Sri Vikram a. Vs Divisional Controller

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.11.2012 PASSED IN MVC NO.663/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 3770/2013

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BETWEEN:

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DIVISIONAL CONTROLLER K.S.R.T.C. MANGALORE DIVISION

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HC-KAR

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BEJAI, MANGALORE 4 DK REP BY ITS MANAGING DIRECTOR KSRTC CENTRAL OFFICE K H ROAD BANGALORE-560027.

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...APPELLANT

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(BY SRI. D VIJAYAKUMAR.,ADVOCATE)

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AND:

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SRI VIKRAM A

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S/O ANANTHA PADMANABHA ADIGA

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AGED ABOUT 21 YEARS R/AT ATHIGARU HOUSE ARALASURALI POST THIRTHAHALLI TALUK SHIMOGA DISTRICT.

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THE ORIENTAL INSURANCE CO LTD JAYALAXMI MANSION, 2^ND FLOOR DR RAJAKUMAR ROAD 4^TH BLOCK, RAJAJINAGAR BANGALORE-560010 REP BY ITS DIVISIONAL MANAGER

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...RESPONDENTS

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(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R1

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SRI. R. GUNASHEKAR, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED

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HC-KAR

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29.11.2012 PASSED IN MVC NO. 663/2011 ON THEFILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT MANGALORE, D.K., AWARDING COMPENSATION OF RS.3,60,000/- WITH INTEREST @ 6% P.A. FROM THE ABOVE DATE OF PETITION TILL REALIZATION.

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

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CORAM: HON'BLE MR.JUSTICE D K SINGH and

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HON'BLE MR.JUSTICE B M SHYAM PRASAD

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD )

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These appeals are by the claimant and a Transport Corporation [KSRTC] in MVC No. 663/2011 on the file of the II Additional Senior Civil Judge and Member, MACT-VI, Mangaluru [for short, ' the Tribunal ']. The impugned Judgment and Award are dated 29.11.2012. The appeal by the Claimant is in MFA No. 8956/2013, and the appeal by the KSRTC

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is in MFA No. 3770/2013. The Tribunal has granted to the Claimant Rs.3,60,200/- along with interest at the rate of 6% per annum from the date of the petition till the date of deposit. The Insurer of the bus owned by the Transport Corporation is called upon to pay the compensation¹ .

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Compensation under different Heads	Amount (in Rs.)
Disability	1,94,400/-
Pain and Agony	35,000/-
Conveyance	20,800/-
Attendant charges and food & Nourishment	5,000/-
Medical expenses	70,000/-
Future Medical Expenses	30,000/-
Discomfort and Loss of Amenities	5,000/-
Total	3,60,200/-

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The Claimant has suffered injuries in a

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road accident on 08.03.2011 and was hospitalized

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1 The Claimant, the Transport Corporation and the Insurer, for reasons of convenience, are referred to accordingly .

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HC-KAR

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for 36 days. The Claimant has suffered head injuries and other fracture injuries when he met with this accident involving the Transport Corporation's bus. The Claimant was a pedestrian when hit by the Transport Corporation's bus. The Claimant has received initial and further treatment at M/s Unity Health Complex, Falnir, Mangaluru. The Transport Corporation has paid a sum of Rs.2,49,798/- directly to this Hospital towards medical expenses.

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The Claimant has suffered impairment of hearing and injuries in the eyes. Dr. Kishore Shetty [PW2], who has treated the Claimant, has issued a Certificate affirming that the Claimant has suffered a 100% disability in his right ear because he has lost his hearing in that ear. This is apart from the evidence of Dr. Jayaram Shetty [PW4], who has spoken about the injuries suffered by the Claimant in the eyes, and this witness has opined that the Claimant’s vision in both the eyes is retained, but the

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alignment of the eyeballs is lost and that would require a corrective surgery. This Doctor has also stated that the Claimant will have to incur a sum of Rs.30,000/- for this corrective surgery.

