Partly allowed

Venkatesh S/O Bapu Bhomkar, v. Rudresh D N S/O Nanjundaraya

Karnataka HC12 Sept 2023MFA/100189/2015

Case brief

AI extract

What is this about?

Compensation for severe head injuries was enhanced while the interest rate was reduced to 6%. The court upheld 100% functional disability, revised future earnings and attendant charges, and removed compensation for laid-up income loss. Both appeals were partly allowed.

What did the court decide?

Compensation enhanced; interest reduced to 6% per annum, excluding future medical expenses and future attendant charges. Deposit directed within sixty days of receipt of certified copy.

Venkatesh S/O Bapu Bhomkar, Vs Rudresh D N S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:10490-DB MFA No. 102254 of 2014 C/W MFA No. 100189 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO. 102254 OF 2014 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 100189 OF 2015 (MV)

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IN MFA NO. 102254 OF 2014

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BETWEEN:

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:45:22 +0530

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SHRIRAM GENERAL INSURANCE COM LTD., LOCAL OFFICE, C/O. SHRIRAM GEN. INS. CO. LTD., BRANCH OFFICE, TRAVELLERS BUNGALOW ROAD, HUBLI, DIST: DHARWAD, SHRIRAM GENERAL INSURANCE CO. LTD., R/O: E-8, EPIC, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR, STATE RAJASTAN, ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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(BY SRI NAGARAJ C. KOLLOORI, ADVOCATE)

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AND:

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MR. VENKATESH S/O. BAPU BHOMKAR, AGE: 62 YEARS, OCC: NIL, R/O: 307, AMBEWADI, DANDELI, TQ: HALIYAL, DIST: UTTAR KANNADA, SINCE DESABLED REPRESENTED BY HIS WIFE NEXT FRIEND VARADA W/O. VENKATESH BOMKAR,

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NC: 2023:KHC-D:10490-DB MFA No. 102254 of 2014 C/W MFA No. 100189 of 2015

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AGE: 59 YEARS, R/O: 307, AMBEWADI, DANDELI, TQ: HALIYAL, DIST: UTTARA KANNADA.

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RUDRESH D.N. S/O. NANJUNDARAYA, AGE: MAJOR, OCC: BUSINESS, R/O: GANDHINAGAR, CHELLAKERE, CHITRADURGA.

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THE MANAGING DIRECTOR, NWKRTC CENTRAL OFFICE, GOKUL ROAD, HUBLI.

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…RESPONDENTS

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(BY SRI DINESH M. KULKARNI, ADVOCATE FOR R1; BY SRI S.C. BHUTI, ADVOCATE FOR R3; R2 NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.02.14 PASSED BY THE COURT OF FAST TRACK AND MACT DHARWAD IN MVC NO.30/2011 AND PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.

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IN MFA NO. 100189 OF 2015

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BETWEEN:

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VENKATESH S/O. BAPU BHOMKAR, AGE:64 YEARS, OCC: NIL, R/O: NO. 307, AMBEWADI, DANDELI, TQ: HALIYAL, DIST: UTTARA KANNADA. SINCE DISABLE REPRESENTED BY HIS WIFE NEXT FRIEND SMT. VARADA W/O. VENKATESH BHOMKAR, AGE:60 YEARS, OCC: PVT.WORK,

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NC: 2023:KHC-D:10490-DB MFA No. 102254 of 2014 C/W MFA No. 100189 of 2015

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R/O:NO. 307, AMBEWADI, DANDELI, TQ: HALIYAL, DIST: UTTARA KANNADA.

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…APPELLANT

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(BY SRI DINESH M. KULKARNI, ADVOCATE)

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AND:

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RUDRESH D.N. S/O. NANJUNDARAYA, AGE: MAJOR, OCC: BUSINESS, (OWNER OF VEHICLE), R/O:GANDHINAGAR, CHELLAKERE, CHITTRADURGA, DIST: CHITTRADURGA.

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SHRI RAM GENERAL INSURANCE CO., LTD., LOCAL OFFICE, C/O. SHRI RAM GENERAL INSURANCE CO., LTD., BRANCH OFFICE, TRAVELERS, BUNGALOW ROAD, HUBLI, DIST: DHARWAD.

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THE MANAGING DIRECTOR, NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBLI. DIST: DHARWAD.

