IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.JusticeB.M.Shyam Prasad Miscellaneous first Appeal No. 8293 OF 2010 (MV) Between:
D DALIMURTHY SON OF D. R. ADINARAYANAPPA AGED ABOUT 50 YEARS R/AT MARAVAKOTHAPALLI VILLAGE CHILAMATHUR MANDAL, HINDUPUR TALUK, ANANDHAPURA DISTRICT, ANDHRA PRADESH.
... APPELLANT (BY SMT. SUGUNA R. REDDY, ADVOCATE) And:
1. SRI M. V. SRIRAMA SON OF LATE VENKATASWAMY AGED ABOUT 58 YEARS R/AT MINDIGAL VILLAGE AND POST MUGANAHALLI HOBLI, CHINTHAMANI TALUK KOLAR DISTRICT.
2. THE MANAGER NEW INDIA ASSURANCE CO LTD MAHALAKSHMI CHAMBERS 2ND FLOOR, M G ROAD BENGALURU – 560 001.
... RESPONDENTS (BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R2;
VIDE ORDER DATED 21.10.2013 NOTICE TO R1 IS DISPESNED WITH) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.01.2010 PASSED IN MVC NO. 3346/2007 ON THE FILE OF THE IX ADDITIONAL JUDGE, MEMBER MACT-7, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant-claimant, the learned counsel for the insurer, and perused the impugned common judgment and award dated 02.01.2010 the claim petitions in M.V.C.No.3346/2007 and M.V.C.No.3345/2017 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (SCCH- 7) (for short, the tribunal). The present appeal is against the judgment and award in M.V.C.No.3346/2007. The tribunal has granted a total sum of Rs.3,37,800/- as compensation to the appellant-claimant along with interest at the rate of 6% per annum. The tribunal has awarded this compensation under the following heads:
1 Pain and Suffering Rs.70,000/-
2 Medical Expenses Rs.1,50,000/-
3 Loss of earning capacity 4000 x 12 x 11 x 10% Rs.52,800/-
4 Laid up period Rs.20,000/-
5 Loss of amenities Rs.20,000/-
6 Conveyance and Nourishment Rs.10,000/-
7 Future treatment Rs.10,000/-
8 Attendant Charges Rs.5,000/-
Total Rs.3,37,800/- Rounded off Rs.3,37,800/-
2. The learned counsel for the appellant-claimant and the Insurer submits that there is no dispute that the appellant-claimant (referred to as “the claimant”) with an accident on 16.10.2006 when he was riding his motorcycle along with a pillion rider on the outskirts of Bagepalli near Pathapalya village. The accident was because of the rash and negligent driving by tempo bearing registration KA-07- 4908 (for short, ‘the offending vehicle’) which is insured with the Insurer. The claimant suffered multiple injuries i.e., injuries in the pelvic area, upper and lower limbs and left clavicle. The Insurer’s liability to pay just and reasonable compensation is also not contested. The only controversy is about the enhancement in compensation.
3. The learned counsel for the appellant seeks for enhancement of the compensation on the following grounds:-
Firstly, the compensation awarded by the tribunal towards pain and suffering is Rs.70,000/-. However, it is undisputed that the claimant has suffered four serious fracture injuries as aforesaid, and was hospitalized for over 100 days, on five occasions. He has to under go surgeries for both internal and external fixations and he has been under treatment/follow ups treatment for over one year. As such, a sum of Rs.70,000/- would not be just and reasonable compensation towards pain and suffering.
Secondly, the claimant has examined doctors as PW3 and PW5. The Medical Officer, Baptist Hospital, Bengaluru (PW 3) has spoken about the injuries suffered, the procedure undergone by the claimant and the follow up treatment taken by the claimant with Baptist Hospital, Bengaluru. The Orthopedic Surgeon and professor of Orthopedic (PW 6) has spoken of the injuries suffered by the claimant and the claimant visiting him for follow up treatment for over a period of one year. The doctor has also assessed the whole body disability at 33%. The tribunal has assessed functional disability only at 10% despite the doctor’s evidence that the claimant suffers “Pubic symphysis with diastasis”. Further, the doctor has spoken about the irregular thickening of right upper end of tibia, flexion of right knee joint only by 50 degree and shortening of right lower limb by 2.5 cm compared to left lower limb. This evidence speaks about residuary disability which will have to be carried by the injured-claimant, who was aged 51 years at the time of the accident, throughout his entire life. Therefore, the claimant is entitled for a higher sum than Rs.20,000/- awarded by the tribunal towards loss of amenities.
