Mr.Jagadish Vs Mr.K.M.Aboobakkar

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 08.02.2016 PASSED IN MVC NO.634/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, MANGALURU, D.K. AND ETC.

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IN MFA NO.7087/2015:

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BETWEEN:

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MISS. MAMATHA D/O SUNDARA POOJARY AGED ABOUT 24 YEARS R/AT SUJIR KODANGE PUDU POST, BANTWAL TALUK D.K. PETITIONER IS TOTAL BEDRIDDEN AND SHE IS NOT ABLE TO SPEAK PROPERLY HENCE REPRESENTED BY HER NEXT FRIEND AND NATURAL GUARDIAN FATHER MR. SUNDARA POOJARY S/O MONAPPA POOJARY AGED ABOUT 61 YEARS R/AT SUJIR KODANGE PUDU POST, BANTWAL TALUK D.K. DISTRICT.

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...APPELLANT

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(BY SRI. RAVISHANKAR SHASTRY, ADVOCATE)

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HC-KAR

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AND:

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MR. K.M. ABOOBAKKAR S/O MOHAMMED, ADULT, R/AT KANIYOOR HOUSE, AMMUNJE , BANTWAL, BANTWAL TALUK, D.K. - 574219.

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UNITED INDIA INSURANCE CO. LTD., K.S. RAO ROAD, OPP: POPULAR BUILDING, MANGALURU TALUK, D.K. – 575003 REP. BY ITS BRANCH MANAGER

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...RESPONDENTS

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(BY SRI. ROHITH GOWDA, ADVOCATE FOR R1; SRI. RAVISH BENNI, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 15.05.2015 PASSED IN MVC NO.626/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALURU AND ETC.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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HC-KAR

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ORAL JUDGMENT

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In MFA No.4703/2016

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This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 08.02.2016 passed in MVC No.634/2014 by the Motor Accident Claims Tribunal and Principal Senior Civil Judge, Mangaluru, D.K for enhancement the compensation.

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Heard the arguments of learned counsel appearing

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for both the sides.

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The status of the parties before the Tribunal is retained for the sake of convenience.

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It is the case of injury. The injured claimant aged 32 years at the time of accident filed claim petition claiming compensation of Rs.7,00,000/- with interest at 9% p.a. The Tribunal considering both oral and documentary evidence placed on record has granted compensation of Rs.3,27,008/with interest at the rate of 6% p.a. from the date of the claim petition till its realization. Being aggrieved by the said

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HC-KAR

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judgment and award, the present appeal is preferred by the petitioner for enhancement of compensation.

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The learned counsel appearing for the appellant

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mainly contend that the petitioner had sustained multiple injuries, he was inpatient from 07.02.2014 to 19.02.2014. Injury No.6 was grievous in nature, as such an amount of Rs.60,000/- is awarded by the Tribunal towards ‘Pain and Sufferings’ and the same is on lower side. He was doing coolie work and earning an amount of Rs.15,000/- per month and also filed salary certificate to that effect. But the Tribunal wrongly taken his income as Rs.6,000/- per month. As per Ex.P15 – disability certificate, he suffered 30% permanent disability due to visual impairment and also examined PW4 and as per Ex.P16, he suffered 25% permanent disability and also examined PW3 but the Tribunal awarded meager amount under the head of loss of future income on the ground that disability can be reduced by making surgery and it is opposed to medical evidence. The amount granted for ’Loss of Amenities’ is also meager as there was a disfigurement of the face and it can be seen from Ex.P21-photograph. Lessor amount was granted

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HC-KAR

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under ‘Future Medical Expenses’. The cost of future surgery is mentioned as Rs.2,00,000/- by the doctor and Exs.P13 and P14 are also filed by them showing cost future surgery. Rate of interest is also on lower side. Therefore, requested for enhancement.

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On perusal Ex.P4-wound certificate, it discloses that

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the petitioner has sustained following injuries:

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i. Laceration with loss of tissue on the forehead;

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ii. Lacerated injuries over right eye brow area and below the right eye;

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iii. Nasal bleed;

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iv. Lacerated injury from right forehead;

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v. Over bridge of nose to left side of face, laceration 3 x 1 cm over right chest;

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vi. Communited fracture of lateral wall of right orbit, fracture bilateral lumina. Multiple fracture bilateral nasal bones, nasal septum, haemisinus bilateral ethmoidail air cells, fracture of anterior medial walls of bilateral maxillary sinus, lateral wall of with haemosinus.

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The petitioner was hospitalized for 13 days and

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injuries were grievous in nature. Petitioner examined the doctors as PW2 to PW4 to substantiate his case. Ex.P11 is the

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HC-KAR

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discharge summary. The petitioner has incurred Rs.92,618/towards medical expenses but Rs.30,000/- was reimbursed from Family Health Scheme and Rs.5,000/- discount was given by them. Thus, he paid Rs.57,618/- at the time of discharge. But Tribunal granted Rs.59,008/- towards ‘Medial Expenses’ and it needs no interference.

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The learned counsel for the petitioner contended that as per the disability certificate issued by PW3 and PW4, he sustained 25% permanent disability and 30% visual disability and 25% disability due to facial injuries.

