M.F.A. NO.7410/2010 (MVC). BETWEEN. RAVI S/O APPU KUTTAN. AGED
ABOUT 47 YEARS. R/AT NO.523, KEMPEGOWDANAGAR. PEENYA
DASARAHALLI.
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 31ST DAY OF JULY 2012 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.7410/2010 (MVC)
BETWEEN RAVI S/O APPU KUTTAN AGED ABOUT 47 YEARS R/AT NO.523, KEMPEGOWDANAGAR PEENYA DASARAHALLI NEAR MAHESHWARI TEMPLE BANGALORE ... APPELLANT (BY SRI.MAHESH SHETTY, ADVOCATE) AND 1.
UNITED INDIA INSURANCE CO LTD DIVISIONAL OFFICE NO.2, DR SHANKARAN ROAD NAMAKKAL-637001
2.
THUFAIL AHAMED B A S/O BASHEER AHAMED MAJOR R/O NO.112A, THURAIYUR ROAD
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NAMAKKAL ... RESPONDENT(S) (BY SRI. A.M VENKATESH, ADVOCATE FOR R.1)) (NOTICE TO RESPONDENT NO.2 DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.04.2010 PASSED IN MVC NO.5543/2008 ON THE FILE OF XXI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This
appeal
is
by
the
claimant
seeking
enhancement of compensation awarded by the Tribunal.
2.
Heard, the appeal is admitted and with the
consent of the learned counsel appearing for the parties, it is taken up for final disposal.
3
3.
For the sake of convenience, the parties are
referred to as they are referred to in the claim petition before the Tribunal.
4.
As there is no dispute regarding injuries
sustained by the claimant in a road traffic accident occurred on 29.01.2008 due to rash and negligent driving of the lorry bearing registration No.TN-28-P7886 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether awarded
by
quantum the
of
Tribunal
compensation is
just
and
reasonable or does it call for enhancement?”
5.
After hearing the learned counsel appearing
for the parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is
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on the lower side and hence it is required to be enhanced.
6.
As per Ex.P.5, the medical certificate, the
claimant has sustained the following injuries:a)
Fracture of shaft right femur
b)
Fracture of right fibula at L/3
c)
Fracture of medical maccfious right ankle (Bimalleolor fracture)
The injuries sustained by the claimant is evident from the
Ex.P.6-discharge
summary,
Ex.P7-Investigation
Report, Ex.P9- medical bills, Ex.P.10-prescriptions, Ex.P13
-Wound
Ex.P14-Radiologist
Certificate reports,
and
admission
Ex.P15-X-rays
profile, and
supported by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, Dr.P.Nagendra has deposed that, the claimant has suffered disability of 45% to the right lower limb and 15% to the whole body.
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7.
Considering the nature of injuries, a sum of
Rs.60,000/- awarded by the Tribunal towards ‘pain and suffering’ is just and proper and there is no scope for enhancement of compensation under this head.
8.
As Rs.1,00,000/- awarded by the Tribunal
towards ‘medical and incidental expenses’ such as conveyance, nourishment and attendant charges is based on the medical bills produced by the claimant and duration of treatment undergone by him as inpateint for 7 days in Green View Hospital, Bangalore, it is just and proper and there is no scope for enhancement under these heads.
9.
The learned counsel for the claimant submits
that, the claimant was working as a lorry driver in Ghatage Patil Transport Company getting a monthly salary of Rs.10,000/- and after sustaining major
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fractures, he is not in a position to continue his job as a driver and therefore, he requests the Court to award just and reasonable compensation under the head loss of future income.
10.
Whereas
the
learned
counsel
for
the
Insurance Company submits that, the claimant except contending that, he was getting a salary of Rs.10,000/per month by working as lorry Driver and producing a salary certificate at Ex.P.8, neither examined the author of the certificate nor his employer. Tribunal
is
justified
in
assessing
Therefore, the his
income
at
Rs.5,000/- and awarding Rs.30,000/- towards loss of income during laid up period.
11.
The police record shows that, the claimant
sustained injuries when he was driving the lorry bearing Registration No.KA-01-6991 belonged to Ghatage Patil
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Transport Company from Hosur to Peenya on account of rash and negligent driving of the offending vehicle bearing Registration No.TN-28-P-7886 and the said fact shows
that
the
claimant
was
a
lorry
driver
by
profession. In the absence of non-examination of the author of the salary certificate-Ex.P.8 and his employer by the claimant considering his profession as lorry driver, his income is assessed at Rs.6,000/- per month as against Rs.5,000/- assessed by the Tribunal.
The
nature of injuries suggest that the claimant must have been under rest and treatment for a period of 5 months and therefore a sum of Rs.30,000/- is awarded towards ‘loss of income during laid up period’.
12.
Considering the disability stated by the
doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of
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Rs.30,000/- is awarded towards ‘loss of amenities’ as against Rs.20,000/- awarded by the Tribunal.
13.
The claimant is aged about 45 years at the
time of accident and multiplier applicable to his age group is 14. The claimant after sustaining the aforesaid major fractures it cannot be said that he can continue his profession as lorry Driver with the same strength and energy with which he was doing earlier and naturally there will be substantial reduction in his future earnings. Further, the doctor has assessed 45% disability to right lower limb and 15% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.1,51,200/- (6000 x 12 x 14 x 15/100) and it is awarded as against Rs.1,00,800/- awarded by the Tribunal.
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14.
Rs.20,000/-
awarded
by
the
Tribunal
towards ‘future medical expenses’ is just and proper and there is no scope for enhancement of compensation under this head.
15.
Thus,
the
claimant
is
entitled
for
the
following compensation:HEADS
Rs.
a)
Pain and suffering
-
60,000
b)
-
1,00,000
-
30,000
d)
Medical expenses and Incidental expenses Loss of income during laid up period of claimant Loss of amenities
-
30,000
e)
Future Medical expenses
-
20,000
f)
Loss of future income
-
1,51,200
TOTAL
-
3,91,200
LESS: Compensation awarded by the Tribunal BALANCE
-
3,30,800
-
60,400
c)
16.
Accordingly, the appeal is allowed in part.
The judgment and award passed by the Tribunal is
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modified to the extent stated herein above. The claimant is entitled for a total compensation of Rs.3,91.200/- as against Rs.3,30,800/- awarded by the Tribunal with interest at 6% p.a. on the additional compensation of Rs.60,400/- from the date of claim petition till the date of realisation.
17.
The
Insurance
Company
is
directed
to
deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment.
18.
Out of the additional compensation, 50% of
the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years renewable from time to time and with a right
of
option
to
withdraw
interest
periodically.
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Remaining
amount
with
proportionate
interest
ordered to be released in favour of the claimant
19.
No order as to costs.
Sd/JUDGE
KSR
is
