Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 284 (KAR)

H. S. Prakash S/o Late Shivappa v. Towsheer Ahamed S/o Abdul Sattar Sab

2018-02-27

H.B.PRABHAKARA SASTRY

body2018
JUDGMENT : 1. This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the Senior Civil Judge and XIV Motor Accidents Claims Tribunal, Tiptur (hereinafter referred to as ‘The Tribunal’ for short), by its judgment and award dated 03.03.2012 in MVC No. 753/2006. 2. The appellant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal. It is further contended that the Tribunal has not awarded compensation towards loss of amenities and loss of future income suffered by the appellant due to the injuries sustained by him. 3. Heard the arguments from both sides and perused the materials placed before this court. 4. Learned counsel for the appellant in his argument reiterated the contention taken up by the appellant in his memorandum of appeal. 5. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondents to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal. 6. After analyzing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:- Towards pain and agony Rs. 30,000.00 Towards medical expenses Rs. 43,000.00 Towards nourishment Rs. 2,000.00 TOTAL Rs. 75,000.00 7. Learned counsel for the appellant contended that even though the appellant has established that he has sustained the disability, the Tribunal has not considered the same. 8. On the other hand, learned counsel for the respondent-Insurance Company in his argument submitted that the quantum of compensation awarded by the Tribunal is reasonable, as such, it does not warrant any interference at the hands of this Court. 9. 8. On the other hand, learned counsel for the respondent-Insurance Company in his argument submitted that the quantum of compensation awarded by the Tribunal is reasonable, as such, it does not warrant any interference at the hands of this Court. 9. The evidence of PW-1 as the complainant when read in the light of the wound certificate at Ex.P5 and discharge summary at Ex.P6 would go to show that in the accident, the appellant/claimant has sustained the following injuries: 1. Punctured wound 2 x 2 over right shoulder. 2. 15 cm x 15 cm lacerated wound present distal ½ of right thigh extending to right knee joint. 3. Abrasion in left knee and right hand dorsum. 4. Diffuse swelling over right shoulder, tenderness. 5. Right knee tenderness crepitation of movement restricted. 6. Fracture of right humerus bone proximal 1/3rd and compound fracture of middle 1/3rd of right femur. 10. The discharge summary at Ex.P6 would further go to show that the right leg of the claimant was amputated above the knee. The nature of injuries sustained by the claimant and also the amputation of the right leg has not been denied or disputed by the learned counsel for the respondents. 11. On the other hand, by suggesting to PW-1 in his cross-examination that amputation was done due to the injured suffering with gangrene, the respondents have admitted that the injured/claimant has underwent an amputation/surgery. However, the Tribunal has not considered the fact that the claimant has undergone amputation to right leg above the knee. Thus, after taking into consideration the amputation of the right knee, the compensation awarded against pain and agony requires to be enhanced by Rs. 20,000/- to bring it to a reasonable quantum. 12. It is only after considering of the medical prescription and bills produced by the claimant at Exs.P5 and P7, the Tribunal has arrived at a quantum of Rs. 43,000/- towards medical expenses. Since, the said compensation is based on the actual, the same does not warrant any interference at the hands of this Court. 13. Considering the period of stay of the claimant in the hospital as an inpatient and the discharge summary, wherein the doctor has advised the diet, the quantum of compensation awarded towards ‘nourishment’ deserves to be enhanced by a sum of Rs. 5,000/-. 14. 13. Considering the period of stay of the claimant in the hospital as an inpatient and the discharge summary, wherein the doctor has advised the diet, the quantum of compensation awarded towards ‘nourishment’ deserves to be enhanced by a sum of Rs. 5,000/-. 14. In view of the fact that the claimant has sustained grievous injuries and also underwent amputation of his right leg above the knee, the Tribunal has lost the sight of considering loss of amenities and not awarded a suitable compensation to the claimant. Thus, in the light of deprival of amenities to the claimant due to amputation on his right leg, he deserves compensation under the head of loss of amenities at a sum of Rs. 20,000/-. 15. The claimant as PW-1 has stated in his evidence that prior to accident he was doing milk vending business and agricultural work and was earning Rs. 6,000/-. However, due to the injures sustained by him in the accident he could not be able to pursue his avocation as he was doing earlier. Thus, he has stated about his alleged disability to continue his avocation. No doubt, in the instant case, the claimant was not examined by any doctor in support of his alleged disability in order to prove the disability certificate, however, considering the fact that his right leg was amputated above the knee and that he claims to be an agriculturist as well the milk vendor, I am of the view that the loss of right leg has definitely caused him some percentage of disability to pursue his avocation which he would subsequently suffer in loss of future income. Thus, considering the loss of future income, I fix the percentage of disability at 15%. 16. Even though the claimant has stated that he was earning a sum of Rs. 6,000/- per month, but he has not produced any document in his support. In the absence of any corroborative evidence, it is the notional income prevailing for the relevant year 2006 which is at Rs. 3,750/- is required to be taken. Exs.P5 and P6 shows that age of the injured as on the date of accident is 42 years, for which the relevant multiplier would be ‘14’ Thus, the quantum of compensation towards loss of future income for which the appellant is entitled would be Rs. 3750 x 12 x 14 x 15/100 = Rs. 94,500/-. 17. Exs.P5 and P6 shows that age of the injured as on the date of accident is 42 years, for which the relevant multiplier would be ‘14’ Thus, the quantum of compensation towards loss of future income for which the appellant is entitled would be Rs. 3750 x 12 x 14 x 15/100 = Rs. 94,500/-. 17. Barring the above, the appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads. 18. Thus, in total the appellant/claimant is entitled for a total enhancement of a sum of Rs. 1,39,500/- (Rupees one lakh thirty nine thousand five hundred only), which is in addition to the compensation of a sum of Rs. 75,000/- awarded by the Tribunal. 19. Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part. 20. The judgment and award passed by the Senior Civil Judge and XIV Motor Accidents Claims Tribunal, Tiptur in MVC No. 753/2006 dated 03.03.2012 is modified to the extent that the compensation awarded at Rs. 75,000/- is enhanced by a sum of Rs. 1,39,500/- thus fixing the total compensation at Rs. 2,14,500/- (Rupees two lakh fourteen thousand five hundred only). 21. The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded, shall remain unaltered. 22. Draw modified award accordingly.