Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 861 (KAR)

Ilayaraja v. New India Assurance Co. , Ltd.

2013-07-30

B.MANOHAR, N.K.PATIL

body2013
Judgment : 1. This appeal by the claimant is directed against the impugned judgment and award dated 21st October 2010, passed in MVC No.7653/2009, by the VIII Additional Judge & Member, Motor Accident Claims Tribunal-V, Court of Small Causes, Bangalore City, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs.1,69,800/-, awarded in his favour as against his claim for Rs.20,00,000/-, is inadequate.) 2. The appellant claims to be aged about 21 years and a Mason by profession, earning a sum of` Rs.6,000/- per month. He was hale and healthy prior to the date of accident. That at about 10.00 P.M., on 25-10-2009, when the appellant was on the left side of the Benson Town road with his Motor Cycle bearing Registration No.KA-03/EE-1326, at that time, a Cantor Lorry bearing Registration No.KA-06/8107 came at a high speed, in a rash and negligent manner and dashed against him. Due to the impact, the appellant sustained grievous injuries. Immediately, he was shifted to Bowring Hospital and thereafter to Dr. Ambedkar Medical College Hospital. 3. 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 he sustained grievous injuries including fractures and was in-patient in two different hospitals and therefore, he has to be awarded reasonable compensation. 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.20.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 21st October, 2010. 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.1,69,800/- 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. 5. We have heard learned counsel for appellant and learned counsel for first respondent/Insurance Company for considerable length of time. 6. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. We have heard learned counsel for appellant and learned counsel for first respondent/Insurance Company for considerable length of time. 6. The submission of the learned counsel appearing for appellant, Shri. H.B. Somapur at the outset is that, the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of marriage prospects, loss of income during treatment period, loss of future income and further failed to award any compensation towards future medical expenses. To substantiate the said submission, he submitted that the Tribunal has assessed the income of the appellant at only Rs.3,000/- per month and the same is on the lower side for the reason that the appellant was aged about only 21 years, working as Mason and the accident is of the year 2009. Therefore, he submits that reasonable monthly income of the appellant many be reassessed. Further, he submitted that the appellant has undergone a surgery and also examined two Doctors and the Doctors have assessed the permanent disability at 20%/24%, the Same is liable to be re-assessed at least at 50%, as the appellant has sustained grievous injuries such as fracture of pelvic bone etc. and he is unable to carry weight and drive two wheeler and he finds difficulty to sleep on either side and welling and tenderness in pubic region. Further, he submitted that the Doctor has opined that the appellant has to undergo one more surgery and reasonable amount may be awarded towards future medical expenses also. Further, he vehemently submitted that, on account of the accidental injuries, the appellant has taken two years bed rest and follow-up treatment. Therefore, he submits that reasonable enhancement many be made by modifying the impugned judgment and award passed by Tribunal. 7. As against this, learned counsel appearing for first respondent/Insurer vehemently submitted that the Tribunal is justified in passing the impugned judgment and award awarding reasonable compensation for the injuries sustained by the appellant and interference in the same is not called for. However, after going through the evidence, he fairly submitted that reasonable compensation may be awarded towards future medical expenses and the impugned judgment and award may be modified in accordance with law. 8. However, after going through the evidence, he fairly submitted that reasonable compensation may be awarded towards future medical expenses and the impugned judgment and award may be modified in accordance with law. 8. After hearing learned counsel for the appellant, learned counsel appearing for Insurer and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, the 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 21 years and a Mason by profession. The Tribunal, After assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs.10,000/- towards medical expenses, as per the medical bills and prescriptions and Rs.20,000/- towards conveyance, nourishing food and attendant charges. Hence, interference in the same is uncalled for. 9. However, so far as the compensation awarded under injury, pain and sufferings, loss of amenities, loss of future earnings, loss of income during treatment period and loss of marriage prospects is concerned, the same is on the lower side and needs to be redetermined. Further, the Tribunal has failed to award any compensation towards future medical expenses. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries, such as fracture pelvic syphysis diastans, undisplaced unicortical fracture, fracture of lateral maleolus left ankle, lacerated wound with deformity right ankle, tenderness over back (L5 Spine area) and laceration over left dorsum of foot. The Doctor has assessed 20%/24% towards whole body. But, the Tribunal, disbelieving the oral evidence of the Doctor, has appellant and also his avocation, has re-assessed the whole body permanent disability at 10%. The same, in our opinion is not just and proper, for the reason that the appellant has sustained multiple fracture and also sustained pelvic injury and undergone one operation. Further, he has deposed that he is having pain in his pelvic and ankle joint and he is limping and is unable to carry weight and has let the evidence of PW2, Doctor, who has deposed that the appellant is having difficulty to ride two wheeler and difficulty to sleep on either side and welling and tenderness in public region and accordingly, assessed permanent whole body disability at 20%. The same, in our view, is just and proper and we accept the same as against 10% assessed by Tribunal. The appellant being aged about only 21 years has to endure this disability for the rest of his life and he cannot do his work as effectively as he was doing earlier. Because of the grievous injuries sustained and surgery undergone, he must have been away from work for a period of not less than six months. Further, it can be seen that the monthly income of Rs.3,000/- assessed by Tribunal is on the lower side and liable to be re-assessed, for the reason that the accident is of the year 2009 and the appellant was only 21 years of age at the time of accident and was a mason by profession. Therefore, having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at Rs.4,500/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite some time in two different Hospitals on account of grievous injuries sustained and also underwent a surgery. During this 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 food and attendant charges apart from incidental expenses. Since the appellant was aged about 21 years at the time 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 ). Therefore, having regard to the age, avocation, nature of injuries, nature and duration of treatment , 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.35,000/-; Rs.27,000/- towards loss of income during treatment period, at the rate of Rs.4,500/-per month for a period of six months as against Rs.15.000/-; Rs.30,000/- towards loss of amenities, discomfort and unhappiness as against Rs.20,000/-; Rs50,000/- towards loss of marriage prospects as against Rs.15,000/- and Rs.1,94,400/- (i.e. Rs.4,500/- x 12 x ‘18’ x 20/100) towards loss of future income as against Rs.64,000/- awarded by Tribunal. 10. 10. Regarding the submission of the learned counsel for appellant that the appellant took bed-rest and follow-up treatment for a period of two years, the same cannot be accepted for the reason that the appellant has not produced any credible documentary evidence of the Hospital where he took follow-up treatment or the Certificate issued by the Doctor, who advised such follow-up treatment, Therefore, the same cannot be accepted. 11. Further it can be seen that the Tribunal has grossly erred in not awarding any compensation towards future medical expenses. Admittedly, the appellant has under a surgery and the Doctor has deposed that he has to undergo one more surgery. For the said surgery, he may have to incur medical expenses apart from conveyance, nourishing food and attendant charges during the period of surgery. Therefore, we award a sum of Rs.20,000/- towards future medical expenses. Thus, the total compensation would work out to Rs.4,01,400/- as against Rs.1,69,800/- awarded by Tribunal. There would be enhancement of compensation by a sum of Rs.2,31,600/- with 6% interest per annum. 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 21st October 2010, passed in MVC No.7653/2009, by the VIII Additional Judge & Member, Motor Accident Claims Tribunal-V, Court of Small Causes, Bangalore City, is hereby modified, awarding a sum of Rs.4,01,400/- as against Rs.1,69,8000/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. There would be enhancement of compensation by Rs.2,31,600/-. The break-up is as follows: Towards Pain and sufferings Rs.50,000/- Towards Loss of amenities & enjoyment in life on account of disability Rs.30,000/- Towards Medical Expenses Rs.10,000/- Towards conveyance, nourishing food and attendant charges Rs. 20,000/- Towards Loss of earning during treatment period Rs.27,000/- Towards loss of future earnings Rs.1,94,400/- Towards future medical expenses Rs.20,000/- Towards loss of marriage Prospects Rs.50,000/- Total Rs.4,01,400/- The first respondent/Insurance Company is directed to deposit the enhanced compensation of Rs.2,31,600/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment. On such deposit by the Insurance Company, a sum of Rs.1,50,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by ten years, with liberty reserved to him to withdraw the periodical interest. Remaining sum, of Rs.81,600/- with proportionate interest shall be released in favour of the appellant, immediately. Office to draw award, accordingly.