IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR M F A. No. 10422/2012 (MV) BETWEEN:
MR. RAGHU @ RAGUNATH S/O RAMAYYA POOJARY AGED ABOUT 28 YEARS R/AT PANJA, KOIKUDE POST HALEANGADY, MANGALORE TALUK, D.K. DISTRICT PIN – 575 018. ... APPELLANT (BY SRI. G. RAVISHANKAR SHASTRY., ADVOCATE) AND:
1. MR. MOHAMMED SALEEL S/O ABDUL SALAM AGED ABOUT 25 YEARS R/AT NO.9, TURNING POINT APARTMENT, MARNAMIKKTE JEPPU, MANGALORE – 575 004.
2. NATIONAL INSURANCE CO. LTD., 1ST FLOOR, EMJEYS COMPLEX OPP: NETHRAVATHI BUILDING MANGALORE, D.K. DISTRICT REPRESENTED BY ITS BRANCH MANAGER PIN – 575 001.
... RESPONDENTS (BY SRI. SHIVARAJ PATIL., ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER DATED:17.10.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.03.2012 PASSED IN MVC NO.1558/2010 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE & MEMBER MACT-II, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is a claimant’s appeal questioning the correctness and legality of the judgment and award dated 13.03.2012 passed by the I Additional District Judge and MACT, Dakshina Kannada, Mangalore in MVC.No.1558/2010 and has sought for enhancement.
2. I have heard the arguments of learned Advocates appearing for the parties and perused the records.
3. In a road traffic accident that occurred on 28.03.2010, appellant – claimant is said to have sustained injuries and consequential disability and as such, has filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and sought for compensation. Tribunal, after considering pleadings and evidence of the parties, has awarded a total compensation of Rs.4,05,700/- with interest @ 6% p.a. on Rs.3,85,700/- from the date of petition till date of realization under the following heads:
4. There is no dispute with regard to the accident in question and issuance of policy and same being in force as on the date of accident.
Hence, they are not delved upon in this appeal as it would be repetition of facts.
5. Learned Advocate appearing for appellant –claimant contended that compensation awarded by Tribunal under all heads are abysmally on the lower side and prays for enhancement of compensation.
6. Per contra, learned Advocate appearing for respondent-2 would contend that compensation awarded by the Tribunal is just and reasonable and prays for dismissal of the appeal.
7. Having heard the learned Advocates appearing for parties and on perusal of judgment and award passed by the Tribunal, it would indicate that in the road traffic accident that occurred on 28.03.2010, claimant had sustained grievous injuries all over the body and he has been immediately shifted to A.J.Hospital, Mangalore and was an inpatient for 10 days and underwent surgeries. As per wound certificate – Ex.P-7, claimant had sustained following injuries:
“Lacerated wound, 15 cm x 5 cm, extending from the back aspect of the scrotum through the middle line into the anus exposing both testicals with urethral rupture, grossly damaged anal and urethral sphincters along with diastasis of public symphysis and fracture of superior and inferior public rami on right side.”
Claimant – P.W.1 in his evidence has stated that after taking treatment in A.J.Hospital, Mangalore, claimant has been shifted to KMC Hospital for better treatment and he has been an inpatient for 80 days in the said hospital and has undergone surgeries and implants have been inserted for the fracture of both femur and left radius. According to Doctor – P.W.2, claimant has been treated by several Doctors for the injuries sustained by him. Tribunal has awarded a sum of Rs.60,000/- towards ‘pain and suffering’. Having regard to the nature of injuries sustained and treatment taken, compensation awarded by the Tribunal requires to be enhanced under the said head and accordingly, additional compensation of Rs.40,000/- is awarded to the claimant towards ‘pain and suffering’.
8. Taking into consideration the fact that claimant had been hospitalized for 91 days, he would have spent considerable amount towards attendant charges, food and nourishment and conveyance. Tribunal has awarded a sum of Rs.22,500/- towards attendant charges, food and nourishment and a sum of Rs.10,000/- towards conveyance, which is on the lower side. This Court is of the considered view that additional sum of Rs.23,000/- requires to be awarded under the head ‘attendant charges, food and nourishment’ and a sum of Rs.10,000/- under the head ‘conveyance’. Accordingly, it is awarded.