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But the counsel for respondent No.2 relies upon

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cross-examination of PW4 in which it was stated that there is no disability to the eye sight of PW1 and retina and eye ball are intact and there is no surgery required and deficiency of eye lid can be rectified by future surgery by spending a sum of Rs.10,000/-. It was also stated that there was no functional disability. Petitioner was aged 32 years at the time of the accident doing centering work and earning Rs.15,000/- per month and also filed a salary certificate to substantiate the

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HC-KAR

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same but not examined the person who issued the said certificate on his behalf.

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Petitioner met with an accident in the year 2014. As per the guidelines of Karnataka State Legal Services Authority, his income has to be taken as Rs.8,500/- per month but the Tribunal has taken Rs.6,000/- per month. Though visual disability of 30% was assessed by the Medical Board but said certificate is not issued by PW4 but Member of the Medical Board is not examined to substantiate the said disability. Petitioner still sustained 25% disability due to facial injuries. This Court finds it reasonable to take 1/3^rd of 25% of disability for the purpose of calculation which comes at 8.3%. Therefore, ‘Loss of Future Income’ comes to Rs.1,35,456/- (8500 x 12 x 16 x 8.3%).

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PW2 specifically stated that the face of PW1 is disfigured due to nasal bone fracture and it requires reconstruction by way of surgery and surgery expenses costs Rs.2,00,000/-. Therefore, this Court also finds it reasonable to

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grant Rs.2,00,000/towards ‘Future Medical Expenses’. Towards Medical expenses, the Tribunal already granted an

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HC-KAR

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amount of Rs.59,008/- and it needs no interference. Under the head of ‘Pain and Sufferings’ the Tribunal has granted an amount of Rs.60,000/- and it also needs no interference. The Tribunal has granted an amount of Rs.25,000/- towards ‘Loss of Amenities’ and it is also confirmed. The amount of Rs.15,000/- was granted for ‘Conveyance, Food and Attendant’ and the same is enhanced to Rs.45,000/-. As he was doing labour work, he might not have attended to his work at least for four months. Therefore, “Loss of income during laid up period’ is enhanced to Rs.34,000/- instead of Rs.18,000/-.

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Thus, in all, award of compensation passed by the

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Tribunal is modified as under:

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Sl. No.	Particulars	Award granted by Tribunal	Award enhanced by this Court
1	Pain and sufferings	60,000.00	60,000.00
2	Medical expenses	59,008.00	59,008.00
3	Conveyance, food and attendant	15,000.00	45,000.00
4	Loss of amenities	25,000.00	25,000.00
5	Loss of income during laid off period	18,000.00	34,000.00
6	Future medical expenses	1,00,000.00	2,00,000.00
7	Loss of marriage prospectus	50,000.00	50,000.00
8	Los of future income	---	1,35,456.00
	Total	3,27,008.00	6,08,464.00

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HC-KAR

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Hence, the compensation is enhanced from Rs.3,27,008/- to Rs.6,08,464/- along with interest at 6% per annum from the date of petition till the date of deposit.

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In the result, the following order is passed:

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ORDER

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i. Appeal is allowed.

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ii. The judgment and award dated 08.02.2016 passed in MVC No.634/2014 by the Motor Accident Claims Tribunal, Bangalore is modified;

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iii. The claimant is entitled to a sum of Rs. 6,08,464 /- along with interest at 6% per annum from the date of petition till the date of realization as against Rs.3,27,008/-.

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iv. Respondent No.2-Insurance Company is directed to deposit the said amount within one month from the date of this order.

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HC-KAR

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v. Appellant/petitioner is permitted to withdraw the entire amount along with interest accrued on the same.

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vi. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vii. Draw award accordingly.

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In MFA No.7087/2015

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This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 15.05.2015 passed in MVC No.626/2014 by the Principal Senior Civil Judge and MACT, Mangaluru, for enhancement the compensation.

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Heard the arguments of learned counsel appearing for both the sides.

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The status of the parties before the Tribunal is retained for the sake of convenience.

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HC-KAR

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It is the case of injury. The petitioner met with an accident on 07.02.2014. The injured claimant aged 23 years at the time of accident filed claim petition claiming compensation of Rs.30,00,000/- with interest. The Tribunal considering both oral and documentary evidence placed on record has granted compensation of Rs.11,37,800/- with interest at the rate of 6% p.a. on Rs.11,17,800/- from the date of the claim petition till its realization. Being aggrieved by the said judgment and award, the present appeal is preferred by the petitioner seeking enhancement of compensation.

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The learned counsel for the petitioner contended that petitioner sustained four fractures and multiple facial laceration periorbital oedema right 3^rd cranial nerve palasy CT scan and she took treatment for a period of 50 days and later she was under follow up treatment. The amount granted under conveyance, nourishment charges is on the lower side. She was aged 23 years and working as Accounts Manager at Chiramith Precision India and she filed Ex.P15-Salary certificate showing that she was earning Rs.6,050/- per month and also examined PW3 and muster roll was produced at Ex.P28. But

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HC-KAR

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the Tribunal has taken her income as Rs.5,500/- per month and it is on lower side. The Tribunal ought to have granted loss of income for 10 months as she was completely bedridden. The disability was assessed by PW2 at the rate of 75% but the Tribunal has taken 60% only and permanent disability of 100% ought to have been taken by the Trial Court since she is bedridden. The amount granted for loss of amenities, marriage prospectus and medical expenses are on the lower side. Rate of interest is also granted only 6%. Therefore, requested for enhancement of the compensation.

