Smt. Kaveramma Vs Shri Booraram Patel

SMT. KAVERAMMA W/O.LATE HOOVANNAGOWDA AGED ABOUT 43 YEARS OCC.TELEPHONE OPERATOR, R/AT. TEMPLE STREET, NEAR B.M.ROAD, SAKALESHPUR TOWN, SAKALESHPUR TALUK, HASSAN DISTRICT- 573 134 … APPELLANT

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(BY SRI. MUNIRAJ V, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: High Court of Karnataka

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SHRI BOORARAM PATEL S/O CHIMNARAM PATEL, AGE-MAJOR, OCC-ARATHI ELECTRICAL, BHUVANESHWARI ROAD, SAKALESHPUR TOWN, SAKALESHPUR TALUK, HASSAN DISTRICT - 573134.

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THE MANAGER NATIONAL INSURANCE COMPANY LTD., R/O REGD. OFFICE:3, MIDDLETON STREET, P.B.NO.9229, KOLKATA-700071,

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REPRESENTED BY: THE MANAGER, NATIONAL INSURANCE COMPANY LTD., 1^ST FLOOR, MANJUNATHA COMPLEX,

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HASSAN – 573 201. … RESPONDENTS

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(BY MS. NISHA REBELLO, ADVOCATE FOR SRI A.M. VENKATESH, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DTD 03.09.2015)

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NC: 2025:KHC:4992-DB MFA No. 3085/2015

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 13.02.2015 PASSED IN MVC NO.896/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, AT SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL

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and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Questioning the adequacy of compensation awarded, the claimant in MVC No.896/2014 on the file of Senior Civil Judge, Sakaleshpura has preferred this appeal.

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Appellant herein is the claimant and respondent Nos.1 and 2 are respondent Nos.1 and 2 in MVC No.896/2014. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 07.05.2014 at 4.15 p.m., when petitioner was waiting for auto rickshaw near new bus stand in Sakaleshpura Town, respondent No.1 the rider of motorbike bearing registration No.KA-46-H-1267 hit the claimant. Consequently, she suffered grievous injuries. She was shifted to Government Hospital, Sakaleshpura. After preliminary treatment, she was

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shifted to Supriya Orthopedic Hospital, Hassan, wherein she was treated between 07.05.2014 and 14.05.2014 as inpatient and underwent certain medical procedures. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of motorbike bearing registration No. KA–46–H-1267. She filed MVC No.896/2014 against the respondents claiming compensation of `20 lakhs contending that the accident and injuries to her was due to actionable negligence on the part of respondent No.1 in riding the motorbike bearing registration No.KA-46-H-1267.

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She further contended that due to the accidental injuries, she suffered permanent physical disability. She was working as agriculturist and she was also running a telephone booth at KSRTC Bus Stand and earning `20,000/- p.m. Due to her physical disability, she has lost her future earnings, she spent huge amount for medical expenses and underwent lot of pain and suffering etc. She contended that respondent Nos.1 and 2 being the owner and insurer of the offending motorbike are liable to pay the compensation.

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Respondent No.1 in his statement of objections did not dispute the accident and claimed that the vehicle was

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NC: 2025:KHC:4992-DB MFA No. 3085/2015

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insured with respondent No.2 and liability, if any, is payable by respondent No.2. Respondent No.2 contested the petition denying the involvement of the insured motor vehicle in the accident, age, occupation, income of the claimant and it’s liability to pay the compensation.

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Before the Tribunal, in support of her case, claimant got herself examined as PW.1, the Doctor who treated was examined as PW.2 and on her behalf Exs.P1 to P61 were marked. The respondents did not lead any evidence.

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The Tribunal on hearing the parties, by the impugned judgment and award held that the accident and consequential injuries to the claimant occurred due to the actionable negligence on the part of respondent No1. The Tribunal based on the evidence of PWs.2 and 4, assessed the permanent physical disability of the claimant at 12% to the whole body, considered her age as 44 years, notional income at

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5,000/- per month, applied 14 multiplier and awarded compensation of 1,00,800/- on the head of loss of future income.

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The Tribunal in all awarded compensation of

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`2,90,800/- on different heads as follows:

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1	Towards loss of future income	`1,00,800.00
2	Towards pain and suffering	`25,000.00
3	Towards traveling, conveyance and attendant’s charges	`5,000.00
4	Towards loss of future amenities	`5,000.00
5	Towards medical expenses	`1,45,000.00
6	Towards future medical expenses	`10,000.00

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The claimant has filed the above appeal questioning the adequacy of the compensation awarded to her.

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Before this Court the appellant/claimant has filed I.A.1/2021 under Order 41 Rule 27 of CPC to adduce additional evidence. The same is opposed by learned counsel for respondent No.2/insurer.

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Submissions of Sri V. Muniraju, learned counsel for the appellant/claimant:

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The evidence of PW.2 shows that the claimant had suffered grievous injuries, hence the disability considered by the Tribunal is on the lower side. The notional income considered by the Tribunal and compensation awarded on all heads is on lower side. That after disposal of the claim

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petition, the claimant underwent second surgery for removal of the implants. Therefore, compensation has to be awarded on the head of future medical expenses as per the documents produced along with I.A.1/2021. Therefore, those documents shall be received in evidence and compensation be awarded accordingly.

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Submissions of Smt. Nisha Rebello, learned counsel for Sri.A.M.Venkatesh, advocate on record for respondent No.2:

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As per the claimant she was running STD Booth at KSRTC Bus stand. The Tribunal has held that there is no loss of future income. Considering the medical evidence and other evidence on record, the compensation awarded by the Tribunal is just one. So far as I.A.1/2021, those documents cannot be admitted in evidence as the author of the said documents is not cited as witness in the application. The application and appeal both shall be dismissed.

