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2018 DIGILAW 18 (KAR)

Basavaraju G. R. S/o Late Rangaiah v. New India Assurance Co. Ltd.

2018-01-03

RATHNAKALA

body2018
ORDER : 1. Heard Sri Prabhuswamy N. learned counsel appearing for appellant. No representation for the respondents. The matter is taken up for final disposal. 2. The appellant herein is aggrieved by the judgment and award dated 27.12.2013 in MVC No. 82/2013 passed by the Principal Senior Civil Judge and MACT-X, Tumkur, (for brevity “Tribunal”). By the impugned judgment and award the Tribunal has allowed his claim petition in part filed under Section 166 of the M.V. Act and awarded a total compensation of Rs. 17,68,000/-. The appellant is dissatisfied by the quantum of compensation amount awarded. 3. Briefly stated, the appellant (hereinafter referred to as ‘claimant’) filed the claim petition before the Tribunal under Section 166 of the M.V. Act contending that he suffered grievous injuries in a vehicular accident dated 25.10.2012 involving a bus bearing No. KA-05-AC-1444 belonging to respondent No. 1, insured with 2nd respondent/Insurance Company. It was his case that he suffered comminuted fracture of distal tibia and fibula with bone loss besides degloving injury to the right lower limb. He underwent surgery and the left leg above the knee and right leg below the knee were amputated. The claim was contested by the insurer 2nd respondent. The Tribunal, on over all consideration of the evidentiary material allowed the appeal in part and computed the compensation as under:- (A) Towards pain and agony for amputation of both the legs Rs. 80,000/- (B) Towards medical expenses which includes Attendant charges, food and nourishment Rs. 7,00,000/- (C) For purchase of two units of prosthesis Rs. 3,40,000/- (D) Loss of income during the course of Treatment and bed rest i.e. @ Rs. 5000/- x 3 months Rs. 15,000/- (E) Loss of future income due to disablement (Rs. 5000/- x 12 x 11 x 80%) Rs. 5,28,000/- (F) Towards conveyance charges Rs. 1,05,000/- TOTAL Rs. 17,68,000/- 4. Sri Prabhuswamy N. learned counsel for the appellant submits that the appellant was working as a mechanic in M/s Ganesh Motors and earning Rs. 8500/- p.m. Merely for the reason that he did not furnish the documentary proof of his avocation, the Tribunal computed the compensation by taking his income at Rs. 5,000/- p.m. which is substantially on the lower side. The accident occurred on 25.10.2012, as a result of which he sustained crush injuries to both his legs with degloving and both legs were amputated. 5,000/- p.m. which is substantially on the lower side. The accident occurred on 25.10.2012, as a result of which he sustained crush injuries to both his legs with degloving and both legs were amputated. He was hospitalized from 25.10.2012 to 14.12.2012 and underwent surgeries thrice on various dates. That apart, for having lost both legs, claimant is completely disabled to do any work to eak out his livelihood. The Tribunal has awarded only Rs. 80,000/- towards pain and suffering, which is inadequate. Further the Tribunal has unmindfully assessed the future loss of income by assuming the physical disability at 80% which is also one of the factor for further reduction in the compensation amount. Hence, the impugned judgment and award may be modified by enhancing the compensation by a just and reasonable amount. 5. In the light of the above submissions, I have perused the records, so also the impugned judgment and award and the evidence put forth by the claimant before the Tribunal. There is no dispute with regard to the factual aspect of the matter that during the vehicular accident that occurred on 25.10.2012 involving the bus bearing No. KA-05-AC-1444 belonging to the 2nd respondent insured with the first respondent, the claimant has lost both legs. There is no dispute about his avocation that he is a skilled labourer/mechanic under the employer in M/s Ganesh Motors. Considering the date of the accident and also the age of the claimant at the time of the accident. During enquiry before the Tribunal the claimant had examined his employer as PW-3 before the Tribunal, who testified to the fact that he was paying a salary of Rs. 8500/- p.m. to the claimant, which is marked as Ex.P.12. The claimant has also produced RTC extract Ex.P.11 to demonstrate that he was also an agriculturist. The Tribunal disbelieved the version of PW3 about the income of the claimant and computed the compensation by taking his income notionally at Rs. 5000/- p.m. Considering the fact that the accident is of the year 2012, even in the absence of cogent documentary material, it can be safely assumed that a skilled mechanic like the claimant would have earned Rs. 7500/- p.m. The doctor, who treated the claimant, had stated that the claimant had suffered 100% disability to the whole body. But the Tribunal assessed the disability at 80%. 7500/- p.m. The doctor, who treated the claimant, had stated that the claimant had suffered 100% disability to the whole body. But the Tribunal assessed the disability at 80%. In view of amputation of both legs, virtually the appellant is disabled from performing either agricultural operations or mechanic work. In that view of the matter, it is in the interest of justice to infer the percentage of functional disability at 90%. 6. The amount awarded by the Tribunal on the actual medical expenses etc. Rs. 7,00,000/- and Rs. 3,40,000/- awarded towards purchase of two units of Prosthesis, Rs. 1,05,000/- awarded towards conveyance charges and Rs. 80,000/- awarded towards pain and agony, do not warrant interference. It is to be noted that for having lost both legs, the claimant/appellant is deprived of pleasure through out his life and he has to endure with inconvenience for the rest of his life. The Tribunal has lost sight this aspect of the matter, hence it is in the interest of justice to award Rs. 3,00,000/- towards loss of amenities and future happiness. The claimant was aged about 51 years and the suitable multiplier to calculate the loss of future income is ‘11’ as per the judgment of the Apex Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . Thus the loss of income by taking the permanent disability at 90% works out to Rs. 8,91,000/- (Rs. 7500 x 11 x 12 x 90%) as against Rs. 5,28,000/- awarded by the Tribunal. 7. The claimant/appellant is entitled to Rs. 22,500/- (Rs. 7500 x 3) towards loss of income during the course of treatment i.e. for three months as against Rs. 15,000/- awarded by the Tribunal. Thus the claimant-appellant is entitled for an enhanced compensation of Rs. 6,70,500/-. 8. Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified by enhancing the compensation by another sum of Rs. 6,70,500/- with interest at 6% p.a. from the date of the petition till the date of payment. 9. Registry is directed to transmit the LCR forthwith. The respondent Insurance Company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within three weeks from the date of receipt of a certified copy of this order. 10. 6,70,500/- with interest at 6% p.a. from the date of the petition till the date of payment. 9. Registry is directed to transmit the LCR forthwith. The respondent Insurance Company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within three weeks from the date of receipt of a certified copy of this order. 10. After the deposit, 50% of the enhanced compensation shall be disbursed in favour of the appellant and 50% shall be kept in Fixed deposit for a period of 10 years, renewable by another 5 years.