B N GOWDEGOWDA v. The Branch Manager

Judgment

2. THE BRANCH MANAGER THE NATIONAL INSURANCE CO. LTD. P.B.112, SRI MANJUNATHESWARA COMPLEX, BUS STAND ROAD HASSAN – 573 201. MANJUNATHA S/O.NANJEGOWDA, MAJOR R/O. NIDUDI, KASABA HOBLI HASSAN TALUK HASSAN – 573 201. ...RESPONDENTS (BY SMT: S NIRMMALA, ADVOCATE FOR RESPONDENT NO.1. NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH VIDE ORDER DATED 28.3.2012)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 7.9.2011 PASSED IN MVC 2 NO.2306/2009 ON THE FILE OF ADDITIONAL DISTRICT JUDGE AND MACT-II, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL 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 judgment and award dated 7.9.2011 passed in MVC No.2306/2009 on the file of the Addl. District Judge and MACT-II, Hassan, (for short, ‘the Tribunal’). By the impugned judgment and award, the Tribunal has awarded a compensation of Rs.3,37,000/- with interest at 6% per annum from the date of petition till the date of realisation, on account of the injuries sustained by the claimant in the road traffic accident. The claimant has presented this appeal contending that the quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement.

2. The claimant presented a claim petition under Section 166 of Motor Vehicles Act before 3 the Tribunal contending that on 7.6.2009 at about

10.30 p.m. when the claimant along with his friend Madhu was walking on the left side of the road to go to Jodikrishnapura from Nidudi, the rider of the motor cycle bearing registration No.KA-13-U-7622 came in a rash and negligent manner from opposite side and dashed against the claimant and due to the impact, he sustained grievous injuries to his left femur and arm. Immediately he was admitted to Mangala Hospital, Hassan, and was treated as an inpatient for 15 days and also underwent two surgeries and that he has suffered 50% permanent disability to the limb and 17% disability to the whole body. He further contended that he was aged 28 years at the time of accident and was earning substantial income as an agriculturist and also by doing retail business in food grains and that he was hale and healthy prior to the accident.

3. It is the further case of the claimant that he has spent considerable amount towards 4 medical, conveyance, nourishing food and attendant charges.

4. The said matter had come up for consideration before the Tribunal and the Tribunal, in turn, on careful evaluation of the oral and documentary evidence available on record, allowed the same in part, awarding a sum of Rs.3,37,000/- under different heads with interest at 6% per annum from the date of petition till the date of realisation. Being dissatisfied with the compensation awarded by the Tribunal, the claimant felt necessitated to present this appeal seeking enhancement of compensation.

5. The learned counsel for the appellant, at the outset, submitted that the Tribunal has erred in not awarding any compensation towards conveyance, nourishing food and attendant charges and that the Tribunal has erred in assessing the income of the claimant at Rs.3,000/- per month. 5 He further submits that the claimant has taken bed-rest for more than six months as per the advice of the Doctor and that due to the injuries sustained by the claimant, discomfort and unhappiness persists throughout his life. Therefore, he submits that the impugned judgment and award is liable to be modified, by awarding just and reasonable compensation to the claimant.

6. As against this, learned counsel appearing for the insurer inter-alia substantiated the impugned judgment and award passed by the Tribunal as just and proper and submits that the same is passed after due consideration of the oral and documentary evidence available on record and therefore, interference by this Court is uncalled for.

7. After careful perusal of the material available on record, what emerges is that occurrence of the accident and the resultant injuries suffered by the claimant are not in 6 dispute. Further, it is not in dispute that the claimant was aged about 28 years at the time of the accident and he was an agriculturist by profession and was also doing retail business in food grains. The Tribunal has assessed the income of the claimant at Rs.3,000/- p.m. which is on the lower side. The accident has occurred on 7.6.2009. Having regard to the age, avocation and the year of accident, the income of the claimant is assessed at Rs.5,000/- per month, to meet the ends of justice. Due to the injuries suffered, the claimant was treated as an inpatient for 15 days and he also underwent two surgeries. The Doctor has assessed the permanent disability suffered by the claimant at 50% to the limb and 1/3rd of the same, i.e. 17% would be the disability to the whole body. The appropriate multiplier is '17'. As per the advice of the Doctor, the claimant might have taken bed-rest for more than six months to recover from the injuries suffered in the accident. Further the claimant must have spent considerable amount 7 towards conveyance, nourishing food and attendant charges. In future, the claimant may not be able to work as effectively as he was working prior to the accident. This aspect of the matter has not been looked into nor appreciated by the Tribunal. Considering the above aspects, a sum of Rs.15,000/- is awarded towards conveyance, nourishing food and attendant charges, Rs.30,000/- is awarded towards loss of earnings during laid-up period at the rate of Rs.5,000/- per month for six months as against Rs.18,000/-, Rs.30,000/- towards loss of amenities as against Rs.10,000/-, and Rs.1,73,400/- (Rs.5,000/- x 12 x 17 x 17%) towards loss of future income due to disability as against Rs.49,000/- awarded by Tribunal.

8. Further, the Tribunal is justified in awarding a sum of Rs.35,000/- towards pain and sufferings, Rs.2,05,000/- towards medical expenses, and Rs.20,000/- towards future medical expenses and therefore, it does not call for interference by this Court. 8

9. Accordingly, the claimant is entitled to compensation as under: Pain and suffering Medical expenses Loss of income during laid-up period Loss of amenities Future expenses medical Conveyance, nourishing food and attendant charges Loss of future income due to disability Rs.35,000/- Rs.2,05,000/- Rs.30,000/- Rs.30,000/- Rs.20,000/- Rs.15,000/- Rs.1,73,400/- Total Rs.5,08,400/- In all, the claimant is entitled to compensation of Rs.5,08,400/- as against Rs.3,37,000/- awarded by the Tribunal. There will be enhancement of Rs.1,71,400/- with interest at 6% per annum from the date of petition till the date of realisation.

10. For the foregoing reasons, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 7.9.2011 passed 9 in MVC No.2306/2009 on the file of the Addl. District Judge and MACT-II, Hassan, is hereby modified, awarding a sum of Rs.1,71,400/- with interest at 6% per annum from the date of petition till the date of realisation, in addition to the compensation awarded by the Tribunal. Respondent No.1-Insurer is directed to deposit the enhanced compensation amount with interest within a period of three weeks from the date of receipt of a copy of the judgment and award. Out of the enhanced compensation of Rs.1,71,400/-, Rs.1,00,000/- with proportionate interest shall be invested in the name of the appellant, in any Nationalised / Scheduled Bank initially for a period of ten years and to be renewed for a period of another ten years. The appellant is entitled to withdraw the interest periodically. 10 The remaining amount of Rs.71,400/- along with proportionate interest shall be released in favour of the appellant, on deposit by the insurer. Draw the award accordingly. Sd/- JUDGE KM