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2020 DIGILAW 1331 (KAR)

Kirana v. Naveenkumar B P

2020-07-06

ARAVIND KUMAR, E.S.INDIRESH

body2020
JUDGMENT E S Indiresh, J. - These appeals are preferred by the appellant-claimants against the judgment and awards dated 06th December, 2016 passed in MVC No.916 and 915 of 2015 on the file of V Additional District and Sessions Court and Additional Motor Accident Claims Tribunal, Hassan (for short hereinafter referred to as 'the Tribunal'). 2. The brief facts, for the purpose of adjudication of these appeals are, that on 08th March, 2015, the claimant in MVC No.916 of 2015 (appellant herein in MFA No.3391 of 2017), was riding motorcycle bearing registration No.KA 13 X 5725 along with one Aruna, claimant in MVC No.915 of 2015 (appellant herein in MFA No.3393 of 2017) as pillion rider and at about 10.30 pm when they were passing through Hassan-Dudda road near Hosur gate Hassan, a car bearing registration No.KA 13 N 3899 being driven in a rash and negligent manner dashed against their motor-cycle and as a result of the said accident claimant-appellants sustained grievous injuries. Immediately, they were shifted to Janapriya Hospital, Hassan and were there as inpatients for about 2 months. For the injuries sustained in the road traffic accident, they filed claim petitions in MVC No.915 and 916 of 2015 before the Tribunal. 3. In the claim petitions, claimant in MVC No.915 of 2015 has stated that he had incurred an amount of Rs.4,50,000/- and the claimant in MVC No.916 of 2015 has stated that he had incurred Rs.2,50,000/- towards medical expenses. It is the case of the claimants that they were earning a sum of Rs.30,000/- per month by working as mason and also as agriculturists. Due to the said accident, they are unable to eke-out their livelihood by carrying on their profession. Hence, they filed claim petitions seeking compensation of Rs.20,00,000/- each along with interest @ 18% per annum from the date of petition till the date of realisation. 4. After service of notice, respondent No.1-insured who was served ws unrepresented and as such was placed ex-parte and respondent No.2-Insurance company appeared and filed a detailed statement of objections, denying averments made in the claim petition. Based on the pleadings referred to above, Tribunal formulated following common issues: 1. Whether the petitioners prove that on accident occurred due to the actionable negligence on the part of the driver of the car bearing registration No.KA 13 N 3899 and in the accident they had sustained injuries? 2. Based on the pleadings referred to above, Tribunal formulated following common issues: 1. Whether the petitioners prove that on accident occurred due to the actionable negligence on the part of the driver of the car bearing registration No.KA 13 N 3899 and in the accident they had sustained injuries? 2. Whether the petitioners are entitled for the compensation? If so, what is the quantum and from whom? 3. What order or award? 5. In order to establish their case, claimant in MVC No.915 of 2015 was examined as PW1, claimant in MVC No.916 of 2015 was examined as PW2 and they have produced 14 documents as per Exhibits P1 to P14. Doctor who has examined the appellantclaimants was examined as PW3 and he has produced Exhibits P15 and P19. The Respondent-Insurance Company has not preferred to lead any evidence before the Tribunal. 6. Tribunal, after considering the material on record and the arguments advanced by the learned counsel appearing for the claimants as well as the learned counsel appearing for the Respondent-Insurance Company, by its judgment and awards dated 06th December, 2016 allowed the claim petitions in part and held that respondents are jointly and severally liable to pay compensation with interest @ 9% per annum from the date of petition till payment of compensation. The compensation awarded by the Tribunal is as follows: Head MVC No. 915 of 2015 (Rs.) MVC No. 916 of 2015 (Rs.) Loss of Income 2,07,000.00 1,55,000.00 Attendant charges 20,000.00 28,000.00 Pain and suffering and dietary charges 20,000.00 20,000.00 Medical expenses 1,65,000.00 24,000.00 Future Medical Expenses 60,000.00 50,000.00 Total 4,72,000.00 2,77,000.00 7. Not being satisfied with the quantum of compensation awarded by the Tribunal, appellants have preferred these appeals seeking enhancement of compensation. 