IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No. 504 OF 2010 Between:
SRI G. NAGARAJA SON OF GOPALAPPA AGED ABOUT 40 YEARS R/A 1ST BLOCK, BEHIND LAKSHMI MEDICAL’S, TAYALUR POST, MULBAGAL TALUK, KOLAR DISTRICT.
... APPELLANT (BY SMT. SUGUNA R. REDDY., ADVOCATE) And:
1. M. N. VENUGOPAL SON OF NARAYANAPPA MAJOR IN AGE R/A MADDERI VILLAGE KUPPAMPALYAM POST TAYALURU HOBLI, MULBAGAL TALUK, KOLAR DISTRICT.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO LTD BRANCH OFFICE NO.89/1, 2ND FLOOR, II CROSS SAMPIGE ROAD MALLESHWARAM, BANGALORE.
... RESPONDENTS (BY SRI. A.N. KRISHNASWAMY., ADVOCATE FOR R-2; NOTICE SERVED ON R-1) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.09.2009 PASED IN MVC NO. 361/2004 ON THE FILE OF III ADDITIONAL CIVIL JUDGE (SR.DN) & MACT, ITINERATING AT MULBAGAL, PARTALY ALLOWING 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 This appeal is filed by the appellant-claimant in MVC No.361/2004 on the file of the III Additional Civil Judge (Sr.Dn.) and MACT, itinerating sitting at Mulbagal (for short, ‘the Tribunal’). The appellant-claimant’s claim petition is partly allowed granting him a total sum of Rs.1,41,000/- with interest at the rate of 6% per annum from the date of petition till the date of payment. This amount of Rs.1,41,000/- is awarded under the following heads:
Pain and suffering Rs.52,000/- Medical Bills Rs.40,000/- Attendant charges Rs.4,000/-
Nourishment Rs.5,000/- Transportation charges Rs.10,000/- Loss of amenities Rs.30,000/-
Total Rs.1,41,000/-
2. The undisputed facts are that the appellant- claimant met with a road accident on 30.3.2004 when he was riding his motorcycle and was hit by a car bearing registration No.CAW-7007 insured with the respondent No.2. The appellant – claimant suffered multiple injuries. There is no dispute that the respondent No.2 – Insurer would be liable to pay just and reasonable compensation.
3. The learned counsel for the appellant - claimant argued for enhancement in the compensation contending as follows:
a) The appellant – claimant has suffered fracture of pelvic with hemi-pelvic disablement, third segmental fracture of right fibula, comminuted fracture of middle 1/3rd of right tibia and fracture of right ankle. The injuries suffered by the appellant – claimant are grievous in nature. The doctor, who is examined as PW.2, has opined that the appellant –claimant even after multiple surgical procedures for internal and external fixations, suffers from pubic symphysis diastasis with subluxation of the right sacro iliac joint, mal-union of right tibia and fibula with 20 degree of lateral angulations, and non-union of lateral malleolus in the right ankle with osteo arthritic changes. The doctor has assessed whole body disability at 55% including impotence.
b) The Tribunal has awarded a very conventional sum of Rs.52,000/- towards pain and suffering. The injuries are severe and they have a debilitating effect. Further, the appellant-claimant has had to undergo surgeries for internal and external fixation on multiple occasions. As such, the appellant – claimant would be entitled for a total sum of Rs.1,50,000/- as against the sum of Rs.52,000/-under this head.
c) The Tribunal has awarded only Rs.30,000/- under the head loss of amenities despite unimpeachable evidence as regards injuries resulting in impotency. The appellant- claimant was only aged 37 years at the time of accident, and his disability affects his conjugal right and conjugal right of his wife. Therefore, the appellant – claimant is entitled for an addition towards loss of amenities, and a sum of Rs.1,00,000/- would be appropriate under this head.
d) The appellant-claimant, who had to undergo prolonged hospitalization, has submitted medical bills; the total value of which is Rs.67,526/-. However, a sum of Rs.40,000/- is awarded. The Tribunal has also awarded consolidated sum towards attendant charges and nourishment. The appellant – claimant would be entitled for enhancement of Rs.10,000/- under each of these heads.
e) The appellant-claimant, who was working as a teacher being employed with the State Government, has filed transportation bills and also examined the person who has issued such bills. The bills are for Rs.39,400/-. The Tribunal has awarded only a sum of Rs.10,000/-. Therefore, there will have to be enhancement.
f) Lastly, the appellant – claimant would be entitled for some amount towards loss of earning capacity in view of the injuries suffered by him and a certain lump sum amount will have to be awarded under this head.
