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2019 DIGILAW 378 (KAR)

Abdul @ Abdhulla v. Periyannan

2019-02-08

K.SOMASHEKAR

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JUDGMENT : K. Somashekar, J. Though the matters are listed for admission, with consent of both the parties, the same are heard for final disposal. Further, since the appeals arise out of a common judgment, they are heard together and are disposed of by this common order. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2 Insurance Company in both the appeals and perused the records. 3. The injured-claimant in both the appeals has preferred these appeals, being not satisfied with the quantum of compensation awarded in the impugned common judgment dated 02.03.2016, passed by the IX Addl. Small Causes and Addl. MACT, Bengaluru made in MVC No.2749/2014 C/w. MVC No.2750/2014, seeking enhancement of compensation. 4. The factual matrix of the appeals is that on 09.03.2014 when the appellant in MFA.No.7767/2016 was riding his TVS vehicle bearing Registration No.KA- 02-HF-6382 along with the appellant in MFA No.7768/2016 as a pillion, when he was about to take right turn near Hosa Road Burial Ground to reach Dodda Thogur at about 3.30 p.m., at that time a Tipper lorry bearing Regn.No.KA-53-3331 which was driven by its driver in a rash and negligent manner coming from Kudlu, dashed against their two-wheeler, as a result of which the appellant in both the appeals namely the rider and pillion rider fell down and sustained grievous injuries to their head, left leg and all over the body. Both of them were admitted to Blossom Hospital Bommanahalli and were treated as in-patients in the said hospital from 09.03.2014 to 15.03.2014 and are said to have incurred Rs. 2,50,000/- towards medical expenses, nourishment, conveyance, treatment and attendant charges. Hence, they had filed claim petitions before the Tribunal seeking compensation. 5. After service of notice in both the appeals, the owner of the offending vehicle Respondent No.1 herein remained absent and was placed exparte. However, Respondent No.2 - Insurer did appear before the tribunal, filed written statement and contested the claim petitions. During the enquiry before the tribunal, the claimant in both the appeals had 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. 6. During the enquiry before the tribunal, the claimant in both the appeals had 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. 6. 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 Tipper lorry and consequently awarded total compensation of Rs. 5,77,642/- in respect of the appellant in MFA 7767/2016 and Rs. 3,19,573/- in respect of the appellant in MFA 7768/2016 with interest at 8% per annum from the date of petition till the date of payment. 7. The learned counsel for the appellant in MFA No.7767/2016 vehemently contended that the four injuries sustained by the appellant are grievous in nature and have caused permanent disability to the appellant. Hence, the income taken for awarding the amount towards loss of future income due to permanent disability is on the lower side. Further, though PW-3 Doctor had assessed the whole body disability at 22%, the Tribunal without assigning reasons has taken the whole body disability at just 15% in order to arrive at the compensation, which requires interference having regard to the evidence of the Doctor. Further, he contends that the award of compensation towards medical expenses, loss of income during laid up period and towards conventional heads are also inadequate and requires enhancement. 8. The learned counsel for the appellant in MFA No.7768/2016 vehemently contended that the income taken for awarding the amount towards loss of future income due to permanent disability is on the lower side. Further, though PW3 Doctor had assessed the permanent disability of the whole body at 17%, but the Tribunal without assigning reasons has taken the disability at just 10% to award compensation. Further he contended that the award of compensation towards medical expenses, loss of income during laid up period and towards conventional heads are also inadequate and requires enhancement. Thus, the learned counsel for the appellant in both the appeals seeks that the compensation awarded to the claimant in both the appeals may be enhanced having regard to the nature of the injuries sustained by the appellants. 9. Thus, the learned counsel for the appellant in both the appeals seeks that the compensation awarded to the claimant in both the appeals may be enhanced having regard to the nature of the injuries sustained by the appellants. 9. Per contra, the learned counsel appearing for the second respondent - Insurer submitted that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation in respect of both the claimants, which do not call for interference and prays for dismissal of both the appeals. 