9. According to claimant, he was working as a Mechanic in M/s.Mandovi Motors Private Limited and was drawing a salary of Rs.5,300/- per month and due to the injuries sustained in the accident, he is unable to do any work. He has produced certificate – Ex.P-11 issued by Mandovi Motors Private Limited which would disclose that claimant was working as Washing Helper getting a monthly salary of Rs.5,121/-. Tribunal has opined that claimant has not examined his employer to prove the said fact. While computing the loss of future income, Tribunal has taken notional income of the claimant at Rs.4,000/- per month. However, Tribunal ought to have taken into consideration Ex.P-11 – certificate issued by employer of the claimant which shows that claimant was earning Rs.5,121/-. As the claimant has produced documentary evidence in proof of his income, this Court is of the considered view that income of the claimant can safely be taken at Rs.5,200/- per month, 10. Tribunal has assessed disability of the claimant at 20% to the whole body. Ex.P-12 – Disability certificate would indicate that on account of grievous injuries, claimant has difficulty in bending, lifting weight, straining, squatting and he will have pain while urinating and he may have to suffer from colostomy hernia, bleeding, diarrhea, ineffective cuterisis, necrosis of distal end, fistula formation. Doctor has also opined that claimant he may require revision colostomy, transposition to opposite side, he may have impotency and he may have psychological disturbances. Doctor - P.W.3 in his evidence has deposed that due to the injuries sustained, claimant had undergone Laparotomy plus repair of Urethral laceration and Suprapubic cystostomy plus ligation and packing of perinneal wound with transverse colostomy, Pelvic external fixator application to fractured pelvis and perineal repair was done to the claimant. The Doctor has opined that in view of the injuries sustained, claimant has suffered permanent disability. Taking into consideration nature of injuries and disability suffered by the claimant, this Court is of the considered view that Tribunal has erred in assessing disability of the claimant to the extent of 20% and disability has to be assessed at 100%.
11. Claimant being aged about 26 years, Tribunal has rightly adopted the multiplier of ‘17’. Therefore, by taking the income of the claimant at Rs.5,200/- per month and assessing the permanent disability to the extent of 100%, compensation towards ‘loss of future income’ is re-computed as under:
Rs.5,200 x 12 x 17 = Rs.10,60,800/-
Thus, claimant would be entitled to Rs.10,60,800/-. By deducting the amount already awarded by the Tribunal, claimant would be entitled to additional compensation of Rs.8,97,600/-.
12. Having regard to the medical evidence on record and the evidence of Doctor – P.W.3, claimant will have complications in leading his life and he may have to spend considerable amount towards medical expenses. Hence, this Court is of the considered view that compensation awarded by the Tribunal under the head ‘future medical expenses’ is on the lower side and it is appropriate to enhance the same by awarding a sum of Rs.20,000/-. Accordingly, it is awarded.
13. Tribunal has awarded a sum of Rs.50,000/- towards ‘loss of amenities’ which is on the lower side. Due to the injuries sustained in the accident, claimant has suffered grievous injuries and took treatment as referred to above. On account of the permanent disability suffered, he being aged 26 years, his future is lost and all comforts in life is completely lost by him. Hence, he is entitled to additional compensation of Rs.1,00,000/- towards ‘loss of amenities’.
Thus, in all, claimant would be entitled to additional compensation of Rs.10,90,600/- under the following heads:
14. For the reasons aforestated, I proceed to pass the following:
JUDGMENT (1) Appeal is allowed in part.
(2) Judgment and award dated 13.03.2012 passed by MACT and I Additional District Judge, Dakshina Kannada, Mangalore in MVC No. 1558/2010 is modified and an additional compensation of Rs.10,90,600/- is awarded which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit whichever is earlier.
(3) Order for payment and deposit as made by the Tribunal for the amount awarded by it shall hold good for the enhanced compensation also.
(4) Insurance company shall deposit the compensation amount with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE *sp