Yallajirao vs Baburao and Others

P.D. Waingankar, J.—Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant/claimant has preferred this appeal under Section 273(1) of M.V. Act.

The facts which gave rise to this appeal are that:--

"On 17.3.2004, the claimant was proceeding towards Pune by Maruthi 800 car bearing No. KA-22/Z-1616 from Belgaum. On way, he met with an accident as the car went and dashed against the road divider. The claimant sustained multiple grievous injuries, for which he was treated in Dr. Milind G. Kulkarni hospital at Miraj as inpatient. He underwent number of surgeries. He spent substantial amount for his treatment. He lost his earnings. Even after specialised treatment, he has suffered disability. Therefore, he filed claim petition under Section 166 of M.V. Act claiming compensation of Rs. 20.00 lakhs. The claim petition was opposed by the insurer of the car -Oriental insurance company. It came up for consideration before the tribunal. The tribunal by the judgment and award dated 14.9.2009 in MVC No. 1584/2005 awarded a total compensation of Rs. 6,95,000/- and directed the Insurance Company to deposit the compensation amount. Aggrieved by the quantum of compensation awarded by the tribunal, this appeal is preferred."

I have heard both the learned counsel appearing for the claimant and the respondent insurance company.

Upon hearing the arguments and upon consideration of the material on record, the point that arises for my determination is:--

"Whether the compensation awarded by the tribunal is just and reasonable?"

It is evident from the submissions made by both the learned counsel appearing for the appellant and the respondent insurance company that the accident as such is not in dispute. It is also not in dispute that the accident occurred on account of rash and negligent riding of the maruthi car by its driver and in the said accident, the claimant sustained grievous injuries, for which, the claimant has been undergoing treatment even now. Even after the disposal of the claim, by order dated 14.9.2008, the claimant underwent surgeries for which he has spent substantial amount, which made him to produce the bills as additional documents in this appeal alongwith an application under Order 41 Rule 27 of IPC at I.A. No. 1/13 and I.A. No. 1/14 on two different dates. Though the claimant filed two applications at I.A. No. 1/13 and I.A. No. 1/14, during the course of arguments, the learned counsel for the appellant claimant has not pressed I.A. No. 1/14 and as such I.A. No. 1/14 is liable to be dismissed as not pressed. Alongwith I.A. No. 1/13 filed on 17.6.2013, the claimant has produced discharge card issued by Doctor G.S. Kulkarni of Fracture and Orthopedic Hospital, Miraj apart from cash memos dated 17.12.2012 for Rs. 50,000/- and cash memo for Rs. 83,000/- dated 18.02.2013. The cash memos were issued by Fracture and Orthopedic Hospital, Miraj in respect of operation charges, theatre charges, nursing charges, room rent, bed charges, etc., Both cash memos have been duly signed by Dr. G.S. Kulkarni, Fracture & Orthopaedi Hospital, Miraj. On comparison of both the cash memos with the discharge card, it is noticed that after disposal of this claim by the Tribunal, he was admitted on 7.12.2012 and discharged on 17.12.2102. During the said period on 10.12.2012, he underwent surgery for removal of implants+ Biofilam rimming+antibiotic impregnated nail insertion + beads insertion(5x1, 6x 1, 2x1, 3x1,)for C/o. infected rt. subtrocanteric femur fracture will nail in situ under S.A. He was again admitted on 29.01.2013 and discharged on 19.02.2013. On 07.02.2013 he underwent implant removal(antibiotic impregnated nail) + CRIF with synthes femur ILN(36x 11) + beads insertion (3x1, 7x1) under SA for c/o infected rt. subtrochantric femur fracture with nail in situ. Thus for his admission on two occasions and the surgeries he underwent during the period of hospitalisation, he was charged Rs. 50,000/- for his first admission and Rs. 83,000/- for his second admission. The discharge card and two cash memos produced with I.A. No. 1/2013 are marked as Exs. P-11, P-12 and P-13. As such, I have no reason to doubt the veracity of both the bills produced by the claimant. As such, the application at I.A. No. 1/13 is allowed. The claimant is entitled to Rs. 1,33,000/- towards medical expenses.

Learned counsel for the appellant would argue that the amount awarded by the tribunal under other heads is on the lower side. In the light of submissions made, I have perused the material on record and I am of the considered view that except the amount awarded under the head ''pain and suffering'' and the ''loss of future earnings'', the compensation awarded under all the heads is reasonable and does not call for interference. Since the claimant had sustained closed fracture Rt. subtronchanteric femur and fracture shaft femur left and the multiple surgeries, that he underwent, an amount of Rs. 50,000/- would be just compensation as against Rs. 30,000/- awarded by the tribunal under the head ''pain and suffering''. It is seen from para 15 of the judgment, the tribunal has committed an error in calculating the amount awarded under the head future loss of earning on account of disability'' as if it is a death case. The tribunal has taken the disability of the whole body as 25%. The income of the claimant as Rs. 8,000/- p.m. and the age of the claimant as 57 years and calculated the future loss of earnings to the tune of Rs. 96,000/- which is not correct. Therefore, it requires to be rectified by taking the income at the rate of Rs. 8,000/- p.m. and the disability of the whole body at 25% and the appropriate multiplier ''9'' having regard to the age of the claimant as 57 years at the time of accident. The total ''loss of future income on account of disability'' comes to Rs. 2,16,000/- (Rs. 8,000/- x 12 x 9) as against Rs. 96,000/- awarded by the Tribunal.

Thus the claimant has been awarded enhanced compensation under the following heads:--

Thus the appellant-claimant has been awarded enhanced compensation of Rs. 2,73,000/- over and above the compensation awarded by the tribunal together with 6% interest therein from the date of petition till the date of realisation.

Accordingly, I pass the following order-

"Appeal is allowed-in-part. The judgment and award dated 14.9.2009 in MVC NO.1584/2005 on the file of FTC-IV, MACT, Belgaum stands modified. The appellant-claimant is awarded enhanced compensation of Rs. 2,73,000/- over and above the compensation awarded by the tribunal together with 6% interest thereon from the date of petition till the date of realisation."

The respondent insurance company is directed to deposit the enhanced compensation amount together with interest within a period of two months from the date of receipt of copy of this order.

In the event of deposit, the entire compensation may be released to the appellant-claimant.

Send the records to the lower Court forthwith.