In the High Court of Karnataka at Bengaluru
Total Page：16
File Type：pdf, Size：1020Kb
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF FEBRUARY, 2015 :BEFORE: THE HON’BLE MR. JUSTICE N.K. PATIL MISCELLANEOUS FIRST APPEAL NO.8522/2010 (MV) BETWEEN: SURENDRA KUNDER, AGED ABOUT 28 YEARS, S/O.DAYANANDA D. AMIN, R/O.MATHRUSHRI NILAYA, NITTOR VILLAGE, POT AMBALPADI, UDUPI TALUK & DISTRICT. ... APPELLANT (BY SRI S.NAVEEN KUMAR, FOR SRI PAVANA CHANDRA SHETTY.H, ADV.) AND: 1. GANGADHAR SHETTY, AGED ABOUT 47 YEARS, S/O.PUTTANNA SHETTY, R/O.PANDUBETTU MANE, AMBALPADI, UDUPI DISTRICT. 2. THE NEW INDIA ASSURANCE CO. LTD., REP: BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, SRI RAM ARCADE, 2 ND FLOOR, OPP: HEAD POST OFFICE, UDUPI. ... RESPONDENTS (BY SRI SANDESH J. CHOUTA, ADV. FOR R2 NOTICE TO R1 DISPENSED WITH V/O. DT.22/3/2013) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.08.2010 2 PASSED IN MVC NO.321/2006 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, UDUPI, 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: J U D G M E N T This appeal by the claimant is directed against the impugned judgment and award dated 18.08.2010 passed in MVC No.321/2006 on the file of the Additional Senior Civil Judge & MACT, Udupi, (hereinafter referred to as ‘Tribunal’ for short), for enhancement of compensation. 2. The Tribunal by its judgment and award has awarded a sum of Rs.3,55,000/- under different heads with interest at 8% per annum from the date of petition till the date of deposit, as against the claim of the appellant on account of injuries sustained by him in the road traffic accident. 3. In brief, the facts of the case are: The appellant submits that, he was aged about 24 years as on the date of accident. He was hale and healthy prior to the accident. He was an auto-driver by profession and 3 earning a sum of Rs.5,000/- per month. Be that as it may, appellant met with an accident on 08.01.2006 at about 3.30 p.m., when he was riding his motor cycle bearing Registration No.KA-20/L-7959 from Malpe towards Udupi along with his sister and her child who were pillion riders. At that time, one Maruthi Omni Car bearing Registration No. MH-33/A-269, driven by its driver, in a rash and negligent manner with an attempt to over take another vehicle came to the extreme right side of the road and dashed against the Motor cyclist, as a result of which, the appellant sustained grievous injuries. Immediately, he was taken to Hitech Hospital, Udupi and later shifted to KMC Hospital, Manipal. He was discharged on 23.02.2006. On account of the accidental injuries, the appellant is not in a position to understand anything and his memory power has been completely lost. To substantiate the same, the appellant has examined PW.1- Dr. A.Raja who is a Neurologist and PW.4- Dr. Kailash Poojary, ENT Specialist, of KMC Hospital. As per Ex.P13-discharge summary, the claimant sustained injuries of horizontal laceration over the fosterior aspect of the neck, thyroid cartilage laceration vertically, open cut laceration wound 4 exposing carynx and tracheal cartilage rings. Further, PW.4 has stated that the vocal cord of the claimant has been completely damaged and there is no chance of any improvement in future. PW.4 further states that, the claimant has lost the capacity to talk. He has spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges. He suffered mental pain and agony during treatment period and has to endure the same throughout his life. Therefore, he filed a claim petition under Section 166 of Motor Vehicles Act, before the Tribunal claiming compensation against the owner and insurer of the offending vehicle. The said matter had come up for consideration before the Tribunal and the Tribunal in turn after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum of Rs.3,55,000/- as compensation under different heads with interest at 8% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation. 