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On hearing both side and on examination of the material on record, the questions that arise for determination of the Court are:

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i) Whether the compensation awarded by the Tribunal under the impugned award is just one?

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ii) Whether I.A.1/2021 deserves to be allowed?

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Analysis

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Reg. Point Nos.(i) and (ii):

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Respondents have not challenged the finding of the Tribunal that on 07.05.2015 at 4.15 p.m. due to rash and negligent riding of motorbike bearing registration No.KA-46-H1267 by respondent No.1, the claimant suffered grievous injuries. The findings of the Tribunal regarding her period of hospitalization, she undergoing the surgery and PW.2 Doctor performed the surgery are all not disputed. The evidence of PW.2 and Ex.P9/wound certificate show that the claimant had suffered the following injuries:

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i) Fracture of right femur ii) Fracture of right femur intercondylar iii) Tenderness over chest iv) Tenderness over TL spine v) Tenderness over pelvis

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Ex.P11/discharge summary of Janapriya

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Orthopaedic Centre, Hassan and the evidence of PW.2 show that claimant was treated as inpatient in the said hospital between 7.5.2014 and 14.5.2014, PW.2 conducted surgery on her with ORIF plate and screws. PW.2 further deposed that

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NC: 2025:KHC:4992-DB MFA No. 3085/2015

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during examination of the claimant on 11.01.2015 he found the

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following:

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i) Right hip, knee and ankle movements restricted and painful.

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ii) Not able to lift the weight and walk

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iii) Patient is not able to walk for long distance

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iv) Not able to squat

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v) Recent X-ray disclosed as the fracture not united.

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The Doctor assessed the permanent disability at 36% with respect to right lower limb. Through him, claimant’s disability to the whole body was not elicited by the claimant’s counsel. Therefore, the Tribunal was justified in taking 1/3^rd of the same as permanent physical disability to the whole body.

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The Tribunal at one stretch says that there is no loss of future income, however, the Tribunal itself awarded compensation on the head of loss of future earnings. The claimant at the time of accident being aged 44 years is not under challenge. She claimed that she was doing agricultural work also. Therefore, there would be loss of future earnings because of her disability. The Tribunal assessed her income notionally at `5,000/-. But considering the age and occupation of the claimant, prevailing wage rates and cost of living during

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the relevant time, the said assessment is on the lower side, reasonably the same could be considered at 8,500/- per month. Applicable multiplier is 14. Therefore, the compensation payable on the head of loss of future earnings is 8,500/- x 12x12/100 x 14 = `1,71,360/-.

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Considering the fact that the claimant had two fractures of which one was certified as grievous and three simple injuries, the compensation awarded on the head pain and suffering needs to be re-assessed from 25,000/- to 60,000/-.

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Considering the period of hospitalization and other medical evidence, the compensation awarded on the head of attendant charges, diet and conveyance needs to be enhanced to from 5,000/- to 20,000/-.

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Similarly, the compensation awarded on the head of amenities needs to be enhanced from 5,000/- to 25,000/-.

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The medical expenses awarded is based on the evidence adduced by the claimant. Therefore, that has to be maintained.

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NC: 2025:KHC:4992-DB MFA No. 3085/2015

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Considering the evidence of PW.2 and other material on record, it can safely be concluded that at least for three months the claimant could not have attended to her work. Therefore, the Tribunal ought to have awarded loss of income during laid up period (8,500/- x 3) at 25,500/-.

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So far as future medical expenses, PW.2 deposed that the claimant has to undergo another surgery for removal of implants which may cost up to 50,000/-, but the Tribunal has awarded only 10,000/- on that head. The claimant has filed I.A.1/2021 to show that she was admitted in Janapriya Hospital, Hassan between 08.05.2017 and 13.5.2017 and during that period underwent surgery for removal of the implants. According to the appellant/claimant’s counsel, claimant spent around 1.00 lakh for the same. Though the application was filed to produce the documents, there is no prayer to examine the author of the said document. Even as per the hospital bill produced along with the said application, the hospital charges were 33,000/- in addition to some medical investigation charges etc. Since PW.2 has assessed the cost of such treatment at `50,000/-, that can be considered in view of the claimant not seeking to examine the author of

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documents produced along with I.A.1/2021. On consideration of the same at `50,000/- as spoken by PW.2, I.A.1/2021 does

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not survive for further consideration. Therefore, the just

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compensation payable is as follows:

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Sl. No.	Heads	Amount awarded by this Court (`)
1.	Loss of future earnings	1,71,360/-
2.	Pain and sufferings	60,000/-
3.	Diet, attendant charges and conveyance	20,000/-
4.	Loss of amenities	25,000/-
5.	Medical expenses	1,45,000/-
6.	Future medical expenses	50,000/-
7.	Loss of income during laid up period	25,500/-
	Total	4,96,860/-
	Less: awarded by Tribunal	2,90,800/-
	Enhancement	2,06,060/-

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Hence, the claimants are entitled for enhanced compensation of `2,60,060/- with interest @ 6% per annum. The appeal deserves to be partly allowed and I.A.1/2021 deserves to be disposed of accordingly. Hence, the following:

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ORDER

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The appeal is partly allowed.

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Claimant is held entitled to enhanced compensation of

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`2,60,060/- with interest thereon at 6% p.a., from the date of petition till its realization.

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Respondent No.2 – insurer shall deposit the aforesaid compensation before the Tribunal on adjusting the amount already deposited, if any, within four weeks from the date of receipt of copy of this order.

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On such deposit, the Tribunal shall digitally release the said amount to the claimant on furnishing required documents.

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I.A.1/2021 stands disposed of.

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Registry shall transmit the records to the Tribunal

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forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE