IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2016 :PRESENT:
THE HON’BLE MR. JUSTICE N.K. PATIL AND THE HON’BLE MRS. JUSTICE RATHNAKALA M.F.A.No. 34 of 2016 (MV) Between:
Venkatesh, S/o. Kadirappa, Aged about 38 years, R/at. NO.74, I Ward, Bagepalli Town, Bagepalli Taluk-561 207, Chikkaballapur District.
….Appellant (By Sri. Adinarayan, for A.N.N. Associates) And:
1. National Insurance Co. Ltd., Regional Office, At No.19/4, Saranchal Arcade, I Floor, Dinnur Main Road, R.T. Nagar, Bangalore-32.
2. S. Mohan, S/o. Subramanyam, R/at. No.10, S.S.S. Building, I Main, A.V. Road, Chamarajpet, Bangalore-560 018.
3. M.L. Padmavathamma, W/o. B.N. Srinivas, Aged about 49 years, R/at. Karthik Transport, DVG Main Road, Bagepalli Town-561 207, Chikkaballapur District.
4. The New India Assurance Co. Ltd., At No.19/4, Saranchal Arcade, I Floor, Dinnur Main Road, R.T. Nagar, Bangalore-560 032.
….Respondents (By Sri. A.M. Venkatesh, Advocate for R1; Sri. K. Suryanarayana Rao, Advocate for R4;
Notice to R2 & R3 dispensed with v/o. dated 25/01/2016) ******** This MFA is filed U/s. 173(1) of MV Act against the Judgment and Award dated: 09/11/2015 passed in MVC No.41/2012, on the file of the Additional Senior Civil Judge & JMFC., Chickballapur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This M.F.A. coming on for Admission this day, N.K. PATIL J, delivered the following:
:J U D G M E N T:
This is a claimant’s appeal for enhancement of compensation against the impugned judgment and award dated 09/11/2015 passed in MVC No.41/2012, by the Additional Senior Civil Judge & JMFC, Chickballapur, (hereinafter referred to as ‘ Tribunal’ for short), on the ground that a sum of `14,34,032/- awarded under different heads with interest at 6% p.a., from the date of petition till the date of deposit, as against the claim of `50,00,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate.
2. In brief, the facts of the case are:
The appellant claims to be aged about 34 years at the time of the accident. He was hale and healthy prior to the accident and working as Driver of a Lorry in Karthik Transport, DVG Road, Bagepalli and earning `13,500/- per month. That on 11.7.2012 at about 11.50 p.m. appellant was driving the Lorry bearing Reg.No.KA.40.7947 from APMC yard, Chintamani town to Raygad at Chattisghad State in NH.44 near Virupakshareddy Petrol Bunk at Peddavaduguru Mandalam, Ananthapur District, driver of the another lorry bearing Reg.No.KA.01.D.4707 drove the same in a rash and negligent manner and tried to take U turn without giving any signal and therefore, the lorry which the appellant was driving dashed to the said Lorry and caused the accident. Due to which, deceased sustained grievous injuries. Immediately, he was shifted to M.S.Ramaiah Hospital, Bangalore where he took treatment as inpatient from 12.7.2012 to 16.8.2012 and as he has sustained grievous injuries to his legs, his both legs were amputated and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment.
3. It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant, he has suffered 100% permanent functional disability. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.
4. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum `14,34,032/- as compensation under different heads with interest at 6% p.a., from the date of petition till the date of deposit directing respondent Nos.1 and 4, the insurers to indemnify the award amount in the ratio of 50% each.
5. Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal.
6. We have heard learned counsel appearing for appellant and learned counsel appearing for Respondent Nos. 1 and 4.
7. The submission of learned counsel Sri.
Adinarayan, appearing for the appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation under all the heads and what is awarded is inadequate and it is liable to be enhanced reasonably. Further he submits that the Tribunal has erred in not assessing the income of the appellant reasonably and what is assessed is on the lower side and is liable to be re-assessed reasonably, on the ground that, he is a driver of a heavy vehicle viz., Lorry by profession. In the accident, appellant has suffered grievous injuries to his both legs and underwent amputation of both legs above knee and due to which he cannot work as a driver any more and suffered 100% functional disability. On account of the injuries, he has taken treatment as inpatient for 30 days and thereafter, he has taken bed rest and follow up treatment for more than 6 months. During the said period, he underwent lot of pain and agony, spent considerable amount towards conveyance and other expenses. Discomforts and unhappiness persists through out his life and it would affect his earning capacity and he has to depend upon others to do his day today work it also affects his marital life. Further, he submits that, the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side and the same is liable to be enhanced in the light of the judgment of the Apex Court and this Court atleast between 9 to 10% p.a.. Therefore, he submitted that the impugned judgment and award is liable to be modified.
