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2023 DIGILAW 728 (KAR)

Srinivasa Reddy v. M. V Rajashekar

2023-05-30

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. Aggrieved by the judgment and award dated 16-11-2016 passed in MVC No.827/2015 by the learned II Additional Small Causes Judge and XXVIII ACMM and MACT, Bengaluru (SCCH-13), whereby the petition came to be allowed in part and a sum of Rs.3,13,018/- has been awarded as compensation, the petitioner has approached this Court in appeal seeking enhancement urging various grounds. 2. The parties would be referred to as per their ranks before the Tribunal for the sake of convenience. 3. The brief facts are as below: On 04.07.2014, at about 10.40 a.m. the petitioner along with one Shivappa had been to Bagepalli on motor cycle bearing Reg. No. KA-51-R-2001 to attend some work at Bagepalli and when they reached Nallappa Reddypalli Cross, at that time, the driver of the Ambassador Car bearing Reg. No. MEV-4545 came from Bagepalli side in a rash and negligent manner and dashed against the petitioner's motor cycle. Due to the said impact, petitioner fell down and sustained injuries. Immediately, he was shifted to Government General Hospital, Bagepalli, for first aid treatment and later, was shifted to Bowring and Lady Curzon Hospital, Bangalore, wherein he was admitted as an inpatient. It was further contended that, prior to the accident, petitioner was hale and healthy, doing Agriculture, Sericulture and Dairy farming and has income of Rs.5,000/- P.A. out of Agriculture, Rs.4,000/- P.A. from Sericulture and Rs.20,000/- to 30,000/- p.m. from Diary farming and he was contributing for the welfare of the family maintenance and due to the injuries sustained in the accident, he has sustained permanent disability and not able to do any work as before. Hence, claimed compensation of Rs.8,00,000/-. 4. In response to the notices issued by the Tribunal, respondent Nos.1 and 2 appeared through their counsels and filed their separate objection statement. 5. The 2nd respondent-Insurance Company in its objection statement had admitted that it had issued the policy in respect of Car bearing Reg. No. MEV-4545, but its liability is subject to the terms and conditions of the policy. 5. The 2nd respondent-Insurance Company in its objection statement had admitted that it had issued the policy in respect of Car bearing Reg. No. MEV-4545, but its liability is subject to the terms and conditions of the policy. The 2nd respondent further contended that the driver of the said ambassador Car was driving the same carefully and cautiously by observing all traffic rules, but the petitioner riding his vehicle without having proper look out of the traffic, rode the motor cycle in a rash and negligent manner without observing vehicular traffic and suddenly came to the middle of the road and hence accident took place solely due to negligence on the part of the petitioner. Both the respondents have contended that the petition is not maintainable either in law or on facts. Further they contended that there is no negligence on the part of the driver of the said Car bearing Reg. No. MEV- 4545 and entire negligence is only on the part of petitioner. Both the respondents have disputed the age, avocation and income of the deceased. They also contended that the compensation claimed by the petitioner is excessive, exorbitant and speculative. On the above grounds, they prayed for dismissal of the petition. 6. On the basis of the above pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration. Before the Tribunal, the petitioner was examined himself as PW-1 and one witness was examined as PW2 and Exhibits P1 to P17 were marked. The respondents have not lead any evidence. 7. On hearing both the sides and considering the materials available on record, the Tribunal has partly allowed the petition and has awarded a sum of Rs.3,13,018/ as compensation to the petitioner under different heads as below: 1 Pain and sufferings Rs. 30,000/- 2 Medical expenses Rs. 23,408/- 3 Loss of earning during laid down period Rs. 24,000/- 4 Loss of future income due to disability Rs.2,07,360/- 5 Conveyance, nourishment food & attendant charges Rs. 8,250/- 6 Future Medical expenses Rs. 20,000/- Total Rs.3,13,018/- 8. Being aggrieved by the said judgment and award, the petitioner is before this Court in appeal seeking enhancement. 9. On issuance of notice, respondent No.2-Insurance Company has appeared through its counsel and the respondent No.1 has not appeared despite proper service of notice. 10. The records of the Tribunal has been secured. 20,000/- Total Rs.3,13,018/- 8. Being aggrieved by the said judgment and award, the petitioner is before this Court in appeal seeking enhancement. 9. On issuance of notice, respondent No.2-Insurance Company has appeared through its counsel and the respondent No.1 has not appeared despite proper service of notice. 10. The records of the Tribunal has been secured. The arguments by learned Counsel for the appellant and respondent No.2 are heard and perused the records. 11. Learned Counsel for the appellant submitted that the Tribunal has not properly appreciated the functional disability of the petitioner and it has simply taken 1/3rd of the physical disability as the functional disability. It is submitted that the petitioner was an agriculturist and due to the injuries suffered, the functional disability is also equal to the physical disability. He has placed reliance on the documents available on record to buttress his arguments and has sought for enhancement of the compensation amount. 12. Learned Counsel appearing for respondent No.2- Insurance company contends that the Tribunal has rightly considered the available evidence on record and has come to proper conclusion. He submits that the petitioner do not have any agricultural land in his name and therefore, no interference is necessary in respect of the quantum of the compensation amount awarded by the Tribunal. 