IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY M.F.A. No.4960/2016 [MV] BETWEEN :
Smt. G. Radha @ G. Radhamma, W/o Sri. A.B. Prashanth Kumar @ Prashanth, S/o Late Anke Gowda, Aged about 33 years, R/at No.D-14, 12th Cross, 5th Main Road, Jayamahal Extension, Benglauru – 560 046.
(By Sri. Shripad V. Shastri, Adv.) AND :
The Managing Director, KSRTC, Central Office, K.H.Road/Double Road, Shanthinagar, Benglauru – 560 027.
(R.C.Owner of KSRTC Bus Bearing Reg. No.KA-10-F-170) ...Appellant …Respondent (By Sri. D. Vijay Kumar, Adv.) This M.F.A. is filed under Section 173(1) of M.V.Act against the judgment and award dated 23.02.2016 passed in MVC No.558/2015 on the file of the 12th Additional Small Causes Judge, Member, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This M.F.A. coming on for Admission, this day, the Court delivered the following:
J U D G M E N T The appellant – claimant has filed this appeal seeking enhancement of compensation against the Judgment and Award dated 23.02.2016 passed in MVC No.558/2015 by the XII Additional Small Causes Judge and Member, MACT, Bengaluru, wherein the Tribunal has awarded compensation of Rs.9,82,741/- with interest at the rate of 8% p.a. Accident is of the year 2014.
2. It is the case of the appellant that, on 25.12.2014 at about 7.30 a.m., she was proceeding in a Car bearing Reg.No.KA-04-C-9197 from Bengaluru to Dharmasthala on Kokkada Dharmasthala Road and the driver of the Car was driving the same on the left side of the road slowly and cautiously, when they reached near Pudavettu cross, Dharmasthala, the driver of the KSRTC Bus bearing Reg. No.KA-10-F-170 came from opposite direction towards extreme right side i.e., wrong side and dashed against the Car. Due to the said impact, the appellant has sustained grievous injuries.
3. The appellant was examined as PW-2 and she has reiterated the contents of the claim petition to the effect that she has sustained injuries in the Motor Vehicle Accident in the year 2014 and due to the impact, she has sustained the following injuries namely:-
1. Communited fracture of left humerus 2. Fracture of both bones of right hand 3. Fracture of right acromian scapula 4. Fracture of right first metacarpal bone 4. Since, the accident was taken place at Dharmasthala on Mangaluru road, she was shifted to Mangala hospital, Mangaluru and has taken treatment as an inpatient and underwent surgeries. It is contended that she has spent a sum of Rs.7,50,000/- towards medical expenses and Rs.50,000/- towards conveyance, nourishment and attendant charges. She has further contended that prior to the accident, she was hale and healthy. She appointed a maid servant by paying an amount of Rs.8,000/- p.m. as she was getting pain over both hands, right shoulder, nasal region, oftenly getting head ache and giddiness etc.
5. PW-3 being the Orthopedic Surgeon is examined in support of the claimant to prove the injuries suffered by her. In his evidence, he has deposed that the injured/appellant has suffered the following injuries:-
1. Diffuse cerebral edema, 2. Right Hemothorax, 3. Left eye canalicular tear, orbital prolapse, 4. Right parasymphysis fracture, 5. Right acromion fracture, 6. 1st Metacarpal base fracture right hand, 7. Fracture both bones right forearm, 8. Fracture shaft of left humerus.
6. PW.3 in his evidence has deposed that the injured has suffered permanent functional disability at 24% to the whole body and she is supposed to undergo surgery for removal of implants. Claimant also examined PW-5 –Assistant Professor at Department of Forensic Medicine, who has deposed that he had treated the claimant personally.
7. In addition to the evidence of the doctors, claimant has marked wound certificate as Ex.P.23 which shows that she has suffered ten injuries, out of which injury Nos.1, 3, 4, 5, 7, 8 and 9 are grievous in nature and the rest of the injuries are simple in nature. She has taken treatment as an inpatient for about 24 days as per Ex.P.24 – discharge summary.
8. Learned counsel for the appellant – claimant contended that considering the case of the respective parties and going through the oral and documentary evidences, the Tribunal has awarded a sum of Rs.60,000/- under the head “Pain and Sufferings”, which is on the lower side. The Doctor was examined as PW-3 who has deposed that claimant suffered eight injuries and the wound certificate which is marked as Ex.P.23 discloses that claimant has suffered ten injuries.
9. He further submits that the claimant has taken treatment for about 24 days as an inpatient and has also undergone number of surgeries and hence, the Tribunal itself has considered the expenses incurred towards medicines and awarded a compensation of Rs.7,05,501/- under the head “Medical expenses”. The Tribunal has awarded a compensation of Rs.24,000/- under the head “Loss of income during laid up period” by assessing the income of the claimant at Rs.6,000/-
p.m. Though the claimant is a house wife, her service to the family, attendance to her husband and children is very important. Hence, the income of claimant should be taken suitably. In her evidence, she has stated that due to accidental injuries, she became permanently disabled and was not able to work independently as she was working prior to the accident. Thereby, she has engaged the services of maid servant by paying her a sum of Rs.8,000/- per month. Considering the same, the Tribunal has awarded a sum of Rs.40,000/- under the head “Loss of amenities, conveyance, food and nourishment and attendant charges” as she has to forgo certain amenities in her life.
