Bommegowda v. Manager Universal Sampo Gen Ins Co Ltd. , Bangalore
2020-11-09
NATARAJ RANGASWAMY
body2020
DigiLaw.ai
JUDGMENT Nataraj Rangaswamy, J. - This is an appeal filed by the claimant seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal and XX Additional Judge and XVIII Additional Chief Metropolitan Magistrate, Bengaluru (ACMM-18) in MVC No.7482/2011. 2. It is stated in the claim petition that, on 29.11.2011 at about 9:30 a.m., when the claimant and others were traveling in an autorickshaw bearing registration No.KA-42-7021, a goods Tempo bearing registration No.KA-42-7999 came from the opposite direction and dashed against the autorickshaw. As a result, the claimant suffered serious injuries and was shifted to Government hospital, Kanakapura and then to Sanjay Gandhi hospital, Bengaluru, where he was treated as an inpatient. The Claimant underwent surgery for fixation of internal plates. The claimant contended that he has spent a sum of Rs.40,000/- towards medical expenses and as he was a student, he was entitled to a notional income and thus, filed a claim petition seeking compensation of a sum of Rs.5,00,000/-. 3. The insurer denied its liability and contended that the accident was due to the rash and negligent driving by the driver of the autorickshaw and also denied its liability on the ground that the driver of the goods Tempo did not possess a valid licence. 4. The father of the claimant was examined as PW.1 and the Doctor, who treated the claimant was examined as PW.2 and they marked Exs.P1 to P17 while the insurer did not examine any witness. 5. The Motor Accident Claims Tribunal (for short, the Tribunal ) noticed the injuries sustained by the claimant i.e., compound fracture of right femur, crush injury of right great toe and 2nd toe, fracture of proximal 1/3rd right leg and having regard to the evidence of PW.2 - Doctor, the Tribunal accepted the disability at 21.32% to the whole body and since the claimant was a minor boy aged 16 years, the Tribunal did not feel it appropriate to award any compensation towards loss of income due to disability. The Tribunal, therefore, awarded the following compensation: S. No. Heads under which compensation is awarded Amount (in Rupees) 1. Pain and suffering 60,000/- 2. Transportation charges 4,000/- 3. Special food and nutrition etc. 4,300/- 4. Medical expenses 39,500/- 5. Attendant charges 4,300/- 6. Future Medical expenses 10,000/- TOTAL 1,22,100/- 6.
The Tribunal, therefore, awarded the following compensation: S. No. Heads under which compensation is awarded Amount (in Rupees) 1. Pain and suffering 60,000/- 2. Transportation charges 4,000/- 3. Special food and nutrition etc. 4,300/- 4. Medical expenses 39,500/- 5. Attendant charges 4,300/- 6. Future Medical expenses 10,000/- TOTAL 1,22,100/- 6. The claimant is in appeal and contends that the Tribunal ought not to have rejected the claim for loss of income due to disability, as even as per the Second Schedule to the Motor Vehicles Act, 1988, the claimant was entitled to notional income of Rs.15,000/- per annum. 7. Learned counsel for the claimant contended that in view of the Judgment of the Apex Court in the case of Master Mallikarjun v. Divisional Manager, National Insurance Co. Ltd., and another, (2013) ACJ 2445 , the claimant was entitled to a sum of Rs.3,00,000/- and also that the claimant is entitled to future medical expenses as per the evidence of PW.2 - Doctor. 8. Learned counsel for the first respondent - insurer though did not dispute the fact that the claimant had suffered serious injuries, which had virtually crippled him, yet contended that as per the Judgment of the Apex Court in Master Mallikarjun s case (supra), the claimant may be awarded a sum of Rs.3,00,000/- towards loss of income due to disability. 9. It is not in dispute that the claimant was aged 16 years at the time of the accident. The accident is also due to the actionable negligence by the driver of the goods tempo which was insured by the insurer. Respondent No.1 herein - insurer did not contest the evidence of PW.2 that the claimant had suffered the disability of 63.96% to the limb and 21.32% to the whole body. Even otherwise, the injuries that are sustained by the claimant are mind boggling in the sense his right leg is completely emaciated and therefore, the claimant would henceforth suffer hardship and would loose amenities of life throughout. Therefore, this Court will have to take a considered view while awarding just compensation. 10. In that view of the matter, though it is appropriate to consider the law laid down by the Apex Court in the case of Master Mallikarjun (supra), yet this Court cannot loose sight of the fact that the claimant is a 16 year old boy who has lost the amenities of life throughout.
10. In that view of the matter, though it is appropriate to consider the law laid down by the Apex Court in the case of Master Mallikarjun (supra), yet this Court cannot loose sight of the fact that the claimant is a 16 year old boy who has lost the amenities of life throughout. Hence, the compensation awarded by the Tribunal needs to be enhanced from Rs.1,22,100/- to Rs.4,64,500/- as follows: Heads under which compensation is awarded Amount in (Rupees) Pain and suffering already undergone and to be undergone in future, mental and physical shock, hardship, inconvenience and discomfort etc., and loss of amenities in life on account of permanent disability 3,00,000/- Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization 25,000/- Medical and incidental expenses during the period of hospitalization for 43 days 25,000/- Future medical expenses for correction of the malunion of fracture and incidental expenses for such treatment 25,000/- Correction surgeries, Removal of implants etc. 50,000/- Medical bills 39,500/- TOTAL 4,64,500/- 11. In view of the above, this Appeal is allowed in part and the compensation awarded by the Tribunal is enhanced from Rs.1,22,100/- to a sum of Rs.4,64,500/-, which shall be paid by respondent No.1 - insurer along with interest at the rate of 6% per annum from the date of claim petition till the date of realization. The insurer is directed to deposit the compensation with interest as stated above within a period of two months from the date of receipt of a certified copy of this Judgment. Upon such deposit, 50% of the amount shall be kept in the name of the claimant - appellant in fixed deposit in any nationalized Bank for a period of two years.