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Judgment
B. Sreenivase Gowda
As these two appeals are arising out of a common judgment and award passed by the Tribunal, they are heard, admitted and with the consent of learned Counsel appealing for the parties they are taken up for final disposal. For the sake of convenience parties are referred to as they are referred to in the claim petitions before the Tribunal.
Brief facts of the case as pleaded in the claim petitions are:
That on 01.04.2005, when claimants were travelling in a car bearing registration No. KA 02 Z 1318 near 3rd cross. Chandra Layout due to rash and negligent driving of said vehicle by its driver it dashed to an electric pole, as a result, claimants had sustained injuries. Hence, they tiled two separate claim petitions before the MACT. Bangalore, seeking compensation of Rs. 4,00,000/- each. The Tribunal by impugned judgment and award has awarded compensation of Rs. 75,000/ and Rs. 2,12,000/- respectively with interest at 6% p.a.
As there is no dispute regarding occurrence of accident, negligence and liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is:
Whether quantum of compensation awarded by the Tribunal is just and proper or does it call for enhancement?
After hearing the learned Counsel for the parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and proper, it is on the lower side and therefore it is deserved to be enhanced.
In MFA 7525/2009 (MVC 2434/2008)
In this appeal the claimant is one Smt. Vidya Sujay, working as Stenographer in Small Cause Court. Bangalore. Immediately after the accident the claimant was shifted to Sharavathi Hospital and treated there as inpatient from 02.05.2005 to 03.05.2005. From there she was shifted to M.S. Ramaiah Hospital, admitted as inpatient from 03.05.2005 to 06.05.2005. CT Scan shows she had sustained multiple abrasion over face, wound below the lower lip and submandibular subluxation of C1 over C2, she was treated conservatively after discharge she has taken follow up treatment. Injuries sustained by her are evident from Out patient file Ex. P 19. Inpatient file Ex. P 20. X ray and CT Sean films Ex. P 21, Old and new CT Scan Ex. P 22, Recent X ray and Old CT Scan Ex. P 23 and Inpatient bill Ex. P 24 and also supported by oral evidence of the claimant and the doctor examined as P.Ws 1 and 4 respectively. PW 4 Dr. S. Ramachandra in his evidence has stated that he recently examined the claimant and found swelling and tenderness in the neck region, restriction of surgical movement of the spine and intermittent head age aggravated by noise, tension and work. He assessed 15% disability to whole body. In his cross examination he has stated there is no fracture of spinal column and there is subluxation of C-1 over C-2. Therefore functional disability could be taken as 10%.
Considering the nature of injuries a sum of Rs. 35,000/- is awarded towards pan and suffering as against Rs. 25,000/- awarded by the Tribunal.
The claimant has produced medical bills fur Rs. 17,656/-. She was treated as inpatient for 5 to 6 days in the hospital. Therefore, the Tribunal has rightly awarded Rs. 25,000/- towards medical and incidental expenses such as conveyance, nourishment and attendant charges and there is no scope for enhancement under this head.
As the claimant was working as a Stenographer in the Court of Small Causes, Bangalore, the Tribunal calculating the leave availed by her for treatment in terms of salary has rightly awarded Rs. 10,000/-towards loss of income during laid up period and there is no scope for enhancement under this head.
Considering the disability stated by the doctor and an amount of discomfort the claimant has to under go in her future life Rs. 25,000/- is awarded towards loss of amenities as against Rs. 15,000/- awarded by the Tribunal and Rs. 25,000/- is awarded towards permanent disability.