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If this is the evidence on the injuries suffered by the Claimant, the other evidence is also that he was an Engineering student pursuing his graduation in Electronics and Communications from M/s Srinivas Institute of Technology, Valachil, and that he was 21 years old at the time of the accident. The Claimant, in this appeal, contends that because he took a year more in completing his Engineering because of the injuries and he has lost hearing in an ear, he could not find himself employment as an Engineer and he is constrained to work as an Assistant in a Medical Shop.

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Sri Pundikai Ishwara Bhat, the learned counsel for the Claimant, relying upon this evidence and contentions, submits that the Tribunal should

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have taken a higher percentage of disability than 30% and computed loss of future earning capacity taking the income of the claimant commensurate with his qualification and not just Rs.3,000/- per month. The learned counsel also argues that:

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[a] the Claimant is a resident of Theerthahalli

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and that he and his family members had to travel repeatedly to Mangaluru for his treatment, but the Tribunal has awarded only a sum of Rs.20,800/towards conveyance and a further sum of Rs.5,000/towards attendant charges and food and nourishment.

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[b] there must be an increase in the compensation towards pain and agony, future medical expenses and loss of amenities because the claimant has not only lost hearing in one ear but has also suffered vision injuries in the eyes which have left him scarred affecting his marriage prospects.

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6. Sri D Vijayakumar, the learned counsel

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for the Transport Corporation, relying upon ExhibitR2, submits that the Corporation has remitted Rs.2,49,798/- to the Hospital on behalf of the Claimant to enable him to tide over the financial constraints that would inevitably be with the Insurance not paying any compensation. The learned counsel submits that the Claimant would have been entitled for this amount from the Insurer subject to repatriating the same amount to the Transport Corporation, and hence, the Tribunal's order must be modified directing the Insurer to pay Rs.2,49,798/-.

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As against these submissions, Sri

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Vasanth V Fernandis, the learned counsel for the Insurer, submits that the Tribunal, in the peculiar circumstances of this case, has rightly assessed the amount payable towards disability and other heads and there need not be any enhancement. The learned counsel, while inviting this Court’s attention

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to the Tribunal's finding that the Transport Corporation has paid the aforesaid amount on humanitarian grounds, submits that there cannot be any direction to the Insurer to pay Rs.2,49,798/- to the Transport Corporation.

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Thus, the questions presented by the

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Claimant and the Transport Corporation in their respective appeals are:

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[a] Whether there must be any enhancement in the compensation awarded by the Tribunal, and

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[b] Whether there must be a direction to the Insurer to pay a sum of Rs.2,49,798/to the Transport Corporation along with interest at 6%.

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This Court must opine that the

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unequivocal evidence is that the Claimant has suffered hearing loss in the right ear and he has also suffered injuries in the eyes resulting in

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misalignment of the eyeballs, which require him to undergo further surgery. These are substantial injuries, and these injuries are apart from the injuries in the leg. The Claimant is hospitalized for over 36 days. The Claimant must also undergo another surgery for correction in the alignment of his eyeballs. These injuries can leave an indelible mark, and a person's career can be marred by these injuries. These circumstances must be considered in granting just compensation but ensuring that there is no bonanza.

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The Claimant was studying to gain a degree in Electronics and Communication Engineering, and undeniably his education is affected though not completely affected. When these circumstances are holistically considered, this Court is of the view that the assessment of disability at 30% is just and proper, but then the claimant's income could not have been taken at Rs.3,000/- per month

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for determining the amount payable towards loss of earning capacity.

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In claim petitions arising out of accidents

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in the year 2011, the national income of an injured/victim is taken at Rs.6,500/- for reasons of consistency and uniformity in the grant of compensation. This income is as per the Schedule developed for settlements in Lok Adalath. This Court is of the opinion that this amount should be taken as the Claimant's income for computing the loss of future earning capacity. This Court must also grant loss of future prospects at 40% especially with the Claimant asserting that he could not find himself a job as an engineer and he is constrained to work as an assistant in a medical shop in his locality. If the loss of future earning capacity is thus computed, applying the multiplier of '18', it would be in a sum of Rs.5,89,680/- as against the sum of Rs.1,94,400/granted by the Tribunal .

