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MFA.1431/2016 1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2022 BEFORE
THE HON’BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
MFA NO.1431 OF 2016 (MV) BETWEEN:
MR. PURUSHOTHAM S/O LATE VEERAPPA POOJARY AGED ABOUT 40 YEARS R/AT MITHAKATTE HOUSE SAJIPAMUNNUR VILLAGE AND POST BANTWAL TALUK PRESENTLY RESIDING AT C/O ANANDA POOJARY KOTIMURA, KULSHEKAR MANGALORE, D.K. DISTRICT PIN-575006. …APPELLANT
(BY SRI G RAVISHANKAR SHASTRY, ADVOCATE)
AND: 1 . M/S. TRANS CORPORATION OF INDIA OFFICE AT JUMMA MASJID BUILDING MAIN ROAD, PUTTUR, D.K. DISTRICT PIN-574201.
2 . NATIONAL INSURANCE COMPANY LTD. OFFICE AT 1ST FLOOR, PALIKA BHAVAN RING ROAD SECTOR-2 K. PURAM ROAD, NEW DELHI REPRESENTED BY ITS DIVISIONAL MANAGER PIN-110002. …RESPONDENTS
(NOTICE TO R1 IS DISPENSED WITH, VIDE ORDER DATED 12.04.2018; SMT. H.R. RENUKA, ADVOCATE FOR R2)
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.08.2015 PASSED IN MVC NO.611/2011 ON THE FILE OF III ADDITIONAL DISTRICT JUDGE & MEMBER, MACT-IV, D.K., MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.11.2022 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed against the judgment and award dated 27.08.2015 passed in M.V.C.No.611/2011 by the court of III Additional District Judge and Motor Accident Claims Tribunal-IV, D.K., Mangalore ('the Tribunal' in short).
For the sake of convenience, the ranks of the parties will be referred to as stood before the Tribunal.
Facts in brevity is, on 26.10.2010 the petitioner was riding the motor cycle bearing No.KA- 19/EB-1775 from Mangaluru towards B.C.Road, at about 4.30 p.m., near Padil Junction at Padil on
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N.H.48, a Tanker Lorry bearing No.KA-21-6531 came in a rash and negligent manner and dashed against the motor cycle of the petitioner from behind, due to the impact, he has suffered severe injuries and he was shifted to Tejasvini Hospital, he was under hospitalization till 27.12.2010. He was laid-up for eight months and he has spent Rs.7 lakhs towards treatment and for future treatment he requires minimum Rs.2 lakhs. The petitioner was aged 35 years old, he was doing Aluminium Fabrication Work under the name and style ‘Sharada Industries’ and was earning Rs.20,000/- to Rs.25,000/- per month. Claiming compensation of Rs.20 lakhs, he has moved the Tribunal. The Tribunal after considering the materials and evidence, passed the impugned judgment awarding Rs.5,25,000/- with interest @ 6% per annum.
Urging that the Tribunal has not considered the nature of injuries, money spent towards
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treatment, percentage of disability so assessed was on the lower side, compensation towards laid-up was not properly considered, no compensation was awarded separately towards attendant charges, conveyance charges, food and nourishment and the medical bills have been doubted by the Tribunal, the income of Rs.5,500/- alone taken inspite of the petitioner placing evidence, hence, the petitioner is before this court.
Heard the arguments of Sri.Ravishankar Shastry, learned counsel for the petitioner and Smt.H.R.Renuka, learned counsel for respondent No.2/insurer.
Learned counsel for the petitioner has submitted that inspite of the petitioner placing evidence regarding income of the petitioner, expenses incurred towards treatment, medical evidence regarding disability, the Tribunal is not magnanimous in accepting the claim of the
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petitioner, but it has doubted the veracity of the medical bills and made the discount contrary to the evidence. The accident was of the year 2010, instead of taking the income at Rs.10,000/- taken only Rs.5,500/- per month. Hence, he prays to consider the medical bills, income and also higher disability and sought for enhancement of compensation.