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The learned counsel appearing for respondents contend that the Tribunal considering both oral and documentary evidence placed on record rightly granted the compensation and it does not require enhancement.

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Admittedly, the petitioner was aged 23 years and working as an Accounts Manager in Chiramith Precision India but in view of the accident, she sustained multiple fractures and totally bedridden. As per the evidence PW2, the petitioner is suffering from quadriperesis, she was able to perform basis activities of daily living upper extremities (partially) needs

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HC-KAR

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assistance to get up from bed and she made to stand maintains balance for less than a minute and she needs considerable assistance to walk, slurred speck, right upper extremity, tone rear normal left distonic and pill rolling tremor right side upper motor neurone features than left side. On the basis of infirmities, petitioner has permanent total disability of 75%. Disability certificate is also filed as per Ex.P16.

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PW2 admitted in the cross-examination that he had seen the petitioner on 07.02.2014 i.e., on the date of accident and again he has examined the petitioner on 10.10.2014 for assessment of disability. Though she brought on stretcher for assessment of disability, but she was capable to answer the questions. As per medical evaluation for physical impairment and guidelines, he has assessed disability of 75%. The Tribunal observed that functional disability was not assessed by the doctor and accordingly, her functional disability was assessed as 60%. The said functional disability was assessed without any basis. Considering the evidence of PW2, this Court finds it reasonable to take her disability as 75% as assessed by the doctor considering the guidelines.

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HC-KAR

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The petitioner met with an accident in the year

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As per the guidelines of Karnataka State Legal Services Authority, her income has to be taken as Rs.8,500/- per month and multiplier is to be taken as 18. Therefore, the amount under the head of ‘Loss of Future Income’ on the basis of disability is to be calculated as Rs.13,77,000/- (8500 x 12 x 18 x 75 / 100).

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The petitioner got reimbursement of medical expenses under ESI scheme and the nominal amount of Rs.10,000/- was granted by the Tribunal and it needs no interference. Considering the nature of injuries sustained by her, an amount of Rs.2,00,000/- was granted towards ‘Pain and Agony’ and it needs no interference. This Court finds it reasonable to enhance the amount granted under ‘Loss of Amenities’ to Rs.50,000/-; ‘Conveyance and nourishment charges’ to Rs.50,000/and ‘Attendant charges’ to Rs.1,00,000/-. The amount granted for ‘Future medical expenses’ is only Rs.20,000/- but no records is placed showing the future medical expenses, therefore, it needs no interference.

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HC-KAR

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The petitioner aged 23 years and she was suffering

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from quadriperesis and she required assistance to walk and she had slurred speech and she totally bedridden. Therefore, this Court finds it reasonable to grant an amount for Rs.3,00,000/for ‘Loss of marriage prospectus’. The amount granted for ‘shortening of life span’ of Rs.50,000/- is also needs no interference.

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Thus, in all, award of compensation passed by the Tribunal is modified as under:

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Sl. No.	Particulars	Award granted by Tribunal	Award enhanced by this Court
1	Pain and agony	2,00,000.00	2,00,000.00
2	Medical expenses	10,000.00	10,000.00
3	Loss of income on the basis of disability	7,12,800.00	13,77,000.00
4	Shortening of life span	50,000.00	50,000.00
5	Loss of amenities, future happiness	25,000.00	50,000.00
6	Conveyance, nourishment charges	20,000.00	50,000.00
7	Attendant charges	50,000.00	1,00,000.00
8	Future medical expenses	20,000.00	20,000.00
9	Loss of marriage prospectus	50,000.00	3,00,000.00
	Total	11,37,800.00	21,57,000.00

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HC-KAR

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Hence, the compensation is enhanced from

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Rs.11,37,800/- to Rs.21,57,000/- along with interest at 6% per annum from the date of petition till the date of deposit.

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In the result, the following order is passed:

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ORDER

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viii. Appeal is allowed.

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ix. The judgment and award dated 15.05.2015 passed in MVC No.626/2014 by the Motor Accident Claims Tribunal, Mangaluru is modified;

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x. The claimant is entitled to a sum of Rs. 21,57,000 /- along with interest at 6% per annum from the date of petition till the date of realization as against Rs.11,37,800/-.

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xi. Respondent No.2-Insurance Company is directed to deposit the said amount within one month from the date of this order.

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HC-KAR

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xii. Appellant/petitioner is permitted to withdraw the entire amount along with interest accrued on the same.

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xiii. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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xiv. Draw award accordingly.

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Sd/(P SREE SUDHA) JUDGE

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SN

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List No.: 1 Sl No.: 25

Mr.Jagadish v. Mr.K.M.Aboobakkar

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Mr.Jagadish v. Mr.K.M.Aboobakkar

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