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…RESPONDENTS

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(BY SRI NAGARAJ C. KOLLORI, ADVOCATE FOR R2; BY SMT. P.R. BENTUR, ADVOCATE FOR R3; R1 NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE FAST TRACK AND MACT DHARWAD DATED 14-02-2014, M.V.C. NO. 30/2011 BY ENHANCING THE COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Both appeals are arising out of judgment and award dated 14^th February, 2014 passed in MVC No.30 and 79 of 2011 on the file of Fast Track and Motor Accident Claims Tribunal, Dharwad (for brevity, hereinafter referred to as the "Tribunal”).

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For the sake of convenience, the parties in these appeals are referred to as per their status and rank before the Tribunal.

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Brief facts of the claim petition are that the petitioner/claimant boarded the NWKRTC bus bearing Registration No.KA-23/F-411 on 12^th April, 2010 at 10.30 pm at Hubli to go to Bangalore. When the said bus was being driven by its driver on the left side of the National Highway near Ranebennur, i.e. on the intervening night at 00.30 hours, a Tata LPT Lorry bearing Registration No.KA-16/A-8127 came in rash a and negligent manner from opposite direction without observing traffic rules and dashed to the KSRTC bus. Due to the impact, the petitioner and other inmates of the bus sustained grievous injuries. After the accident, the petitioner was taken to Government Hospital, Ranebennur and after

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examining by the Medical Officer, immediately the petitioner was shifted to City Central Hospital, Davanagere for treatment as he had sustained severe head injury where the petitioner was treated as inpatient till 17^th April, 2010. Then the petitioner got admitted to NIHMANS, Bangalore in Emergency Head Trauma, Intensive Care Unit. Later he got admitted to Abhaya Hospital in Bangalore, Manipal Hospital, Bangalore, HIMS Hospital, Hubbali and in Private Hospitals at Davanagere and Hubballi, continuously and still the petitioner is under continuous treatment and is confined to bed. It is contended that the accidental injuries have caused permanent disablement to the petitioner, mentally as well as, physically. The petitioner cannot stand, walk, attend to his daily routine and for everything he is depending upon others. Even though, petitioner got treatment in various hospitals and undergone operations, still his health condition is deteriorating. So far, petitioner has spent more than Rs.21.00 lakh for treatment and other incidental expenses. It is further contended that six months prior to the accident, the petitioner used to work in M/s. West Coast Paper Mills, Dandeli as a Manager and was getting consolidated salary of Rs.7,000/- per month and as he

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was permanent employee of the said industry, he was earning up to Rs.10,000/- per month with perks. The accident occurred solely on account of the rash and negligent driving of the offending lorry by its driver against whom Ranebennur Rural Police registered a case in Crime No.101 of 2010 and submitted charge sheet against him. Respondents 1 and 2 being the owner and insurer of the offending lorry and respondent No.3 being the owner of bus having self-insurance are jointly and severally liable to pay compensation and on all these grounds filed claim petition seeking compensation.

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In pursuance of notice, respondent No.1 did not appear and was placed ex-parte.

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Respondents 2 and 3 appeared through their counsel and filed their written statements. The substance of the written statement of respondent No.2 is that the accident occurred due to rash and negligent driving of the NWKRTC bus by its driver and no negligence can be attributed against the driver of the lorry. The lorry has been insured with respondent No.2-Insurance Company and the policy was in force as on the date of accident. But the respondent No.1 has violated the

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terms and conditions of the policy. Further, it is denied as to the other averments made in the claim petition as false and further contended that the driver of the offending lorry was not having valid and effective driving licence as on the date of accident. On all these grounds sought to dismiss the claim petition.

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Respondent No.3 in his statement of objections contended that, on the date of accident, the driver of the NWKRTC bus driving the bus with utmost care and caution by observing traffic rules and when the said bus was slowly proceeding on the proper side of the road, at that time, driver of the offending lorry, came from opposite side in a high speed without observing traffic rules and dashed against the bus and hence the driver of the lorry was solely responsible for the accident and therefore respondent No.3 is not at all liable to pay any compensation to the petitioner. It is further contended that the police have filed charge sheet against the driver of the offending lorry on the basis of complaint lodged by driver of NWKRTC Bus after detailed investigation.

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Based on the pleadings the Tribunal framed issues for its consideration. To substantiate the case of the petitioners in both petitions, four witnesses were examined as PWs1 to 4 and 28 documents are marked as Exhibits P1 to P28. Two witnesses are examined on behalf of respondents as RW1 and 2 the policy of insurance is marked as Exhibit P1.