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HC-KAR

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COMPUTATION OF EAR	LOSS OF FUTURE NINGS
Monthly Income	Rs.6,500/-
Annual Income	Rs.78,000/-
Addition towards Future prospects @40%	Rs.31,200/-
Annual Income with future prospects	Rs.1,09,200/-
Disability @ 30%	Rs.32,760/-
Loss of future earnings with multiplier of '18'	Rs.5,89,680/-

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The claimant is admittedly a resident of Theerthahalli, and he has received treatment in a hospital at Mangaluru. This would mean that he has incurred expenditure and that cannot be in a conservative sum of Rs.20,000/- or Rs.5,000/- as is awarded by the tribunal towards conveyance and attendant charges respectively. This Court, on a careful consideration, is of the opinion that the award under these two heads must respectively be Rs.50,000/- and Rs.25,000/-.

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HC-KAR

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The Tribunal has granted only a sum of Rs.5,000/- towards loss of amenities though there is loss of hearing in the right ear and also injuries in the eyes requiring surgery. This Court is of the view that appropriate compensation under this head would be in a sum of Rs.50,000/. The claimant would thus be entitled for a total compensation of a sum of Rs.8,49,680/- including enhancement in a sum of Rs. 4,89,480/- as against the compensation granted by the Tribunal in a sum of Rs.3,60,000/which is brought about by this comparative table.

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Disability [Loss of Future _earnings_because of disability]²	1,94,400/-	5,89,680/-
Pain and Agony	35,000/-	35,000/-
Conveyance	20,800/-	50,000/-
Attendant charges and food & Nourishment	5,000/-	25,000/-

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2 This Court has assessed Rs.5,89,680/- as the loss of future

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earnings .

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Medical expenses	70,000/-	70,000/-
Future Medical Expenses	30,000/-	30,000/-
Discomfort and Loss of Amenities [Loss of Amenities]	5,000/-	50,000/-
Total	3,60,200/-	Rs.8,49,680/-
Enhancement		Rs.4,89,480/-

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14. The Insurer contends that this Court must

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dismiss the Transport Corporation's appeal refusing the request for a refund Rs. 2,49,798/- remitted by the Corporation to the hospital on behalf of the claimant asserting that the payment is made on humanitarian grounds. This Court is not persuaded by this argument. The payment of Rs. 2,49,798/- on terms as mentioned in Exhibit R.2 is admitted, and this document reads that the amount is tendered to the hospital towards the expenditure incurred by the claimant.

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If Transport Corporation had not remitted

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this amount to the Hospital directly, the claimant has

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to pay either from his borrowings or otherwise. In that event, the claimant would be entitled to recover

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the same along with interest subject to indemnification by the Insurer. This Court, in the light of these circumstances, is of the view that the Insurer, which must pay compensation to the claimant must also indemnify the Transport Corporation for the expenses that is credited directly to the hospital on behalf of the Claimant. The Transport Corporation will be entitled to receive Rs. 2,49,798/- along with interest at the rate of 6% per annum. Hence, the following:

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ORDER

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[A] The claimant's appeal in MFA No.8956/2013 and the Transport Corporation's appeal in MFA No.3770/2013 are allowed in part.

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[B] The claimant's appeal in MFA No.8956/2013 is allowed granting to the Claimant a total compensation of Rs. 8,49,680/- [ including enhanced compensation of Rs.4,89,480/ - ] along with interest at 6% per annum from the date of the claim petition to the date of deposit.

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[C] the Transport Corporation's appeal in MFA No.3770/2013 is allowed directing the Insurer to pay a sum of Rs.2,49,798/to the Transport Corporation along with interest at 6% per annum from the date of the claim petition till the date of deposit.

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[D] It is observed that if there is any default in payment, the Transport Corporation will also be entitled to

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