IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.NO.4658/2010 (MVC) BETWEEN MR. NAGARAJU S/O LATE MAHADEVA AGED ABOUT 21 YEARS, R/A DODDAGOWDANAPALYA, SUBRAMANYAPURA POST, UTTARAHALLI MAIN ROAD, BANGALORE-560061 ... APPELLANT (By Sri : B.KESHAVA MURTHY, ADVOCATE FOR K L K LAW ASSOCIATES) AND 1.SRI. RAMACHANDRAN NO.30, M.N.KRISHNA RAO ROAD, BASAVANAGUDI, BANGALORE-560004 REP. BY ITS MANAGER.
2.M/S THE ORIENTAL INSURANCE CO LTD IML BUILDING, NO.221, CUBBON MAIN ROAD, N.R.SQUARE, OPP. TO ULSOOR GATE POLICE STATION, NEAR BANGALORE CITY CORPORATION OFFICE, BANGALORE-560002 .. RESPONDENTS (By Sri : E S INDIRESH, ADVOCATE FOR R2) APPEAL DISMISSED AGAINST R1 V/O DTD.13.11.2015) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.02.2010 PASSED IN MVC NO.257/2009 ON THE FILE OF MEMBER, MACT, X ADDITIONAL JUDGE, BANGALORE, 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:-
J U D G M E N T
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
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 certain injuries sustained by the claimant in a road traffic accident occurred on 03.05.2008 due to rash and negligent driving of the offending car bearing registration No.KA-05-6637 by its driver and liability of the insurer of the offending car, the only point that arises for my consideration in the appeal is:
“whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for 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 on the lower side and hence it is required to be enhanced.
6. As per Ex.P6 wound certificate, the claimant has sustained the following injuries:-
a) Lacerated wound anterior lateral aspect of left leg measuring 3 x 2 cm.
b) Tenderness crepitus over the shaft of left leg.
The injuries sustained by the claimant are also evident from the Ex.P-7 discharge summary, Ex.P-8 and P-11 OPD cards, Ex.P-9 Medical bills 47 in numbers, Ex.P-10 X-ray 4 in numbers, Ex.P-12 patient record, Ex.P-13 X-ray films with reports and supported by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, Dr.Radhakrishna, Assistant Professor, Department of Orthopaedic at Kempegowda Institute of Medical Sciences, Bangalore has stated in his evidence that the claimant had sustained compound fracture of tibia and fibula, on 13.05.2008 closed reduction and internal fixation with I.M.Nail was done for the left tibia and he was discharged on 26.05.2008 with an advise to do physiotherapy to walk on the walker support and come for the follow- up. He has assessed the disability of 40% to the left lower limb and total body disability of 15%.
7. Considering the nature of injuries sustained by the claimant, Rs.25,000/- awarded by the Tribunal towards ‘pain and suffering’ is on the lower side and it deserves to be enhanced by Rs.25,000/- and therefore, a sum of Rs.50,000/- is awarded under this head.
8. As Rs.25,100/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant, there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 23 days at KIMS Hospital, Bangalore. Considering the duration of treatment, Rs.12,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.10,000/- awarded by the Tribunal.
10. The claimant claims to have been working as a driver and earning a sum of Rs.6,000/- per month, but the same is not established by producing any documents. In the absence of proof of income, considering his age as 19 years and year of accident as 2008 and avocation as daily wager his income could be assessed at Rs.4,500/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of five months and therefore a sum of Rs.22,500/- is awarded towards ‘loss of income during laid up period’ as against Rs.2,700/- awarded by the Tribunal.
11. 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 Rs.30,000/- is awarded towards ‘loss of amenities’ as against Rs.10,000/- awarded by the Tribunal.
12. The claimant is aged about 19 years at the time of accident, and the multiplier applicable to his age group is 18. His income is assessed at Rs.4,500/-
p.m. PW-2, doctor in his evidence has stated that claimant has suffered disability of 40% to the left lower limb and 15% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.1,45,800/- (4500 x 12 x 18 x 15/100) and it is awarded as against Rs.97,200/- awarded by the Tribunal.
13. Considering the nature of injuries, a sum of Rs.10,000/- is awarded towards ‘future medical expenses’.
14. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
1 Pain and sufferings 50,000=00 2 Medical Expenses 25,100=00 3 Incidental expenses 12,000=00 4 Loss of income during laid up period 22,500=00 5 Loss of amenities 30,000=00 6 Loss of future income 1,45,800=00 7 Future medical expenses 10,000=00 TOTAL 2,95,400=00 LESS: Compensation awarded by the Tribunal 1,70,000=00 BALANCE 1,25,400=00 15. Accordingly, the appeal is allowed-in-part.
The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.1,25,400/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
16. 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. From which, 70% 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 three years and with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit.
17. The Tribunal while releasing the remaining amount is also directed to issue the Fixed Deposit slip, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
18. Release of amount and Fixed Deposit slip shall be done on the same day.
19. The Tribunal is directed to transfer the remaining amount into the SB Account of the claimant by effecting RTGS if possible.
SD/- JUDGE DKB