On contrary, counsel for respondent No.2 submitted that the Tribunal has properly analysed the medical bills produced at Exs.P10 series and Ex.P12 series, 13 and 14 wherein the petitioner has included the inpatient bills and wants to make windfall by means of medical expenses only, though such expenses was not incurred. Under such circumstances, it is natural for the Tribunal to doubt the medical bills and allowing discount. Learned counsel also submitted that the petitioner is not the income-tax assessee, he has no proper proof of
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income and therefore, the Tribunal has taken the notional income of the petitioner. She submits that the compensation should have been assessed properly under different heads and though the medical evidence points out disability, the petitioner is still running his business and therefore, the Tribunal is right in not assessing the loss of income due to disability and supported the impugned judgment, but fair enough in submitting that small amount of enhancement may be made. 8. Having heard the learned counsel for both parties, I gave my anxious consideration to the materials placed before the court.
There is no dispute as to the accident, involvement of the vehicles in question, injuries sustained by the petitioner, treatment taken and entitlement of the petitioner to claim compensation. The major dispute is the medical expenses for which this court need to make assessment. The petitioner
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was under hospitalization at Tejasvini Hospital, Mangaluru for the injuries that he has sustained as noted in Ex.P8/wound certificate, such as, fracture of ulna, fracture of right clavicle, fracture of pubic rami with abdominal injuries with liver damage. As indicated in Ex.P9, he was under hospitalization for two months, underwent surgery and he is claiming medical expenses of Rs.5,23,115/- and hospital records have been produced by the Manager of Tejasvini hospital i.e., PW-3. 10. Having regard to the findings recorded by the Tribunal and also the arguments canvassed, I have carefully scrutinized the medical bills, particularly Ex.P10 series which are the bills of Tejasvini hospital amounting to a sum of Rs.2,74,575/-, which is paid by the petitioner, Ex.P12 series is the medicinal bills amounting to Rs.1,94,640/- and Exs.P11 and P14 are the bills which has been paid to the treating doctors. On
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verification of Exs.P10 and P12, the fee paid towards professional charges of the doctor has not been included. Hence, a sum of Rs.53,900/- has to be considered as professional charges to the doctors. Ex.P12 series are the medical bills amounting to Rs.1,94,640/-. There are certain pharmacy slips issued and medicines were dispensed inside the hospital amounting to Rs.1,00,831/- as pharmacy bills. The pharmacy bills issued by the hospital at the time of discharge has been added to 238 medical bills. Hence, out of Rs.1,94,640/-, Rs.1,00,831/- has to be deducted. If that is so, the total expenses incurred by the petitioner as inpatient charges come to Rs.2,74,575/- + Rs.93,809/- + Rs.53,900/- = Rs.4,22,284/-. This is the actual medical expenses incurred by the petitioner during hospitalization. Hence, the reasons recorded by the Tribunal is not satisfactory for holding so much of deduction, which is contrary to the evidence on record.
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PW-2/Dr.Mohan K. is the Medical Officer of Tejaswini hospital, he has explained in his evidence that he was assisting Dr.M.Shantharam Shetty, Senior Consultant Orthopaedic Surgeon and he speaks about the hospitalization of the petitioner, surgery undergone and amount paid towards treatment and also Ex.P16/the disability certificate assessed by Dr.Shantharam Shetty with reference to the fractures and according to him, the petitioner had suffered 15% of total permanent disability. 12. It is pertinent to note that from Ex.P16 and also the evidence of PW-2, there was no assessment of disability for the abdominal injuries suffered by the petitioner. Position of the petitioner could be seen in the photographs at Ex.P17 where he had undergone abdominal surgery for liver damage. To support this, petitioner has relied upon the evidence of PW-4/Dr.B.K.Shivaprasad Rai, Professor of Surgery, KMC Hospital, Mangalore. According to