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Having heard the parties, the Tribunal allowed the claim petitions in part and awarded compensation of Rs.13,23,453/- in MVC No.30 of 2011 and global compensation of Rs.20,000/-with in MVC No.79 of 2011 with interest at the rate of 8% per annum from the date of petition till realisation excluding interest on future medical expenses and future attendant charges. Being aggrieved by the impugned judgment and award, Shriram General Insurance Company has preferred Miscellaneous First Appeal No.100189 of 2015 questioning the quantum; and being not satisfied with the compensation, the petitioner has filed Miscellaneous First Appeal No.102254 of 2014 seeking enhancement in compensation.

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Learned counsel appearing for the Insurer submits that the Tribunal without looking into the material evidence on record, based on presumptions and assumptions has taken the disability of the petitioner at 100% and has awarded compensation of Rs.13,23,453/-. It is also submitted that Tribunal has awarded exorbitant future attendant charges which is arbitrary and illegal. Learned counsel further submits that the interest awarded by the Tribunal at the rate of 8% is also on the higher side and on all these grounds sought to allow the appeal.

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Learned counsel appearing for the petitioner submits that the Tribunal has not awarded just compensation and the compensation awarded is on the lower side. Hence, he prays for enhancement of compensation.

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Having heard the learned counsel appearing for the learned counsel for the parties, the following points would arise for our consideration in these appeals:

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Whether the insurer has made out a ground to reduce the quantum of compensation awarded by the Tribunal?

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Whether the insurer has made out a ground to reduce the rate of interest from 8% per annum as awarded by the Tribunal to 6% per annum?

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Whether the claimant is entitled for enhancement of compensation as sought for?

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What order?

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Our answer for the above points is as under:

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Point No.1: in the negative;

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Point No.2: partly in the affirmative;

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Point No.3: partly in the affirmative; Point No.4: as per final order.

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Regarding Point No.1

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The accident is not in dispute and the petitioner suffering grievous injury and also taking treatment at various hospitals, is also not in dispute. The Tribunal, at paragraphs 17 to 21 of the judgment, has observed as under:

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“17. So, looking to the medical records of the petitioner coupled with oral evidence of P.W.3, it is clear that the petitioner had sustained severe head injuries affecting him seriously and he has undergone several major

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surgical operations as part of treatment in reputed multispecialty hospitals and he has taken prolonged treatment. So, on the basis of evidence on record it appears that the petitioner is entitled to get compensation in this case under the following heads:

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PAIN AND SUFFERING:

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Looking to oral evidence of P.W.1 and P.W.3 and also documentary evidence Ex. P.6 to P.11, P.14 to P.17, P.19, 24 to P.27, it is clear that petitioner had sustained severe head injuries i.e., Traumatic Brain injury with severe axonal injury, right frontal depressed fracture with contusion, frontal and left temporal, right high frontal and left occipital specks of contusion, mild diffuse cerebral edema. Further petitioner has taken treatment in City Central Hospital Dawangere as inpatient from 13.4.2010 to 17.4.2014 and then shifted to NIMHANS, where CT brain done revealed on 17.4.2010 craniotomy defect, frontal and left temporal, right high frontal and left occipital specks of contusion, mild diffuse cerebral edema. Then petitioner was shifted to Abhaya Hospital, Bangalore wherein he was treated as inpatient from 19.4.2010 to 30.5.2010. Petitioner underwent craniotomy and decompression on 13.4.2010 for right frontal depressed fracture with contusion. Further petitioner in Abhaya Hospital underwent tracheotomy on 20.4.2010 for effective airway. Petitioner was on ventilator and was slowly weaned off. Further petitioner was referred to Manipal Hospital for further rehabilitation wherein petitioner took treatment as inpatient from 30.5.2010 to 9.7.2010. Further petitioner has undergone cranioplasty

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under GA on 24.6.2010. So medical records of the petitioner makes it clear that the petitioner, due to accidental injuries, has suffered lot and he has taken prolonged treatment as inpatient for not less than 2 ½ (two and half) months by under going several major operations. So, looking all these facts it appears that the petitioner must have suffered lot of pain and agony. Hence, I feel it is just and proper to award Rs.1,00,000/- to petitioner under the head of pain and suffering.

