlier, on account of the disability. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified by enhancing the compensation reasonably. 7. As against this, learned counsel appearing for Insurer sought to justify the impugned judgment and award, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and hence, interference in the same is not called for. 8. 7. As against this, learned counsel appearing for Insurer sought to justify the impugned judgment and award, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and hence, interference in the same is not called for. 8. After hearing the learned counsel appearing for the appellant and the Insurer and after going through the impugned judgment and award passed by Tribunal, I am of the view that, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of Rs.10,000/- towards conveyance, nourishing food and attendant charges and Rs.14,650/- towards medical expenses. Hence it does not call for interference. However, sofaras other heads are concerned, the Tribunal erred in not awarding reasonable compensation and therefore, it requires enhancement. 9. After perusal of the impugned judgment and award passed by Tribunal, it can be seen that the appellant has sustained swelling and pain over right knee and superficial abrasion over both legs as As per X-ray of right knee, there is undisplaced fracture of right side lateral condyle tibia and the Doctor, on examination found that the claimant complained of pain, swelling over right knee, difficulty in climbing stairs, walking for long time, difficulty in squatting/sitting cross legged, sapping and cracking sensation over right knee and ultimately, he found that there is swelling and tenderness, crepitus present over right knee, flexion limited to 90 degree, wasting of right leg present, X-ray shows OA changes and malunited fracture. PW2, Doctor has assessed partial physical disability to the extent of 40% in relation to right lower limb and 14% towards whole body. He has been cross examined by the Insurer but nothing worthwhile has been elicited from the said evidence to disbelieve or to discard the said evidence. The said 14% disability would definitely come in the way of his discharge of day to day activities as also his official duty as head constable. But, the compensation awarded by Tribunal towards loss of amenities, discomfort and unhappiness is on the lower side. The appellant, being aged about 53 years, has to endure this disability for the rest of his life. Having regard to the nature of injuries sustained and also disability, it must be noticed that, the appellant must have undergone lot of unsaid pain and agony. The appellant, being aged about 53 years, has to endure this disability for the rest of his life. Having regard to the nature of injuries sustained and also disability, it must be noticed that, the appellant must have undergone lot of unsaid pain and agony. Therefore, having regard to the nature of injuries sustained, age, avocation and the nature and duration of treatment including disability, I award a sum of Rs.50,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs.20,000/-awarded towards disability and Rs.10,000/- towards loss of expectancy of life; and Rs.30,000/- towards pain and sufferings as against Rs.23,000/-awarded by Tribunal. Thus, the appellant in all, would be entitled to compensation of Rs.1,04,650/-, with interest at 8% per annum, as against Rs.77,650/-awarded by Tribunal, and the break up is as follows: Towards Pain and sufferings Rs. 30,000/-Towards medical expenses Rs. 14,650/-Towards conveyance, nourishing food and Rs. 10,000/- attendant charges Towards loss of amenities, discomfort and Rs. 50,000/- unhappiness Total Rs.1,04,650/- 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 17th September 2008, passed in MVC No.6417/2007, by the 14th Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal Bangalore City (SCCH-10), is hereby modified, awarding compensation of a sum of Rs.1,04,650/-, with interest at 8% per annum, as against Rs.77,650/-, awarded by Tribunal. There would be an enhancement of compensation of Rs.27,000/- with 8% interest per annum. The second respondent - Insurer is directed to deposit the enhanced compensation, with interest thereon at 8% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment. On such deposit by the Insurer, the entire sum shall be released in favour of the appellant, immediately. Office to draw award, accordingly.