13. The fact that there was an accident involving the vehicle owned by the respondent No.1 and insured by respondent No.2 is not in dispute. The Tribunal has concluded that there was an accident on 04.07.2014 involving the car bearing Reg.No. MEV-4545 and the accident occurred due to the negligence of the car driver. This aspect and the fact that the vehicle was covered by insurance policy issued by the respondent No.2 is not in dispute. 14. A perusal of the records show that the petitioner had sustained segmental displaced fracture of proximal femur of the right side and he had undergone surgery in the form of ORIF with interlocking nail. The petitioner was inpatient from 04.07.2014 to 15.07.2014. Thereafter, the disability of the petitioner was assessed by PW-2 who came to the conclusion that there is a shorting of limb by 4 cm and there is a non-union and observed that there is gait and wasting of muscles and as a result, there is physical disability of right lower limb to the extent of 29%. Thereafter, the disability of the petitioner was assessed by PW-2 who came to the conclusion that there is a shorting of limb by 4 cm and there is a non-union and observed that there is gait and wasting of muscles and as a result, there is physical disability of right lower limb to the extent of 29%. By noting that the petitioner is an agriculturist, he opined that the physical disability is also the whole body disability. A perusal of Ex.P-17, the x-ray taken at the time of assessment of the disability would show that there is a non-union. 15. The petitioner has also produced Ex. P10, three RTCs to establish that his father own agriculture lands to the extent of more than 7 acres. Therefore, the fact that the petitioner was an agriculturist cannot be denied. 16. It is relevant to know that functional disability has to be assessed by the Tribunal by considering the avocation of the petitioner with reference to the disability to the limb. A disability of the limb, in certain circumstances may impair the functional abilities of the injured to the greater extent than the physical disability itself. This exercise has to be done by the Tribunal in order to assess just compensation. In the case on hand, the Tribunal has jumped to the conclusion that the functional disability of the petitioner is 1/3rd of the physical disability. When we juxtapose the physical disability of 29% to the right lower limb of the petitioner with his avocation of agriculture, who is aged 35 years, it is evident that the disability definitely affect his productivity as an agriculturist. It is significant to note that there is shortening of the limb by 4cms, which has resulted in gait. In the considered opinion of this Court, such functional disability is to the extent of 17%. 17. The Tribunal has considered the income of petitioner at Rs.12,000/- p.m. and I do not find any reason to interfere in the same. Therefore, the compensation under the head of loss of future earning capacity is calculated as: Rs.12,000/-x 12 x 16 x 17% = Rs.3,91,680/- by adopting multiplier of 16 for the age of 35 years. 18. 17. The Tribunal has considered the income of petitioner at Rs.12,000/- p.m. and I do not find any reason to interfere in the same. Therefore, the compensation under the head of loss of future earning capacity is calculated as: Rs.12,000/-x 12 x 16 x 17% = Rs.3,91,680/- by adopting multiplier of 16 for the age of 35 years. 18. So far as the compensation of Rs.30,000/- and Rs.23,408/- and Rs.20,000/- under the head of 'pain and suffering', 'medical expenses' and 'future medical expenses' are concerned, the Tribunal has assessed the same on the basis of the bills produced and the evidence of PW-2. This Court do not find any reason to differ with the compensation awarded under these heads. 19. So far as the compensation under the head of 'loss of income during laid-up period' is concerned, the Tribunal has awarded the compensation only for two months. Evidently, there was a non-union of the fracture of femur and therefore, the petitioner is entitled for compensation under this head for a period of three months i.e. Rs.36,000/- (Rs.12,000x3). 20. The Tribunal has not awarded any compensation under the head of 'loss of amenities in life'. The gait on account of shortening of leg by 4cms would remain forever. Therefore, it would be just and proper to award a sum of Rs.20,000/- under this head. 21. The Tribunal has awarded a sum of Rs.8,250/- towards incidental expenses. It is evident that the petitioner has to undergo one more surgery for non-union of the femur bone. Hence, the incidental charges are enhanced to a sum of Rs.10,000/-. 22. Hence, the compensation is reassessed as below: 1 Pain and suffering Rs. 30,000/- 2 Medical Expenses Rs. 23,408/- 3 Future medical expenses Rs. 20,000/- 4 Loss of income during laid up period Rs. 36,000/- 5 Loss of future earning due to disability Rs. 3,91,680/- 6 Loss of amenities in life Rs. 20,000/- 7 Incidental charges conveyance etc. Rs. 10,000/- Total Less: awarded by the Tribunal Enhancement Rs. 5,31,088/- Rs. 3,13,018/- Rs. 2,18,070/- 23. Thus, the compensation is enhanced by a sum of Rs.2,18,070/- in addition to what has been awarded by the Tribunal. 36,000/- 5 Loss of future earning due to disability Rs. 3,91,680/- 6 Loss of amenities in life Rs. 20,000/- 7 Incidental charges conveyance etc. Rs. 10,000/- Total Less: awarded by the Tribunal Enhancement Rs. 5,31,088/- Rs. 3,13,018/- Rs. 2,18,070/- 23. Thus, the compensation is enhanced by a sum of Rs.2,18,070/- in addition to what has been awarded by the Tribunal. Hence, the following: ORDER (i) Appeal is allowed in part (ii) The impugned judgment and award dated 16.11.2016 passed in MVC No.827/2015 by the Tribunal is modified by enhancing the compensation of Rs.2,18,070/- together with interest at 6% p.a. from the date of petition till the date of deposit. (iii) Insurance company is directed to deposit the compensation amount including the enhanced compensation together with interest within a period of 4 weeks from the date of receipt of the copy of this order. (iv) The other conditions and apportionment remain unaltered.