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LOSS OF AMENITIES AND FUTURE UNHAPPINESS:

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Looking to the nature of injuries sustained by the petitioner, period and nature of treatment taken for the same and also disability of the petitioner stated by P.W.3 Doctor, it appears that petitioner throughout his life has to suffer in greater extent and completely he has to depend upon some others for each and everything for his daily routine activities like taking meals and answering nature calls etc., till his end. Actually petitioner has been confined to wheel chair and unable speak properly which facts have been mentioned in the order sheet dated 29.1.2013 by the then presiding officer of this court. So, considering all these facts, I feel it is just and proper to award compensation of Rs.1,00,000/- under the head of loss of amenities and future unhappiness.

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MEDICAL EXPENSES INCURRED:

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PW.1 in her evidence in chief examination deposed that for treatment of petitioner and other incidental expenses near about Rs.20,00,000/- has been spent. This

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evidence of PW.1 has been denied in cross-examination. The petitioner has produced medical and hospital bills at Ex. P.9 and P.14. Scrutiny and scanning of all these hospital and medical bills discloses that some bills are advance deposit receipts and ambulance charges etc. So after deducting the said amounts of said bills, it appears that the petitioner has spent total amount of Rs.4,99,453/-. So, looking to the nature of injuries sustained by petitioner and also nature of treatment as well as period of treatment taken by the petitioner in reputed hospitals and in view of Ex. P.9 & P.14, I feel it is just and proper to award amount of Rs.4,99,453/- under the head of medical expenses incurred.

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INCIDENTAL EXPENSES:

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Looking to the nature of injuries sustained by the petitioner, period and nature of treatment taken by the petitioner for the said injuries in various hospitals in Bangalore, I feel it is just and proper to award Rs.50,000/- under the head of incidental expenses like conveyance, attendant and nourishment etc.

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LOSS OF INCOME DURING LAID UP AND REST PERIOD:

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PW.1 in her evidence in chief examination deposed that prior to accident petitioner used to work with West coast paper mill, Dandeli as a Manager and used to get consolidated salary of Rs.7,000/- per month 6 months earlier to the date of accident. Further PW.1 deposed that petitioner was permanent employee of above said industry and used to receive salary of Rs.10,000/- per month with perks. Looking to this evidence of PW.1 it is

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clear that as on the date of accident i.e., prior to accident petitioner was not working anywhere. Further petitioner himself has produced one document at Ex. P.12 said to have been issued by the West Coast Paper Mill Ltd., Dhandeli which discloses that he is a retired man and he has served in the said company from 1.7.1979 to 20.3.2009 and he was designated as ‘Assistant’ in Public Relation Department when he retired from the service in the said company. Further admittedly petitioner has not adduced any other evidence except PW.1’s tainted oral evidence with regard to avocation and income of the petitioner as on the date of accident or just prior to the accident. So, under such circumstances looking to the age of petitioner and in view absence of pleading with regard to avocation and income of the petitioner in the petition as on the date of accident or just prior to accident date, I feel it is just and proper to hold that the petitioner was non earning person as on the date of accident and so his annual notional income has been taken at Rs.15,000/- for assessing compensation to be awarded to petitioner under the head of loss of income during laid up and rest period and future loss of income.

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Looking to the nature of injuries sustained by the petitioner and period and nature of treatment for the said injuries the petitioner must have taken complete rest for not less than one year. Hence I feel it is just and proper to award Rs.15,000/- under the head of loss of income during laid up and rest period.

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LOSS OF FUTURE INCOME:

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P.W.3 doctor deposed that petitioner is having 50% permanent physical disability. But looking to the nature of injuries sustained by the petitioner and looking to the present condition of the petitioner who is not able to stand up and walk and also to speak properly and also looking to Ex. P.7 disability certificate issued on 8.10.2010 as well as Ex. P.26 Disability Certificate issued by P.W.3 Doctor on 12.5.2012, and in view of evidence of P.W.3, I feel it is just and proper to hold that petitioner is having 100% functional disability for assessing the compensation under the head of loss of future income.

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As per medical records, petitioner’s age as on the date of accident is 59 years. Since petitioner’s age is coming under the age group of 56 to 60 years, multiplier 9 is applicable as per guidelines laid down by the Hon’ble Supreme Court in a decision reported in 2009 ACJ 1298 (Sarla Verma & Others Vs. Delhi Transport Corporation and others). So the loss of future income would be Rs.15,000/- (annual income) X 9 (multiplier) X 100% (disability) / 100 = Rs.1,35,000/- (loss of future earnings). Hence I award Rs.1,35,000/- under the head of loss of future income.

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FUTURE MEDICAL EXPENSES:

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P.W.3-doctor deposed in his evidence that petitioner needs continuous treatments in future and further petitioner has to undergo surgery if he develops fits/convergence. But the petitioner has not adduced any evidence exactly how much of amount he requires for future treatment and P.W.1 and P.W.3 also not deposed

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anything in this regard. Anyway, looking to the present condition of the petitioner as well as his age I feel it is just and proper to award Rs.50,000/- under the head of future medical expenses.

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COMPENSATION TOWARDS FUTURE ATTENDANTS CHARGES:

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Looking to the present condition of the petitioner who is not able to stand up and walk and also to speak properly and also looking to Ex. P.7 disability certificate issued on 8.10.2010 as well as Ex. P.26 Disability Certificate issued by P.W.3 Doctor on 12.5.2012, and in view of evidence P.W.3 it is clear that the petitioner has to be looked after by somebody for meals and for answering nature calls etc., since he can not walk and stand up on his legs throughout his life. Therefore petitioner should necessarily have an attendant and he has to spend around rupees at least hundred per day and so monthly charges would be Rs.3,000/-. Therefore attendant charges would be Rs.3,000/- X 12 X 9 = 3,24,000/- under the head of future attendants charges.

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COMPENSATION TOWARDS LOSS OF EXPECTATION OF LIFE ( Shortening of normal longevity):

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Looking to the present health condition of the petitioner and looking to the injuries sustained by him and also looking to the disability stated by PW.3, it appears that definitely petitioner’s span of life will be reduced. Therefore I feel it is just and proper to award Rs.50,000/- under this head.

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18. Thus petitioner in MVC No.30/2011 is entitled

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to get total compensation of Rs.13,23,453/- as under:

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*Sl.* *No.*	*Head*	*Amount.*
1.	Pain and sufferings.	Rs.1,00,000/-
2.	Loss of amenities and future unhappiness.	Rs.1,00,000/-
3.	Medical expenses incurred.	Rs.4,99,453/-
4.	Incidental expenses.	Rs.50,000/-
5.	Loss of income during laid up and rest period.	Rs.15,000/-
6.	Loss of future income.	Rs.1,35,000/-
7.	Future medical expenses.	Rs.50,000/-
8.	Compensation towards future attendants charges	Rs.3,24,000/-
9.	Compensation towards loss of expectation of life.	Rs.50,000/-
	TOTAL:	*Rs.13,23,453/-*

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19. ISSUE No.2 IN MVC No.79/2011:

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P.W.2-Tejaswini in her evidence in chiefexamination deposed that in the accident she had sustained grievous injuries including fracture of right hand elbow joint and left leg tibial tubersiting left knee joint and other bleeding and contused injuries. Further PW.2 deposed that she was first seen by medical officer, City Central Hospital, Davanagere but since they did not care to treat her properly, immediately on 14.4.2010 she rushed to her known Dr.M.I. Hanchanal, orthopedic surgeon of Mayur Nursing Home, Dharwad as she was having severe pain in her right hand and left leg. Further PW.2 deposed that after clinical examination, as per said doctor’s advice, she was admitted as inpatient in the said hospital on the same day and she took treatment as

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inpatient till 18.4.2010. Further PW.2 deposed that she has continued to take treatment as out patient and she attended the said hospital for more than 8 to 10 times. Further PW.2 deposed that she is experiencing heavy pain and stiffness in the right elbow and hand and left knee joint and weakness in upper and lower limbs. After taking x-rays it was noticed that there is a fracture in right elbow and fracture of tibial tubersiting. Further PW.2 deposed that she was treated by doctor by doing bone setting, plaster, dressing, medicines, application of splint creep etc. Further PW.2 deposed that still she is experiencing heavy pain in right hand and left leg, knee and left ankle and she can not do work, walk straight, cannot sit crossed leg, squat. Further PW.2 deposed that she is permanently disabled. Further PW.2 adduced evidence of PW.4 Dr.Mahantesh Hanchanal, who is said have treated her. PW.4 also in his evidence in chief examination deposed that on 14.4.2010 petitioner Tejaswini had come to his hospital the history of injuries in RTA on 13.4.2010. Further PW.4 deposed after taking x-rays it was revealed that petitioner Tejaswini had crack fracture of head of radius of right elbow joint, fracture of tubersiting of left knee joint intr-articular fracture. Further PW.4 deposed that petitioner Tejaswini had taken first aid treatment in City central Hospital, Davanagere as per say of petitioner. Further PW.4 deposed with regard to the treatment given to the petitioner as inpatient from 14.4.2010 to 18.4.2010. Further PW.4 deposed that petitioner is having permanent disability of 18% in respect of right upper limb and left lower limb and she cannot work and further she is in need of future

