Sri Vasantha Poojary Vs Sri Ananda Reddy

SRI VASANTHA POOJARY S/O PADMA POOJARY, AGED ABOUT 63 YEARS, NO.88, MOHANUM ENCLAVE, SRI VENKATESHWARA LAYOUT, NEAR A.E.C.S LAYOUT, A BLOCK KUDLU,BENGALURU-560 068

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…APPELLANT

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(BY SRI. SADASHIVA D, ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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SRI ANANDA REDDY MAJOR, PROP. VEERABADRA TRANSPORT CHINHALA MADIVALA VILLAGE, HUSKUR POST, ANEKAL TALUK, BANGALORE-560 100 (OWNER OF GOODS VEHICLE KA-51-6458)

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SRI SHANKRAPPA M S/O MUNIYAPPA, AGED ABOUT 37 YEARS, CHINTHALA MADIVALA VILLAGE, HUSKUR POST, ANEKAL TALUK, BANGALORE-560 100., (DRIVER OF GOODS VEHICLE KA-51-6458)

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THE MANAGER THE NEW INDIA ASSURANCE CO. LTD., BOMMANAHALLI BRANCH (670302) KIADB-COMPLEX 1ST FLOOR,

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HC-KAR

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HOSUR MAIN ROAD, BOMMASANDRA INDUSTRIAL LAYOUT, BOMMASANDRA, BANGALORE-562 158(KARNATAKA), REPRESENTED BY ITS MANAGER (POLICY NO.67030231140100005617) VALID BETWEEN 25.10.2014 TO 24.10.2015

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…RESPONDENTS

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(BY SRI. S V HEGDE MULKHAND, ADVOCATE FOR R3 NOTICE TO R1 & R2 IS DISPENSED WITH V/O DTD 27.6.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.03.2017 PASSED IN MVC NO.4256/2015 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, ADDITIONAL MACT, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FURTHER SUBMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The above appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 1.3.2017 passed in MVC No.4256/2015 by the IX Additional Small Causes and XXXIV ACMM, Member MACT-7 at Bengaluru (SCCH-7)² , wherein the Tribunal has partly allowed the claim petition and awarded a total compensation of `15,59,270/- together with interest at

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1 Hereinafter referred to as ‘Act of 1988’

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2 Hereinafter referred to as ‘Tribunal’

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HC-KAR

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9% pa. Being aggrieved, the present appeal is filed by the claimant seeking for enhancement of the compensation.

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The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only aspect that is required to be considered in the present appeal is with regard to the adequacy of the quantum of compensation awarded.

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Heard the submissions of learned counsel

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Sri D.Sadashiva, for the appellant/claimant and learned counsel Sri S.V.Hegde Mulkhand for respondent No.3-insurer.

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The Tribunal has recorded a finding that the claimant was aged 62 years as on the date of the accident by noticing that the date of birth of the claimant was 11.1.1955 and assessed the multiplier of ‘7’. However, having regard to the date of birth of the claimant and the accident having occurred on 22.4.2015, it is noticed that the claimant has completed 60 years and 4 months as on the date of the accident. Hence, the appropriate multiplier to be applied is ‘9’.

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HC-KAR

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It was averred that the claimant was a Company Secretary working in a private company earning 15,100/p.m., at the time of the accident. The employer of the claimant was examined as PW.6. The Tribunal, appreciating the material on record has assessed the monthly income of the claimant at 15,100/- p.m., which is just and proper.

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The claimant sustained head injury, which has resulted in the loss of right eye. He has also sustained comminuted fracture of the frontal bone. The claimant has also sustained fracture of the right radius and has undergone surgical procedure, whereunder internal fixation with lock of compression plate for the right radius mid shaft was done. The claimant was treated as an inpatient on various dates in various hospitals for a total period of 27 days. Elaborate medical evidence has been adduced, whereunder the claimant has examined 5 doctors as PWs.4, 7, 8, 10 and 11. PWs.4 and 7 are Orthopaedic doctors, PW.8 is an Ophthalmologist, PW.10 is a Cardiologist and PW.11 is a Neurologist. PW.4 has assessed the disability to the right hand of the claimant at 46% and the whole body disability at 15%. The Ophthalmologist – PW.8 has

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HC-KAR

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assessed the disability due to the right eye of the claimant at 30%. No disability has been assessed by PWs.7, 10 and 11 and the said doctors have deposed regarding the injuries sustained by the claimant and the treatment undergone.

