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2019 DIGILAW 1491 (KAR)

Yashawanth v. New India Insurance Co Ltd

2019-07-01

K.SOMASHEKAR

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JUDGMENT : K. SOMASHEKAR, J. 1. This appeal though listed for admission, with the consent of the learned counsel for the parties, is taken up for final disposal. 2. This appeal is preferred by the claimant injured against the judgment and award dated 04.02.2014 passed by the Tribunal in MVC No.190/2010 seeking for enhancement of compensation, not being satisfied with the compensation awarded by the Tribunal. 3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 2.4.2007 when the appellant was proceeding as a pillion rider on the motor cycle bearing Reg.No.KA-19/V-1821 from Surathkal to Katipalla and when they reached MRPL Bajpe Road, opposite Ovel Petrol Pump, Bala village at about 3.00 p.m. a tractor bearing Reg.No.KA-19/P-1725 which was proceeding ahead of the bike towards Katipalla side, without observing the rules and regulations suddenly turned towards the right side and dashed the said motor cycle. Due to the accident, the appellant sustained grievous injuries and was treated at hospital and incurred huge medical expenses. Prior to the accident, the appellant who was aged 23 years was working as a Supervisor under a Civil Contractor and was earning Rs.4,000/- per month. He could not do any work and earn any money and support his family due to the injuries suffered in the accident and hence preferred a claim petition before the Tribunal seeking compensation for the injuries. After service of notice, the owner of the offending vehicle as well as the insurer did appear before the tribunal, filed their written statement and contested the claim petition. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.1,01,500/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal seeking enhancement of compensation urging various grounds. 4. It is this judgment which is under challenge in this appeal seeking enhancement of compensation urging various grounds. 4. Learned counsel for the appellant contends that the appellant apart from suffering several injuries, had sustained abrasion over the back and fracture of tibia of the left leg. He was hospitalized for 17 days during which period he is said to have suffered a lot of mental and physical agony. Hence, the learned counsel contends that the compensation awarded by the Tribunal under each of the heads requires to be enhanced suitably by this Court. Particularly, the learned counsel contends that the Tribunal has granted meager compensation of Rs.25,000/- towards 'Pain and agony'. He contends that having regard to the gravity of suffering he had undergone due to the injuries, the compensation under the said head requires to be enhanced suitably. He vehemently contends that though the Doctor had opined that the appellant had suffered disability to an extent of 7%, the same has not been taken into consideration by the Tribunal and as a result, no compensation has been awarded towards 'Loss of income due to disability' and hence the learned counsel contends that the said head may be considered and compensation be granted in respect of the said head suitably. Further, the learned counsel contends that the Tribunal has taken his notional income at Rs.4,000/- to award compensation towards 'Loss of income during laid up period'. However, having regard to the fact that the accident is of the year 2007 he pleads that the income be taken at Rs.5,000/- and compensation be suitably enhanced. It is the further contention of the learned counsel that a very meager compensation of Rs.3,500/- has been awarded towards 'Attendant charges' and pleads that the same be enhanced suitably. Even as far as grant of amenities is concerned, the Tribunal has erred in granting a very minimal amount of Rs.10,000/- and hence he prays that the compensation under the said head also be enhanced suitably. Due to the injuries sustained, the appellant had undergone fracture of tibia of the left leg and was hospitalized for 17 days and further he had to undergo further surgery for removal of implants, the learned counsel pleads that the compensation of Rs.10,000/- granted by the Tribunal towards 'Future medical expenses' also be enhanced suitably. Due to the injuries sustained, the appellant had undergone fracture of tibia of the left leg and was hospitalized for 17 days and further he had to undergo further surgery for removal of implants, the learned counsel pleads that the compensation of Rs.10,000/- granted by the Tribunal towards 'Future medical expenses' also be enhanced suitably. Thus, the learned counsel strenuously contends that the appeal filed by the appellant be allowed and the compensation awarded by the Tribunal be enhanced in respect of all the above heads suitably. 