8. Smt. Kavitha H.C., learned counsel appearing for appellants submits that compensation awarded by the Tribunal is on the lower side and same requires enhancement. She further submits that amount awarded under the heads Pain & Suffering, Conveyance, nourishment and attendant charges is on the lower side. She submits that the appellants were inpatients for a period more than five months and yet the Tribunal has not awarded any compensation towards loss of income during the laid-up period and also towards loss of amenities. She further submits that amount awarded under the heads Pain & Suffering, Conveyance, nourishment and attendant charges is on the lower side. She submits that the appellants were inpatients for a period more than five months and yet the Tribunal has not awarded any compensation towards loss of income during the laid-up period and also towards loss of amenities. It is also her submission that though the appellants have claimed that they were earning Rs.30,000/- per month by doing mason work and being agriculturists, Tribunal had taken the income of the appellants at Rs.6,000/- per month which is very much on the lower side. Hence, she prays for enhancement of compensation under all heads. 9. Per contra Shri H.C. Betsur, learned counsel appearing for the second respondent-Insurance Company supports the awards and submits that Tribunal has awarded just compensation based on material on record and same does not call for any interference in these appeals. 10. Having heard the learned counsel appearing for the parties, the points for consideration in these appeals is: 1. Whether the judgment and awards passed by the Tribunal would call for our interference? and if yes, whether appellants are entitled for enhancement in compensation and to what extent. 11. We have perused the judgment and awards passed by the Tribunal. We have also carefully gone through the original records. It is not in dispute that claimants had sustained injuries on account of road traffic accident that occurred on 08th March, 2015 when appellant in MFA No.3391 of 2017 was riding motorcycle bearing registration No.KA 13 X 5725 along with appellant in MFA No.3393 of 2017 as a pillion rider, and at about 10.30 pm when they were passing through Hassan-Dudda road, Hassan a car bearing registration No.KA 13 N 3899 being driven in a rash and negligent manner having dashed against motorcycle of the claimant-appellants and as such they had sustained grievous injuries. Perusal of exhibits P1 to P12 viz. FIR, complaint, IMV Report, wound certificate, spot mahazar, sketch and charge sheet filed by the Investigation Officer, would reveal the fact that the claimants sustained injuries on account of rash and negligent driving of the driver of the first respondent-car. Under the circumstances, the finding recorded by the Tribunal with regard to issue No.1 does not call for any interference by this Court. 12. Under the circumstances, the finding recorded by the Tribunal with regard to issue No.1 does not call for any interference by this Court. 12. Perusal of wound certificate would indicate that following injuries was sustained by the claimants: Claimant in MVC No.915 of 2015 1. Fracture upper end of femur with crush injury right thigh; 2. Fracture fibula right; 3. Fracture tibia right; 4. Laceration call; 5. Laceration right foot with tendon injury; and Claimant in MVC No.916 of 2015 1. Fracture tibia right; 2. Fracture fibula right; 3. Fracture femur right; 4. Tenderness TL spine 13. Perusal of evidence of PW3-Doctor would reveal that the claimants have sustained permanent disability to their right lower limb in an extent of 35% and 48% respectively. PW3- Doctor has also deposed that the claimant-appellants have to undergo further surgery for removal of implants. 14. After considering the material on record, we are of the view that the income taken by the Tribunal at Rs.6,000/- per month is on the lower side. It is claimed by the appellantclaimants that they were doing masonry work as well as carrying on agricultural operations as coolies. Both the claimants are able bodied persons and aged 23 years and 20 years respectively. They are permanent residents of Idella village and Mahadevarahalli village in Hassan Taluk. They contended before Tribunal that they were carrying on the avocation of mason work and also carrying on agricultural operations as coolies. In the remote villages, it cannot be expected that they would have any documentary proof with regard to the avocation. It is not the case of the insurer that claimants were without any avocation. As such, Tribunal, on the basis of guess-work has construed the income of claimants at Rs.6,000/- per month, which is marginally on the lower side. Even if it is accepted that xclaimants were carrying on the avocation of mason and also doing agricultural and also working as agricultural coolies, their income cannot be less than Rs.9,000/- per month. As such, we are of the considered view that Tribunal was in error in construing income of the claimants at Rs.6,000/- per month and we adopt the income of claimants at Rs.9,000/- per month. Considering the age of the appellants, Tribunal has applied the multiplier 18 and same is appropriate as per the decision of the Hon'ble Supreme Court in the case of SMT. Considering the age of the appellants, Tribunal has applied the multiplier 18 and same is appropriate as per the decision of the Hon'ble Supreme Court in the case of SMT. SARLA VARMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 . Accordingly, the appellants are entitled for compensation under the of head loss of future earnings or towards disability in a sum of Rs.2,33,280/- (Rs.9,000/- x 12 x 18 x 12%) in MFA No.3391 of 2015; and Rs.3,11,040/- (Rs.9,000/- x 12 x 18 x 16%) in MFA No.3393 of 2017 in lieu of Rs.1,55,000/- and Rs.2,07,000/- respectively, awarded by the Tribunal. Further, we are of the view that compensation of Rs.20,000/- awarded by the Tribunal towards pain and suffering is on the lower side. Doctor who has been examined as P.W.3 has opined that injuries-1 to 3 sustained by both the claimants in MVC Nos.915/2015 and 916/2015 are grievous in nature. Both the claimants were operated and implants have been fixed for the fractures. Doctor has also opined that both the claimants have sustained disability to the right lower limb to the extent of 48% and 38% respectively. There being no other evidence available on record, disability to the whole body as assessed by the Doctor and accepted by the Tribunal would not call for interference. However, fact remains that on account of these injuries sustained, surgery being conducted, they would have undergone pain and suffering and compensation awarded by the Tribunal to each of the claimants in a sum of Rs.20,000/- is abysmally on the lower side. Considering the nature of injuries sustained by the appellant-claimants as per the wound certificate vide exhibits P8 and P12, the compensation requires to be enhanced under the said head. From the claim petition it is seen that the appellants were inpatients for nearly five months. Considering the nature of injuries suffered by the appellants, compensation is to be awarded under the head loss of income during laid-up period by taking the monthly income at Rs.9,000/- and inferring laid-up period as six months for the appellant in MFA 3391 of 2017 and for a period of four months for the appellant in MFA No.3393 of 2017. Considering the nature of injuries suffered by the appellants, compensation is to be awarded under the head loss of income during laid-up period by taking the monthly income at Rs.9,000/- and inferring laid-up period as six months for the appellant in MFA 3391 of 2017 and for a period of four months for the appellant in MFA No.3393 of 2017. The compensation awarded by the Tribunal under the head pain and suffering is also on the lower side and considering the grievous injuries suffered by the appellants, the same requires to be suitably enhanced by awarding just compensation. Considering the duration of hospitalisation of the appellants, we are of the opinion that attendant charges awarded by the Tribunal is also on the lower side and same requires to be enhanced to Rs.50,000/- in MFA No.3391 of 2017 and Rs.40,000/- in MFA No.3393 of 2017. We have also noticed from the judgment and awards that the Tribunal has not awarded compensation towards loss of amenities and as such, having regard to the Hon'ble Supreme Court in the case of SARLA VARMA (supra), award of Rs.50,000/- each to the claimant-appellants is just and proper as some comforts in life would be lost to them. The award passed by the Tribunal at Rs.1,65,000/- and Rs.24,000/- under the head Medical expenses; and Rs.50,000/- and Rs.60,000/- under the head Future medical expenses, are left unaltered. 15. In view of re-appreciation of evidence, assessment of compensation awarded to the appellant-claimants on account of actionable negligence of respondents, they would be liable to pay the clamants enhanced compensation. In the result, the appellant-claimants are entitled for enhanced compensation as follows: Head MVC No. 915 of 2015 (Rs.) MVC No. 916 of 2015 (Rs.) Loss of future earnings or towards disability 3,11,040 2,33,280 Pain and suffering 1,00,000 60,000 Loss of amenities 50,000 50,000 Loss of income during laid up period 36,000 54,000 Attendant, nutrition and other incidental charges, 40,000 50,000 Medical expenses 1,65,000 24,000 Future medical expenses, if there is any evidence 60,000 50,000 Total 7,62,040 5,21,280 16. Hence the following: ORDER (i) Appeals are allowed in part; (ii) Judgment and awards dated 06th December, 2016 passed by the V Additional District and Sessions Court and Additional MACT, Hassan in MVC No.915 of 2015 and MVC No.916 of 2015 is substituted by awarding total compensation of Rs.7,62,040/- and Rs.5,21,280/- respectively, which shall carry interest and 6% per annum (on the enhanced compensation, viz. difference of compensation awarded by the Tribunal and enhancement made by this court) from the date of petition till the date or payment or deposit whichever is earlier; (iii) The insurer shall deposit the difference/enhanced compensation before the jurisdictional Tribunal within eight weeks from the date of receipt of certified copy of this judgment; (iv) The release and Fixed Deposit as ordered by the Tribunal shall hold good for enhanced compensation also.