Thus, the claimant is entitled for the following compensation:
i)
Towards pain and suffering
Rs. 35,000/-
ii)
Towards Medical and Incidental expenses
Rs. 25,000/-
iii)
Towards loss of income during Laid up period
Rs. 10,000/-
iv)
Towards loss of amenities
Rs. 25,000/-
v)
Towards permanent disability
Rs. 25,000/-
Total
Rs. 1,20,000/-
Less compensation awarded by the Tribunal
Rs. 75,000/-
Additional compensation
Rs. 45,000/-
In MFA 7022/2009 (MVC 2433/2008)
In this appeal the claimant is one Sri K.L. Kodandarama, aged about 69 yea Rs. Immediately after the accident the claimant was shifted to Sharavathi Hospital and treated there as inpatient from 01.05.2005 to 03.05.2005. From there he was shifted to M.S. Ramaiah Hospital, admitted as inpatient from 03.05.2005 to 10.05.2005 where it was diagnosed that he had sustained C-5 burst fracture, he was treated conservatively after discharge he has taken follow up treatment. Injuries sustained by him are evident from wound certificate Ex. P 5, discharge summaries Ex. P 6 & P 7, Out patient file Ex P 16. Inpatient file Ex P 16. X ray Ex. P 18 and also supported by oral evidence of the claimant and the doctor examined as P.Ws 1 and 4 respectively. PW 4 Dr. S. Ramachandra in his evidence has stated that he recently examined the claimant and found swelling and tenderness in Cervical region of the claimant, generalized weakness and wasting of muscles all over the body, he cannot get up on his own and is wheel chair bound, he basically depends upon his attendant for his daily needs, he is non ambulant he has difficulty in moving all his limbs, the range of movement of cervical spine is restricted. He assessed 49% disability 10 whole body.
Considering the nature of injuries Rs. 60,000/- is awarded towards pain and suffering as against Rs. 50,000 awarded by the Tribunal.
The claimant: has produced medical bills for Rs. 32,779/-. He was treated as inpatient for 10 days in the hospital. Therefore, the Tribunal has rightly awarded Rs. 58,000/- towards medical and incidental expenses such as conveyance, nourishment and attendant charges and there is no scope for enhancement under this head.
The claimant claims to be earning Rs. 10,000/- per month by working in a Real Estate Business. But it is not supported by any document. In the absence of proof of income, considering his age, year of accident the Tribunal has rightly his income at Rs. 4,000/- per month and awarded Rs. 24,000/- towards loss of income during laid up period and there is no scope for enhancement under this head.
As per Ex. 16 OPD record it was found that claimant was able to ambulate with minimal support and he was found able to ambulate without support on 04.07.2005 and he was suffering from rheumatoid arthritis over last ten years.
Considering the disability stated by the doctor at 49% to whole body and on the recent examination report, functional disability could be taken at 35%. The multiplier applicable to his age group is 5. If so, loss of future income works out to Rs. 84,000/- ( Rs. 4,000/- x 35% x 12 x 5) and it is awarded as against Rs. 30,000/- awarded by the Tribunal towards permanent disability.
Thus, the claimant is entitled for the following compensation:
i)
Towards pain and suffering
Rs. 60,000/-
ii)
Towards Medical and Incidental expenses
Rs. 58,000/-
iii)
Towards loss of income during Laid up period
Rs. 24,000/-
iv)
Towards loss of amenities
Rs. 50,000/-
v)
Towards future loss of income
Rs. 84,000/-
Total
Rs, 2,76,000/-
Less compensation awarded by the Tribunal
Rs. 2,12,000/-
Additional compensation
Rs. 64,000/-
Accordingly the appeals are allowed in part and the judgment and award of the Tribunal is modified to the extent stated herein above. The claimants are entitled for an additional compensation of Rs. 45,000/-and Rs. 64,000/- respectively with interest at 6% p.a. from the date of claim petition till the date of realisation. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. The additional compensation of Rs. 45,000/- with interest awarded in MFA 7025/2009 is ordered to be released in favour of the claimant and from Rs. 64,000/- awarded in MFA No. 7022/2009, Rs. 50,000/- with proportionate interest is ordered to be invested in F.D. in the name of the claimant in any nationalised/scheduled bank or post office for a period of THREE years with an option to withdraw interest periodically and remaining amount is ordered to be released in his favour.
No order as to costs.