4. The respondent No.2 – Insurer fairly submitted that there is no dispute about the injury suffered or the resultant permanent disability. He seriously disputed the entitlement of any amount under the head loss of earning capacity emphasizing that the appellant – claimant is admittedly employed with the State Government as a teacher, and there is no evidence of any loss of pay or any other detriment because of the injuries suffered. Insofar as the enhancement in the compensation under the head pain and suffering and loss of amenities, the learned counsel submitted that only reasonable enhancement could be made otherwise it would result in a bonanza which is impermissible in law.
5. The question that arises for consideration in this appeal is:
“Whether the appellant – claimant is entitled for enhancement in the compensation awarded by the Tribunal on any of the ground urged by the learned counsel for the appellant – claimant representing him”.
6. The undisputed facts are that the appellant – claimant has suffered multiple fractures and he had to undergo multiple surgeries that required both the internal and external fixations. He is hospitalized for over a period of 60 days initially, and later for removal of fractures. The injuries suffered are not just to the lower limbs, but also in the pelvic area. The undisputed medical evidence on record is that there is dislocation in the pelvic region, which affects the appellant – claimant’s potency. This is apart from the mal-union and resultant restriction in his limb. This Court, under the normal circumstances, awards a sum of Rs.40,000/- for the first major fracture and the additional sum of Rs.10,000/- for each of the next grievous injuries. However, in the present case, as the claimant has suffered multiple fractures requiring multiple surgeries, this Court is of the considered view that a total sum of Rs.1,50,000/- would be just and proper towards paid and suffering as against the sum of Rs.52,000/- awarded by the tribunal.
7. The undisputed evidence is that the injuries have resulted in the appellant – claimant suffering impotence. This is serious loss of amenity in life which not only affects him, but also his spouse. Further, it is undisputed that he is working as a teacher, which would essentially involve physical movement and the injury suffered would affect him. The Tribunal has not awarded any amount towards loss of amenity. The appellant- claimant would be entitled to just and proper compensation under this head, and a sum of Rs.1,50,000/- under this head would be just and reasonable. Therefore, an additional sum of Rs.1,50,000/- is awarded. There is no serious dispute about the medical bills and the total value thereof is Rs.67,526/-. However, the Tribunal has awarded a sum of Rs.40,000/- towards medical expenses. As such, the claimant would be entitled for enhancement in a sum of Rs.27,526/-. The claimant would also be entitled for just enhancement in the compensation towards attendant and nourishment charges. The Tribunal has awarded total sum of Rs.9,000/- under these heads. This Court is of the considered view that a sum of Rs.20,000/- would be appropriate amount towards attendant and nourishment charges.
8. The Tribunal has granted a sum of Rs.10,000/- as against the transportation bills submitted for Rs.39,400/-. The Tribunal has disbelieved the transportation bills on the ground that the appellant – claimant being a Government employee, would be headquartered at his place of work and therefore, the bills for travelling from the place other than the head quarters would be unjustified and exaggerated. This assessment cannot be accepted given the nature of the injuries suffered. This Court is of the considered view that a sum of Rs.25,000/- as against the sum of Rs.10,000/- is appropriate under this head.
9. In the light of the above discussion, the compensation to the appellant –claimant is enhanced as follows:
Head Compensation in Rupees
For the foregoing reasons, the appeal is allowed in part. The judgment and decree dated 29.09.2009 in MVC No.361/2004 on the file of the III Additional Civil Judge (Sr.Dn.) and MACT, itinerating at Mulbagal, is modified granting a total compensation of Rs. 4,22,256/- that is, an enhancement in a sum of Rs. 2,81,256/-. *with interest @ 6% p.a. from the date of petition till realization. The Insurer - respondent No.2 shall deposit the enhanced compensation *Inserted Vide Court order dated 04.01.2021.
of Rs. 2,81,256/-. *with interest within six weeks from the date of receipt of certified copy of this order.
Sd/- Judge SA Ct:sr *Inserted Vide Court order dated 04.01.2021.