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treatment. Further PW.4 deposed that he produced case sheet, disability certificate and two x-rays which have been marked respectively as Ex. P.28, P.20 and P.23.

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20. However looking to cross-examination of PW.4 and in view of Ex. P.18 wound certificate issued by City Central Hospital, Davanagere, it appears that petitioner had sustained only simple injuries and there are no any fractures as stated by PW.4 and PW.4 might be deposing in exaggerated manner so as to help the petitioner Tejaswini to get more compensation. In Ex. P.18 wound certificate it is categorically mentioned that petitioner Tejaswini has been examined at 3.00 a.m. on 13.4.2010 and petitioner Tejaswini was having Grazed abrasion measuring 3cm X 2 cm present over interior aspect of right elbow, situated 1cm behind the lateral epicondyle and contusion with tenderness measuring over an area of 10cm X 8cm over the anterior medial aspect of upper 1/3rd of left leg. Further X-rays produced by P.W.4 does not contain date of taking x-rays and also name of the petitioner. So it cannot be presumed that said x-rays are pertaining to petitioner Tejaswini. Further even in police records also the petitioner Tejaswini had not sustained grievous injuries. Moreover, petitioner, being daughter of Petitioner Venkatesh, who was admittedly seriously injured and he was taken to City Central Hospital Dawangere wherein he was admitted as inpatient, that too in ICU, till 17.4.2010, must have been in Dawangere itself for looking after and to take care of her father. So, considering theses facts and looking to Ex. P.18 Wound Certificate issued by City Centre Hospital Dawanagere

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where petitioner had immediately gone for taking treatment along with her father, it appears that petitioner had sustained only simple injuries no any fractures as stated by P.W.4. So, I feel it is just and proper to award global compensation of Rs.20,000/- to petitioner for pain and suffering medical expenses and other incidental expenses.

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21. Thus petitioner in MVC No.79/2011 is entitled to get global compensation of Rs.20,000/-. “

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On re-appreciation of the evidence on record, we are of the considered opinion that the Tribunal has appreciated the material placed before it in right perspective and has arrived at the conclusion as to the liability of the respondent is concerned and same cannot be found fault with. Accordingly, we answer point No.1 in the negative.

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Regarding Point No.2:

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The learned counsel for the respondent Insurer submits that the Tribunal has committed an error in awarding interest at the rate of 8% per annum which is an error. We find force in the said submission and considering the prevailing interest rate awarded by the Nationalised Banks, we deem it

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appropriate to reduce the same from 8% to 6% per annum. Accordingly, point No.2 is answered partly in the affirmative.

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Regarding Point No.3:

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Learned counsel appearing for the Insurer vehemently submitted that though the doctor has assessed the permanent disability of the petitioner at 50% whereas the Tribunal has considered at 100%, which is an error. In this regard, we have carefully examined the material on record. The petitioner has adduced the evidence of PWs1 and 3 and produced documents evidence Exhibits P6 to P11, P14 to P17, P19, P24 to P27. A careful examination of all these evidence makes it clear that the petitioner has sustained severe head injury, i.e. traumatic brain injury with severe axonal injury, right frontal depressed fracture with contusion, frontal and left temporal, right high frontal and left occipital specks of contusion, mild diffuse cerebral edema. After assessing the evidence placed by the petitioner, the Tribunal has clearly observed that considering the nature of injury sustained by the petitioner and also the condition of the petitioner who is not able to stand up, walk and also to speak properly, the Tribunal

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has assessed the functional disability at 100%. On reappreciation and re-examination of the evidence on record, we are of the considered opinion that the Tribunal has rightly assessed the functional disability of the petitioner at 100% and the same is sound and proper.