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him, injury on the abdomen has been operated, post-operative period of the petitioner was prolonged with contaminated wound and his anterior abdominal wall has become very weak. There is also damage to the liver and in this regard, the petitioner has to avoid doing strenuous work and he has got a severe problem due to abdominal surgery. Hence, his evidence is very crucial which has not been considered by the Tribunal. Thus, in addition to Ex.P16, assessing 15% of disability, abdominal injury and the liver damage, one has to assess additional disability of 5%. Thus, the total disability suffered by the petitioner on account of the fractures and abdominal injury will be 15+5%=20% of his earning capacity. 13. Petitioner was under hospitalization for 63 days as pointed out by the medical records which are made available. The petitioner was aged 35 years, though he claims that he was earning Rs.20,000/- to
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Rs.25,000/- salary per month, having regard to the accident of the year 2010, the Tribunal has taken the income of the petitioner at Rs.10,000/- per month. Having regard to his age, avocation and earning capacity, I am not persuaded by the submission made by the learned counsel for the petitioner that it should have been taken minimum of Rs.20,000/-, but Rs.10,000/- taken is just and proper. Before proceeding for assessment of compensation, let me recap the compensation awarded by the Tribunal. Sl. No. Particulars Amount in (Rs.) 1. Pain and suffering 1,00,000/-
Medical expenses 2,75,000/- 3. Food and conveyance during treatment period 50,000/- 4. Loss of income during treatment period (Rs.10,000/-x5 months) 50,000/- 5. Loss of future amenities 50,000/-
TOTAL 5,25,000/-
The Tribunal has awarded compensation of Rs.1,00,000/- towards pain and agony and in the
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circumstances of the case, it is just and proper and it has to be maintained. As discussed above, the petitioner is entitled to claim medical expenses of Rs.4,22,284/-. Towards food and nourishment, he has produced Ex.P13/the bill paid to canteen at Rs.9,450/- and in addition to it, Rs.10,000/- is added, it will come to Rs.19,450/-. The nature of injury apart from two months’ hospitalization keeps the petitioner laid up for another two months, for which attendant charges shall also be paid at Rs.10,000/- per month, i.e., Rs.40,000/-. If the nature of injuries and fractures is seen, it can be said that it made the petitioner to travel around many hospitals. Hence, he is entitled for conveyance charges at Rs.20,000/-. The petitioner was laid up for minimum six months due to abdominal injury, hence, loss of income during laid-up period is assessed at Rs.60,000/-. The nature of injuries made the petitioner to suffer and loss of amenities is assessed by the Tribunal at Rs.50,000/- is
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maintained.
The petitioner has to undergo treatment for future because of liver damage and also surgery undergone for the fractures. Hence, future medical expenses has to be assessed at Rs.50,000/-. 15. As regarding loss of income due to disability is concerned, the petitioner has sustained 20% of whole body disability, his income was taken at Rs.10,000/- per month, for his age of 35 years, the applicable multiplier is ‘16’ and if it is calculated, it comes to Rs.3,84,000/- (Rs.10,000/- x12x16x20%). Thus the petitioner is entitled to compensation under following heads: Sl. No. Particulars Amount in (Rs.) 1. Pain and suffering 1,00,000/-
Medical expenses 4,22,284/- 3. Food and nourishment charges 19,450/- 4. Attendant charges
40,000/- 5. Conveyance charges 20,000/-
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Loss of income during treatment period (Rs.10,000/-x6 months) 60,000/- 6. Loss of future amenities 50,000/- 7. Future medical expenses 50,000/- 8. Loss of income due to disability 3,84,000/-
TOTAL 11,45,734/-
Accordingly, the petitioner is entitled to total compensation of Rs.11,45,734/- as against Rs.5,25,000/- awarded by the Tribunal, thereby he is entitled to enhanced compensation of Rs.6,20,734/- rounded off to Rs.6,21,000/-, it is just compensation in the facts and circumstances of the case.
In the result, I pass the following order:
The appeal is hereby allowed in part. The impugned judgment is modified accordingly.
The appellant/petitioner would be entitled for enhanced compensation of Rs.6,21,000/- along with interest at the rate of 6% per annum on the enhanced compensation excluding interest on future
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medical expenses i.e., he is entitled to interest on Rs.5,71,000/- from the date of petition till its realization.
The respondents are directed to satisfy the award within a period of eight weeks from the date of receipt of a certified copy of this judgment.
The amount in deposit, if any, shall be transmitted to the Tribunal for disbursal in terms of the appeal award.
Sd/-
JUDGE
KNM/-