5. Per contra, learned counsel for the first respondent Insurance Company vehemently opposes the contentions put forth by the counsel for the appellant and contends that the Tribunal, taking into consideration the fact that the appellant had sustained fracture of tibia of the left leg and was hospitalized for 17 days, has awarded just and fair compensation under all the heads and hence, enhancement of compensation under any of the heads would not arise. Hence, the learned counsel contends that the judgment passed by the Tribunal requires no interference by this Court. 6. In the backdrop of the contentions taken by the learned counsel for the parties, I find that there is no dispute with regard to the accident that occurred on 02.04.2007 and with regard to the injuries suffered by the appellant / claimant in the accident. As rightly contended by the learned counsel for the appellant, I find that the Tribunal has erred in not awarding any compensation towards 'Loss of future income due to disability'. Since PW-2 Doctor had opined that the appellant suffered 7% permanent disability in respect of the left lower limb which is disclosed from Exhibit P9 Disability Certificate, I find it appropriate to take the whole body disability of the appellant at 2.5% in order to compute the compensation to be awarded towards 'Loss of future income due to disability'. Further, having regard to the fact that the appellant injured was aged 24 years at the time of the accident, the appropriate multiplier according to the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION, (2009) ACJ 1298 would be 18'. Though there are no settled norms fixed to take the income of the injured for an accident of the year 2007, in my opinion, the income of Rs.4,000/- taken by the Tribunal is on the lower side. Though there are no settled norms fixed to take the income of the injured for an accident of the year 2007, in my opinion, the income of Rs.4,000/- taken by the Tribunal is on the lower side. Hence, I hereby take the notional income of the injured at Rs.5,000/-. Hence, with Rs.5,000/- as the income per month, applying multiplier 18' and with whole body disability at 2.5%, the compensation towards 'Loss of future income due to disability' is arrived at Rs.27,000/- (Rs.5,000/- x 12 x 18 x 2.5%). Having regard to the fact that the appellant was hospitalized for 17 days and was fixed with implants due to fracture, I find that he would have undergone utmost pain and agony due to the injuries sustained. Hence, I hereby enhance the compensation towards 'Pain and Agony' by another Rs.15,000/- in addition to Rs.25,000/- awarded by the Tribunal. Further, Rs.3,500/- awarded by the Tribunal towards 'Attendant charges' also is very much meager and hence, I hereby enhance the compensation under the said head by another Rs.7,500/-. Having regard to the fact that in view of the injuries sustained in the accident he was without work for a minimum period of three months, I hereby enhance the compensation towards 'Loss of income during laid up period by another Rs.3,000/-. Further, due to the fact that he had lost all his amenities during the said period of three months, I find it justified to enhance the compensation towards 'Loss of amenities' by another Rs.10,000/-. The compensation towards 'future medical expenses' granted by the Tribunal at Rs.10,000/- is also being meager, I hereby enhance compensation towards the said head by another Rs.5,000/-. However, I am of the opinion that sufficient compensation has been granted by the Tribunal towards all other heads and hence the same requires no interference. 7. The compensation towards 'future medical expenses' granted by the Tribunal at Rs.10,000/- is also being meager, I hereby enhance compensation towards the said head by another Rs.5,000/-. However, I am of the opinion that sufficient compensation has been granted by the Tribunal towards all other heads and hence the same requires no interference. 7. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation enhanced by this Court Total Pain and Agony 25,000 15,000 40,000 Medical expenses 35,000 Nil 35,000 Attendant Charges 3,500 7,500 11,000 Nutrition, traveling expenses 6,000 Nil 6,000 Loss of future income due to disability Nil 27,000 27,000 Loss of income during laid up period 12,000 3,000 15,000 Loss of amenities 10,000 10,000 20,000 Future medical expenses 10,000 5,000 15,000 TOTAL 1,01,500 67,500 1,69,000 Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part. The impugned judgment and award dated 04.02.2014 passed by the Tribunal in MVC No.190/2010 is hereby modified. The compensation payable to the appellant / injured is enhanced from Rs.1,01,500/- to Rs.169,000/-. The total enhanced compensation would come to Rs.67,500/-. The enhanced compensation shall carry interest at the rate of 6% per annum. The first respondent New India Insurance Co. Ltd. shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellant / claimant on proper identification. Office to draw the decree accordingly.