¶146

With regard to assessing the income of the petitioner is concerned, the Tribunal has assessed the income of the petitioner at Rs.3,000/- per month. The same is not in consonance of the guidelines issued by Karnataka State Legal Services Authority. With regard to accidents of the year 2010, the notional income is to be taken at Rs.5,500/- per month. As per the age of the petitioner, the appropriate multiplier would be 9 and the same is taken by the Tribunal. Then the loss of future earning comes to Rs.5,94,000/- (Rs.5,500/- x 12 x 9).

¶147

The Tribunal has awarded amount of Rs.15,000/towards loss of income during laid up period. Since the function disability of the petitioner is considered at 100%, the question of loss during laid up period does not arise. Hence, the petitioner is not entitled for Rs.15,000/- under the said head. In view of the fact that the permanent physical disability

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of the petitioner is considered as 100%, and petitioner requires the assistance of an attendant, it is necessary to award compensation towards attendant charges. At this juncture, it is pertinent here to refer to the decision of the Hon'ble Supreme Court in the case of KAJAL v. JAGDISH CHAND reported in (2020) 4 SCC 413, wherein i t is observed thus:

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“ It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O’Connor:

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" Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax. "

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Further at paragraphs 24 and 25 of the said judgment,

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it is observed thus:

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“ 24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 and Others, U.P. State Road Transport Corporation and Others V. Trilok Chandra and Others, Sandeep Khanjuja v. Atul Dande. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant’s age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.

¶158

25. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the cost of one attendant at Rs.5,000/- and she will require two attendants which

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works out to Rs.10,000/- per month, which comes to Rs.1,20,000/- per annum, and using the multiplier of 18 it works out to Rs.21,60,000/- for attendant charges for her entire life. This takes care of all the pecuniary damages. ”

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In the above said case, the Hon'ble Supreme Court,

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considering the tender age of child, the difficulty of the child in handling her menstrual periods, so also considering her marriage prospects, opined that the claimant, in the said case, require two attendants and accordingly, considering Rs.5,000/per attendant, has awarded Rs.10,000/- per month towards attendant charges for the entire life. In the case on hand, since the claimant was aged 59 years as on the date of accident, we deem it appropriate that the one attendant would suffice to take care of the appellant. Accordingly, the amount towards attendant charges would be Rs.5,40,000/- (Rs.5,000/- x 12 x 9).

¶164

As regards other heads are concerned, the Tribunal has awarded just and proper compensation. Accordingly, the petitioner is entitled for compensation as follows:

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Sl.No.	Head	Amount (Rs.)
1.	Towards Pain and suffering	1,00,000.00
2.	Towards unhappiness	1,00,000.00
3.	Towards Medical Expenses	4,99,453.00

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4.	Towards Incidental expenses	50,000.00
5.	Towards Loss of Future income	5,94,000.00
6.	Towards Future medical expenses	50,000.00
7.	Towards Future attendant charges	5,40,000.00
8.	Loss of expectation of life	50,000.00
	Total	19,83,453.00

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Accordingly, we answer point No.3, partly in the affirmative.

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Regarding Point No.4:

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For the aforesaid reasons and discussions, we

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proceed to pass the following:

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O R D E R

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Miscellaneous First Appeal No.102254 of 2014 preferred by the Insurer is allowed in part;

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Miscellaneous First Appeal No.100189 of 2015 preferred by the claimant is allowed in part;

¶176

Judgment and award dated 14^th February, 2014 passed in MVC No.30 of 2011 is modified by enhancing the compensation to Rs.19,83,453/as against Rs.13,23,453/awarded by the Tribunal;

¶177

It is made clear that the compensation amount would carry interest at the rate of 6% per annum from the date of petition till realisation.

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The denial of interest towards the amount of future medical expenses and future attendant charges is left unaltered;

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The apportionment and disbursement of the compensation amount is as per the judgment and award of the Tribunal;

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The respondent shall deposit the amount before the Tribunal within sixty days from the date of receipt of certified copy of this judgment;

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Amount if any in deposit, be transmitted to the Tribunal forthwith

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Registry to draw award accordingly;

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Send the copy of this judgment along with trial Court records to the concerned court forthwith for onward disbursal of the compensation amount to the claimant.

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Sd/JUDGE

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Sd/JUDGE

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CKK LIST NO.: 1 SL NO.: 46

Venkatesh S/O Bapu Bhomkar, v. Rudresh D N S/O Nanjundaraya

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Venkatesh S/O Bapu Bhomkar, v. Rudresh D N S/O Nanjundaraya

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