Thirdly, the doctor has stated that the claimant will have to undergo future surgery for removal of implants- internal fixations, and that such surgery would cost in the least for a sum of Rs.25,000/-. However, the tribunal has awarded only a sum of Rs.10,000/-. Further, the tribunal has awarded a sum of Rs.10,000/- towards conveyance charges and a sum of Rs.5,000/- towards attendant charges. This is despite the fact that the claimant has produced receipts to show that he had hired taxi repeatedly to visit the doctors for treatment/ follow up treatment. There will have to be enhancement in the compensation awarded towards conveyance and attendant charges as well as the amount towards future medical expenses.
Lastly, the learned counsel for the claimant submits that the tribunal has taken the loss of functional disability at 10% despite the undisputed fact that the claimant, who was working as an insurance agent and was aged 51 years at the time of the accident, has lost his business as an insurance agent because of the injuries suffered and that he has permanent disability at 36% of the whole body. The tribunal has been very conservative in assessing permanent disability at 10%, and therefore there is no just and reasonable compensation under this head.
4. The learned counsel for the insurer on the other hand contended that the tribunal has granted just and appropriate compensation in the facts and circumstances of the case. Typically towards pain and suffering a sum of Rs.40,000/- is awarded for the first fracture injury and sum of Rs.10,000/- for each of the next fracture injuries. Therefore, a sum of Rs.70,000/- towards pain and suffering is just and reasonable. The learned counsel also contended that though there is no specific evidence of the actual income of the injured-claimant, who asserted that he was earning Rs.20,000/- per month and as per the schedule evolved for settlement in Lok-Adalath notional income is taken as Rs.3750/- per month when there is no proof of actual income in the case of the accidents in the year 2006, the tribunal has taken a sum of Rs.4,000/- per month. Therefore, the tribunal has taken care to ensure that there is just and reasonable compensation.
5. In the light of the rival submission, the only question that arise for consideration is whether the injured- claimant is entitled for enhanced compensation because of any of the grounds urged by the learned counsel for the claimant.
6. The undisputed evidence is that the injured- claimant suffered fracture of the pelvic bone, fracture of both upper and lower limbs and fracture of left clavicle and he had to undergo multiple surgeries for both internal and external fixators. He was hospitalized on five different occasions and he was under continuous treatment/follow up treatment for a period of two years. The claimant, even as on the date of the cross examination of PW6 (the doctor whom he was consulting) had to undergo a further surgery for removal of internal fixators. The pain and agony of the multiple fractures and continuous treatment/follow up treatment for a period of two years involving surgeries, can’t be assessed as per the norm evolved to decide on the compensation for multiple fractures that may not be serious and debilitating particular amount for the first fracture and a sum of Rs.10,000/- for each of the next fractures. Therefore, this Court is of the considered view that the injured-claimant would be entitled for additional sum of Rs.30,000/- towards pain and suffering.
7. The undisputed evidence is that the injured- claimant was aged 51 years as on the date of the accident. He has residuary injuries in the pelvic area as well as in his upper and lower limb. The doctor (PW6) has stated that there is displacement of right pelvis by 3 CM and “Pubic Symphysis with Diastasis”, and flexion of right knee joint is restricted. He has also spoken about shortening of right lower limb by two sides. These injuries would definitely harm the earning capacity and therefore, result in a substantial loss of functioning ability. On appreciation of the medical evidence, and the other undisputed evidence on record, this Court is of the view that assessment of 25% of functional disability would be just and appropriate.
8. Insofar as the enhancement in the compensation towards future medical expenses, travel expenses and attendant expenses, this Court, for the reasons already discussed and the evidence on record, is of the view that an additional sums of Rs.15,000/- towards future medical expenses, of Rs.10,000/- towards travel expenses and Rs.5,000/- towards attendant expenses would be just and reasonable. For the foregoing, reason, it is concluded that the injured-claimant will be entitled for the enhancement of the compensation under the following heads:-
As such, the appeal is allowed in part, the impugned judgement and award in M.V.C.No.3346/2007 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (SCCH-7) is modified granting to the appellant-claimant enhanced compensation in a sum of Rs.1,39,200/- (Rupees One Lakh Thirty Nine Thousand Two Hundred only) along with interest at the rate of 6% per annum.
However, the claimant will not be entitled for the interest of the delay period of 107 days. The insurance company shall deposit the enhanced compensation amount and interest excluding the interest for the above said delay period of 107 days. The insurance company shall deposit the enhanced compensation with such interest within six weeks from the date of receipt of certified copy of this judgment.
Sd/- Judge KPS