8. Per contra, learned counsel Sri. A.M.Venkatesh and Sri.K.Suryanarayana Rao, appearing for respondent Nos. 1 and 4, inter- alia, sought to substantiate that, the Tribunal, after due appreciation of the oral and documentary evidence available on file and taking into consideration the nature of injuries suffered by the appellant and the percentage of permanent disability, has justified in awarding reasonable compensation under all the heads and therefore, it does not call for interference.
9. After hearing the learned counsel appearing for both the parties and after perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the quantum of compensation awarded by the Tribunal is just and reasonable?
10. In the accident that occurred on 11.7.2012, appellant has sustained grievous injuries to both legs as per Ex.P2-Wound certificate. He took treatment as inpatient for 30 days, underwent amputation to his both legs and suffered 100% functional disability. The Tribunal has justified in assessing the disability at 100% and we accept the same. Further, the Tribunal has assessed the income of the appellant at `5,000/- per month, which is on the lower side and it needs to be re-assessed. It is the case of the appellant that, appellant was aged about 34 years, driver of a heavy vehicle by profession and on account of amputation of both legs, he cannot work as a driver any more. Having regard to the age, occupation and the year of accident, if we re-assess the income of the appellant at `8,000/- per month instead of `6,750/- per month as assessed by the Tribunal, it would meet the ends of justice and accordingly, it is assessed.
11. As rightly pointed out by the learned counsel appearing for appellant, the Tribunal has erred in not awarding reasonable compensation towards injury pain and sufferings, towards loss of amenities, discomforts and unhappiness and towards loss of future earnings and therefore, it needs to be awarded reasonably. On account of the injuries sustained by the appellant, he has taken treatment as inpatient for 30 days, underwent amputation to his both legs. During the period of treatment, he might have undergone lots of pain and agony and suffered 100% functional disability. It is permanent in nature and he has to suffer this disability through out his life and it would affect his working capacity. The proper multiplier applicable would be ‘16’ in the light of the judgment of the Apex Court in Sarla Verma’s case instead of ‘14’ adopted by the Tribunal. Taking all these aspects into consideration, we award a sum of `2,00,000/- towards injury, pain and suffering as against `50,000/-, `2,00,000/- towards loss of amenities, discomforts and unhappiness as against `50,000/-, `15,36,000/- (`8,000 x 12 x 16 x 100%) towards loss of future earnings as against `12,15,000/-.
12. However, the Tribunal has justified in awarding a sum of `52,032/- towards medical expenses and `50,000/- towards conveyance, nourishing food and attendant charges, after assessing oral and documentary evidence produced by the appellant and therefore, it does not call for interference.
In all, the appellant is entitled to the total compensation of `20,38,032/- instead of `14,34,032/- and the break- up is as follows:
Towards loss of future earnings `15,36,000/-
Total `20,38,032/-
13. Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellant, 8% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2012. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.
There would be an enhancement of `6,04,000/- with interest at 9% p.a., from the date of petition till its realization.
14. Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 09/11/2015 passed in MVC No.41/2012, by the Additional Senior Civil Judge & JMFC., Chickballapur, stands modified, awarding a sum of `6,04,000/- with interest at 9% p.a., from the date of petition till its realization in addition to the compensation awarded by the Tribunal.
The respondent No.1 and respondent No.4, Insurers of both the vehicles are directed to deposit the enhanced compensation of `6,04,000/- with interest at 9% p.a., from the date of petition till the date of realization, in the ratio of 50% each, within three weeks from the date of receipt of a copy of this judgment and award.
Immediately on such deposit by the Insurers, out of the enhanced compensation of `6,04,000/-, a sum of `4,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 10 years and renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.
The remaining sum of `2,04,000/- with proportionate interest shall be released in favour of the appellant, immediately.
Draw the award, accordingly.
SD/-
JUDGE tsn* SD/- JUDGE