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The Tribunal, upon re-appreciation of the medical evidence on record has assessed the whole body disability at 40%. It is the vehement contention of the learned counsel for the appellant that the disability has been assessed on the lower side.

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It is forthcoming from Sl.No.25 of Schedule I of the Employees Compensation Act, 1923 that the loss of earning capacity for loss of one eye is stipulated as 40%. Having regard to the fact that the claimant has lost the right eye and taking into consideration the disability assessed by PW.4, it is just and proper that the whole body disability be re-assessed as 55%.

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The Tribunal, while noticing the medical expenses has noticed that the claimant, apart from being treated as an inpatient, has undergone physiotherapy and Ayurvedic

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HC-KAR

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treatment at Udupi. The claimant had deposed that he received a sum of 1,71,882/- from his Medi Claim policy as medical reimbursement charges. The total medical bills produced (Exs.31-178 in Numbers) are for a total sum of 9,76,292/-. The Tribunal erred in deducting a sum of `1,71,882/that was received as reimbursement. For reimbursement of medical charges, the claimant would have submitted the original bills. Hence, the question of deducting the reimbursement of medical charges from the medical bills (Ex.P31) does not arise.

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Having regard to the nature of injuries sustained and the period for which the claimant was treated as an inpatient, as also taking into consideration the other treatments that are stated to have been taken by the claimant, it is just and proper that the medical expenses are re-assessed as `10,00,000/-.

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In view of the aforementioned, the compensation is re-assessed as follows:

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HC-KAR

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11.1 The compensation awarded by the Tribunal towards pain and suffering in a sum of 75,000/-, loss of income for laid up period for 5 months in a sum of 75,500/- and future medical expenses in a sum of `25,000/- are just and proper;

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11.2 Having regard to the nature of injuries sustained and the resultant disability, the loss of amenities is re-assessed as 60,000/- as against 50,000/- awarded by the Tribunal;

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11.3 The Tribunal has awarded compensation of 6,000/towards conveyance, 6,000/- towards attendant charges and `10,000/- towards food, nourishment and diet charges. It is just and proper that the compensation for food, nourishment, attendant charges and conveyance be re-assessed as

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`30,000/-;

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11.4 Loss of future earning due to disability is reassessed as (15,100/-x12x9x55%) 8,96,940/- as against `5,07,360/- awarded by the Tribunal.

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It is noticed that the Tribunal has awarded interest at 9% p.a. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award

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HC-KAR

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interest at the rate of 7% p.a., on the compensation as re-

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assessed/enhanced by this Court.

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Accordingly, the total compensation under various

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heads is re-assessed as follows:

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Sl. No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Loss of future income arising due to disability	507360.00	896940.00
2.	Pain and sufferings	75000.00	75000.00
3.	Loss of amenities of life	50000.00	60000.00
4.	Loss of income during laid up period	75500.00	75500.00
5	Actual medical expenses	804410.00	1000000.00
6	Future medical expenses	25000.00	25000.00
7	Conveyance	6000.00	30000.00
8	Attendant charges	6000.00
9	Food, nourishment and diet charges	10000.00
	Total	1559270.00	2162440.00

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Accordingly, the claimant is entitled for enhanced

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compensation of (21,62,440/- – 15,59,270/-) `6,03,170/-.

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HC-KAR

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In the result, the following:

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ORDER

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i) The appeal is allowed in part;

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ii) The judgment and award dated 1.3.2017 passed in MVC No.4256/2015 by the IX Additional Small Causes and XXXIV ACMM, Member MACT-7 at Bengaluru (SCCH-7), is modified to an extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered.

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iii) The claimant is entitled for enhanced compensation of 6,03,170/- with interest at 7% p.a., from the date of petition till its realisation in addition to the compensation awarded by the Tribunal;

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iv) Respondent No.3 – insurer shall deposit the said compensation together with accrued interest within a period of six weeks;

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v) Upon such deposit, the entire enhanced compensation together with interest accrued thereupon be disbursed digitally to the claimant in terms of the award;

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