10. He further contends that the claimant is permanent resident of Bengaluru and she has met with an accident when she was on the way to Dharmasthala and Mangaluru. Therefore, she was shifted to Mangala hospital, Mangaluru and took treatment as an inpatient and underwent three surgeries. As per the doctor, the claimant has to undergo future surgery for removal of implants. The Tribunal has awarded Rs.15,000/- towards future medical expenses and Rs.1,38,240/- towards loss of future earning, which are on the lower side. Hence, he prays that the appeal may be allowed by awarding reasonable compensation.
11. Learned counsel for the respondent – Corporation submits that the claim made by the appellant itself is at an exaggerated stage. The claimant has not taken treatment at Bengaluru but she has taken treatment at Mangaluru and medical expenses incurred by the claimant is Rs.7,05,501/-, which itself requires to be reduced as it is a huge amount. It is also admitted by the claimant that she is a housewife and the notional income assessed by the tribunal at Rs.6,000/- p.m. for the accident which occurred in the year 2014, is not correct from any angle and the same needs to be reduced.
12. Heard the learned counsel for appellant and the respondent - Corporation.
13. The occurrence of the accident and the injuries are not in dispute. Evidence of doctors – PWs.3 and 5 who have deposed that injured/claimant has suffered grievous injuries, she has taken treatment for 24 days as an inpatient, suffered disability to an extent of 24% to the whole body and the wound certificate discloses 10 injuries suffered by the claimant. Considering these grievous injuries and other simple injuries and by considering the fact that she has taken treatment for about 24 days as an inpatient and evidence of PWs 3 and 5, the Tribunal awarded a sum of Rs.60,000/- under the head of “Pain and sufferings” is on the lower side. Hence, it is appropriate to enhance by Rs.40,000/-, in total a sum of Rs.1,00,000/- is awarded under the head of “Pain and sufferings”.
14. The Tribunal has awarded Rs.40,000/- towards loss of amenities and incidental charges. As per the materials available on record, the claimant being the resident of Bengaluru was treated at Mangaluru because the accident occurred in Mangaluru. She might have spent huge amount towards transportation, accommodation, food and nourishment and might have forgone amenities in her life. Taking into consideration, the compensation amount of Rs.40,000/- awarded by the Tribunal under the head of “loss of amenities” which is on the lower side, it would meet the ends of justice if another Rs.40,000/- is awarded. Hence, the total compensation towards loss of amenities and incidental charges would be Rs.80,000/-.
15. The Tribunal has awarded a sum of Rs.7,05,501/- towards medical expenses. The compensation awarded by the Tribunal seems to be just and proper and does not call for any interference. Hence, the compensation awarded by the Tribunal towards medical expenses shall be retained.
16. The claimant had taken treatment as inpatient for 24 days having sustained following injuries:-
1. Diffuse cerebral edema 2. Right Hemothorax 3. Left eye canalicular tear, orbital prolapse 4. Right parasymphysis fracture 5. Right acromion fracture 6. 1st Metacarpal base fracture right hand 7. Fracture both bones right forearm 8. Fracture shaft of left humerus She might have also taken follow up treatment and bed rest for about six months and the Tribunal ought to have considered the same. In this regard, the Hon’ble Supreme Court has stated that the services of housewife towards her family is also vital and hence, Rs.6,000/- p.m. assessed by the Tribunal is appropriate. Hence, Rs.36,000/- is awarded towards “Loss of income during laid up period” against Rs.24,000/- awarded by the Tribunal.
17. Taking into consideration the injuries suffered by the claimant and three surgeries undergone by her and that as per the deposition of PW-3, who is Orthopedic Surgeon, has stated that the claimant has to undergo one more surgery for removal of implants in future which may cost Rs.50,000/- has to be considered and Rs.15,000/- awarded by the Tribunal towards “Future medical expenses” is on the lower side. Hence, a sum of Rs.50,000/- is awarded under the head “Future medical expenses” as against Rs.15,000/- which would meet the ends of justice.
18. The Tribunal has awarded a sum of Rs.1,38,240/- under the head of “Loss of future earning” by assessing the disability to the whole body to the extent of 12%. As per the evidence of PW-2 – Orthopedic surgeon, the appellant has suffered whole body disability at 22%. By considering the oral and documentary evidence to assess the whole body disability, the whole body disability can be taken to the extent of 15%. Hence, the compensation towards “Loss of future earning” works out to Rs.1,72,800/- (Rs.6,000 x 12 x 16 x 15/100) and the same is awarded as against Rs.1,38,240/- awarded by the Tribunal.
19. Accordingly, the appeal is allowed in part.
The claimant is entitled for an enhanced compensation of Rs.1,61,560/- in addition to the compensation awarded by the Tribunal. The enhanced compensation amount shall carry interest at 6% p.a. from the date of petition till the date of deposit.
20. The respondent – KSRTC is directed to deposit the enhanced compensation forthwith.
Sd/- JUDGE MH/-