5 4. The submission of learned Counsel appearing for the appellant at the outset is that, the Tribunal has erred in not awarding any compensation towards injury pain and suffering, medical expenses, attendant charges, nourishing food, conveyance. What is awarded by the Tribunal is inadequate and requires enhancement. To substantiate his submission, he is quick to place reliance on the oral evidence of the doctors PW.1 and PW.4 Neurospecialist and ENT Specialist respectively, who have stated about the injuries. PW.4 has opined that, the appellant has lost his vocal cord box permanently and is unable to speak permanently on account of the said injury. These aspects of the matter have not been taken into consideration by the Tribunal while awarding compensation under all heads. Therefore, he submits that, the impugned judgment and award passed by the Tribunal is liable to be modified by awarding just and reasonable compensation under all heads. 5. As against this, the learned Counsel appearing for the second respondent, inter alia, contended and sought to substantiate the impugned judgment and award passed by 6 the Tribunal as just and reasonable and is passed after due appreciation of the oral and documentary evidence available on record. Therefore interference by this Court is not called for. 6. After considering the submissions made by the learned Counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is: “Whether the quantum of compensation awarded by the Tribunal is just and reasonable?” 7. The occurrence of the accident resulting in the injuries to the claimant is not in dispute. Further it is not in dispute that, the appellant was aged about 24 years and hale and healthy as on the date of accident. He met with an accident on 08.01.2006 and sustained injuries as stated supra. It is the case of the claimant that he was earning a sum of Rs.5,000/- per month. However, he has not produced any credible proof to substantiate the same. He was also advised best rest for six months. Taking into consideration, 7 the age, avocation and the nature of injuries sustained and the duration of the treatment, I can safely re-assess the income of the claimant at Rs.4,500/- per month to meet the ends of justice. Accordingly, I deem it fit to award a sum of Rs.27,000/- (Rs.4,500 x 6) towards ‘loss of earnings during treatment period’ as against Rs.10,000/- awarded by the Tribunal. 8. Considering the nature of injuries, age, avocation and that the claimant is not in a position to continue his work as he was doing earlier and has to endure the said difficulty throughout his life. I deem it fit to award Rs.75,000/- towards ‘pain and sufferings’ as against Rs.40,000/-, Rs.30,000/- towards ‘conveyance’ as against Rs.10,000/-. awarded by the Tribunal. 9. Having regard to the nature of injuries, mental pain and agony, discomfort, unhappiness, the claimant has undergone during his treatment in the hospital and that he was aged about 24 years, his future life has been affected to a greater extent and certainly, his marriage will also be affected, I deem it fit to award a sum of Rs.2,00,000/- 8 towards ‘loss of amenities, discomfort and unhappiness in life’ as against Rs.1,25,000/- and Rs.50,000/- towards ‘loss of marriage prospects’ as against Rs.20,000/- awarded by the Tribunal. However, the Tribunal has rightly awarded a sum of Rs.1,50,000/- towards ‘medical expenses’ as per medical bills. Therefore, interference by this Court is not called for. 10. Having regard to the facts and circumstances of the case, as stated above, the claimant is entitled for total compensation of Rs.5,32,000/- as against Rs.3,35,000/- awarded by the Tribunal and the break-up is as follows: Particulars Amount In Rs. Pain and sufferings 75,000/- Medical Expenses 1,50,000/- Conveyance, nourishment 30,000/- and attendant charges Amenities, discomfort and 2,00,000/- unhappiness Loss of earnings during 27,000/- laid up period Loss of marriage 50,000/- prospectus Total 5,32,000/- 11. Having regard to the facts and circumstances of the case, the instant appeal is allowed in part. The impugned judgment and award dated 18.08.2010 passed by the 9 Additional Senior Civil Judge & MACT, Udupi in MVC No.321/2006 is hereby modified. The total compensation payable comes to Rs.5,32,000/- with 8% interest per annum as against Rs.3,35,000/- awarded by the Tribunal. Enhanced compensation comes to Rs.1,97,000/-. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs.1,97,000/- with interest at 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation, Rs.1,00,000/- 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 ten years and renewable for another ten years, with liberty to appellant to withdraw the periodical interest accrued on it.