10. On careful evaluation of the material on record, it is seen that the injured claimant / appellant in MFA 7767/2016 was aged 45 years at the time of accident and doing mason work was diagnosed to have type 3B open fracture of both bones of left tibia and fibula and was operated on 10.03.2014 for wound debridement and posterior stabilization with K wires, wound debridement and posterior stabilization with K wires. Wound debridement was repeated on 12.03.2014 and intramedullary interlocking nailing was done and then wound debridement and muscle transposition flap and SSG was done by plastic surgeon Dr. Bharath S.P. and he was discharged on 26.03.2014. He was again under follow up treatments for a period of six months. Thus he had sustained 4 grievous injuries and was in hospital as an in-patient for 37 days and could not do any work for at least six months. The Doctor PW-3 has assessed his whole body disability at 22%. Hence, the Tribunal has erred in taking his whole body disability at just 15%. Hence, I feel that it would be just and proper to take the whole body disability at 20% to compute the compensation to be awarded. Further, the accident being of the year 2014, the income of the appellant ought to have been taken at Rs. 9,000/- instead of Rs. 8,000/-. Thus, the notional income of the appellant is taken at Rs. 9,000/- instead of Rs. 8,000/-. Thus, with the income of the appellant at Rs. 9,000/- and 20% disability with multiplier 14', the 'Loss of future income due to disability' is arrived at Rs. 3,02,400/- (9000 x 12 x 20/100 x 14), as against Rs. 2,01,600/- awarded by the Tribunal. The enhanced compensation towards 'Loss of future income due to disability' would come to Rs. 1,00800/-. Thus, with the income of the appellant at Rs. 9,000/- and 20% disability with multiplier 14', the 'Loss of future income due to disability' is arrived at Rs. 3,02,400/- (9000 x 12 x 20/100 x 14), as against Rs. 2,01,600/- awarded by the Tribunal. The enhanced compensation towards 'Loss of future income due to disability' would come to Rs. 1,00800/-. Further, due to the fractures and implants and external fixation, the appellant could not attend to his work as a mason, for a minimum period of six months. Since the income is taken at Rs. 9,000/-, the compensation towards 'Loss of income during laid up period' is hereby enhanced to Rs. 54,000/- as against Rs. 48,000/- awarded by the Tribunal. The total enhanced compensation would come to Rs. 1,06,800/- in respect of the appellant in MFA No.7767/2016. 11. Further, in so far as the appellant in MFA No.7768/2016 is concerned, it is seen that the injured claimant / appellant in MFA 7768/2016 was aged 30 years at the time of accident and doing mason work had sustained two grievous injuries and was an in-patient in hospital for 7 days. During the course of treatment, implants were inserted and thereafter were removed and he could not carry on his normal day-to-activities. Exhibit P13 Discharge Summary and Exhibit P22 case sheet disclosed that he had open degloving injury LT foot and during the course of treatment wound debridement / suturing was done under SA on 10.03.2014. He was also under follow-up treatment. The Doctor PW-3 has assessed his permanent physical disability of the right lower limb at 52% and disability of the whole body at 17%. However, having regard to the facts and circumstances, the Tribunal has adopted the whole body disability at 10%. I find that the same does not call for interference. Further, the accident being of the year 2014, the income of the appellant ought to have been taken at Rs. 9,000/- instead of Rs. 8,000/-. Thus, the notional income of the appellant is taken at Rs. 9,000/- instead of Rs. 8,000/-. Thus, with the income of the appellant at Rs. 9,000/- and 10% disability with multiplier 17', the 'Loss of future income due to disability' is arrived at Rs. 1.83,600/- (9000 x 12 x 10/100 x 17), as against Rs. 1,63,200/- awarded by the Tribunal. Thus, the notional income of the appellant is taken at Rs. 9,000/- instead of Rs. 8,000/-. Thus, with the income of the appellant at Rs. 9,000/- and 10% disability with multiplier 17', the 'Loss of future income due to disability' is arrived at Rs. 1.83,600/- (9000 x 12 x 10/100 x 17), as against Rs. 1,63,200/- awarded by the Tribunal. The enhanced compensation towards 'Loss of future income due to disability' would come to Rs. 20,400/-. Further, due to the fractures and implants the appellant could not attend to his work as a mason, for a minimum period of four months. Since the income is taken at Rs. 9,000/-, the compensation towards 'Loss of income during laid up period' is hereby enhanced to Rs. 36,000/- as against Rs. 32,000/- awarded by the Tribunal. The total enhanced compensation would come to Rs. 24,400/- in respect of the appellant in MFA No.7768/2016. 12. Accordingly, I proceed to pass the following: The appeal in MFA No.7767/2016 is allowed in part. In modification of the impugned judgment and award dated 02.03.2016 passed by the Tribunal in MVC No.2749/2014, the compensation payable to the claimant is enhanced from Rs. 5,77,642/- to Rs. 6,84,442/-. The enhanced compensation would come to Rs. 1,06,800/-. The second Respondent13 insurer shall deposit the enhanced compensation with interest at 8% before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered. Further, the appeal in MFA No.7768/2016 is allowed in part. In modification of the impugned judgment and award dated 02.03.2016 passed by the Tribunal in MVC No.2750/2014, the compensation payable to the claimant is enhanced from Rs. 3,19,573/- to Rs. 3,43,973/-. The enhanced compensation would come to Rs. 24,400/-. The second Respondent-insurer shall deposit the enhanced compensation with interest at 8% before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered. There shall be no order as to costs. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered. There shall be no order as to costs. Office to draw the decree accordingly.