IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL No.10876/2011 (MV) BETWEEN:
SRI M.SHIVALINGAIAH S/O LATE MUNINANJAIAH AGED ABOUT 56 YEARS OCC: SENIOR WATER INSPECTOR R/AT NO.726, 10TH MAIN ROAD 9TH BLOCK, 2ND STAGE (BDA LAYOUT) NAGARABHAVI, BANGALORE-72 ... APPELLANT (BY SRI: D S SRIDHAR, ADV) AND:
1. BANGALORE ONIYAVARA SEVA COOTA BOSCO, D-23, 1ST CROSS MAGADI ROAD, BANGALORE-23 2. THE MANAGER ORIENTAL INSURANCE COMPANY LTD., NO.1188, 1ST FLOOR, 26TH MAIN RAGIGUDDA TEMPLE MAIN ROAD 9TH BLOCK, JAYANAGAR BANGALORE-69 …RESPONDENTS (BY SRI:N C MOHAN, ADV FOR R1, SRI:C R RAVISHANKAR, ADV FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.07.2011 PASSED IN MVC NO.5172/2009 ON THE FILE OF VI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
J U D G M E N T Though the appeal is listed for admission, with the consent of learned Counsel appearing for both the parties, the appeal is heard, admitted and disposed of finally.
2. The claimant aggrieved by the quantum of compensation awarded by the Tribunal has preferred this appeal seeking for enhancement of compensation.
3. Heard Sri.D.S.Sridhar, learned counsel appearing for the appellant-claimant and Sri.N.C.Mohan, learned counsel appearing for respondent No.1 and Sri.C.R.Ravishankar, learned counsel appearing for respondent No.2-insurer. Perused the judgment and award passed by the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 10.05.2009 due to rash and negligent driving of the offending jeep bearing registration No.KA-02-P-5265 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether the compensation of Rs.3,13,000/- with interest at 6% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. As per the wound certificate - Ex.P28, the claimant had sustained open supracondylar fracture right femur with bone loss, closed type V fracture right tibial condyle. The injuries sustained and treatment under went by the claimant are evident from the wound certificate - Ex.P28, four discharge summaries – Ex.P30, 26 x-rays and 2 reports - Ex.P33 and supported by oral evidence of the claimant and three doctors who were examined as PWs.5 to 7 respectively.
6. PW6 – Dr.B K Sudhakanth has stated in his evidence that he is working as Orthopedic surgeon at Hosmat Hospital and has stated that the claimant had sustained the aforesaid fractures. He has further stated that he has treated the claimant at Hosmat Hospital on four occasions and recently, he has examined the claimant on 23.01.2010. At that time, the claimant had complained constant pain over right hip, thigh knee, radiating to leg and foot, cannot bear full weight on right leg and he is unable to bear 50% weight, cannot walk independently and use support for walking, movements of right hip, knee and ankle are restricted and painful, cannot bend the right knee and finds difficulty in sitting, squatting for short period.
7. PW7 - Dr.Shankar has stated in his evidence that he is working as Orthopedic Surgeon at BGS Hospital, Bengaluru and has stated that the claimant was admitted in their hospital on 15.11.2010 with diagnosis of Chronic Osteomyelitis of right femur and tibia with implants in situ with septicemia, severe hypoproteinemia with Hypoalburninemia, CKD Stage V (CGN-FSGS), antibody induced colitis – clostridium difficile, urinary tract infection. He has further stated that the claimant underwent implant removal and knee amputation of right lower limb as life saving procedure on 08.12.2010. He was discharged on 21.12.2010. He has further stated that he has recently examined the claimant on 18.02.2011 and found that the claimant has moderate restriction of movement in the right hip joint with pain. X-ray of the right lower limb reveals about the above knee amputated stump with no evidence of osteomyelitis.
8. Considering the nature of injuries, particularly, amputation of right leg above knee and other injuries sustained by the claimant a sum of Rs.1,50,000/- is awarded towards pain and suffering as against Rs.1,00,000/- awarded by the Tribunal. The claimant has produced medical bills for a sum of Rs.72,958/-, which discloses that the claimant has spent the said amount towards medical expenses. Therefore, a sum of Rs.73,000/- is awarded towards medical expenses. It is evident from the records that the claimant was treated as inpatient on 4 occasions at Hosmat Hospital and on one occasion at BGS Hospital. Therefore, Rs.30,000/- is awarded towards incidental expenses i.e, food, nourishment and attendant charges as against Rs.5,000/- awarded by the Tribunal. The claimant claims to have been earning Rs.35,172/- by working as Inspector at BWSSB Bengaluru. But, he has not produced documents regarding loss of salary during the period of treatment and rest. Therefore, it is just and proper to award Rs.10,500/- towards loss of income during laid up period.
9. It is not the case of claimant that after sustaining the aforesaid injuries, he discontinued his employment. Therefore, awarding compensation under the head loss of future income does not arise. Nevertheless, nature of injuries sustained by the claimant would suggest that he may have to suffer certain amount of discomfort and unhappiness in his future life. Therefore, a sum of Rs.1,00,000/- is awarded towards permanent disability as against Rs.35,000/- awarded by the Tribunal and Rs.1,00,000/- is awarded towards loss of amenities in life as against Rs.50,000/- awarded by the Tribunal. The claimant for his routine work i.e, to go to his employment and return to his place and to do his routine work has to depend upon for an attendant for the rest of his life. Therefore, it is just and proper to award a sum of Rs.1,00,000/- towards future attendant charges.
10. Thus, the claimant is entitled for the following compensation:-
6 Loss of permanent disability 1,50,000/-
7 Future medical expenses and attendant charges 1,00,000/-
11. Accordingly, the appeal is allowed-in-part.
The judgment and award dated 25.07.2011 in MVC No.5172/2009 passed by the VI Additional Judge, Court of Small Causes and MACT, Bengaluru, stands modified. The claimant is entitled for an additional compensation of Rs.3,50,500/- with interest at 6% p.a. from the date of claim petition till the date of realization, however, excluding the interest for Rs.1,00,000/- awarded towards future attendant charges.
12. 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, however, excluding the interest on Rs.1,00,000/- awarded towards future attendant charges. Out of the additional compensation, 50% 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 with a right of option to withdraw interest periodically. Remaining 50% amount with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit.
13. The Tribunal while releasing remaining 50% of the amount is also directed to issue the fixed deposit slips, 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 on maturity without insisting for any further order from the Tribunal.
No order as to costs.
SD/- JUDGE *bgn/-