In the matter of Sri Krishnegowda vs M/S Royal Sundaram Allianz … on 22 November, 2022(M.F.A.NO.668/2014 (MV-I)) presided by THE HON’BLE MR. JUSTICE H.P. SANDESH this m.f.a. is administered according to article 173 paragraph 1 the law on the law against the judgment and evaluation dated 30/08/2013 submitted in mvc no. 6834/2010 in the file of the 14th additional judge m. Judge m. R. M. Allowing the claim of the petition for compensation and seeking improvement
FACTS OF THE CASE
Although this matter is listed for admission today, it is taken up for final disposal with the concurrence of both the learned counsel.
Heard learned counsel appearing for the petitioner, learned counsel for respondent No. 1 – Insurance Company and learned counsel for respondent No. 4 – Insurance Company.
This appeal is filed by the plaintiff challenging the judgment and order dated 30.08.2013 passed in M.V.C.No.6834/2010 in the file MACT., Court of Small Causes, Bengaluru City (SCCH-10) (hereinafter referred to as the ‘Tribunal’ for short), disputing the amount of compensation.
The parties are listed in their original order before the Tribunal to avoid confusion and for the convenience of the Tribunal.
The Tribunal after considering the oral and documentary evidence considered 15% disability against the doctor’s evidence of 42% on whole body and took the income of Rs.5,000/- per month and awarded compensation of Rs.3,14,000/- on all heads. The lawsuit is therefore filed by the plaintiff, who is demanding an increase in compensation.
Learned counsel appearing for the petitioner/plaintiff would vehemently contend that the complainant suffered a community fracture of the proximal right tibia and fibula; comminuted fracture of the distal end of the femur of the right leg; fracture of the distal diaphysis of the radius of the right hand and fracture of the 2nd metacarpal and proximal phalanx of the second finger of the left hand and injuries to other parts of the body. The doctor who was assessed for disability categorically claims in his records that there is a decrease in the shortening of the right thigh muscle of the cough by 3 cm; a malunit fracture of the upper 1/3 of the tibia and fibula and a malunit fracture of the femur and evaluated the disability of the right lower limb at 70% and the right upper limb at 20%. Overall, he rated full-body disability 42% and functional disability 90%. The Tribunal erred in awarding a disability of 15% in respect of the four fractures and those fractures being a community fracture of the proximal right tibia and fibula; comminuted fracture of the distal end of the femur of the right leg; fracture of the distal diaphysis of the radius of the right hand and fracture of the 2nd metacarpal and proximal phalanx of the second finger of the left hand. The tribunal did not take into account the functional disability of 90% according to the doctor’s assessment. The compensation awarded by the Tribunal on other heads is also very modest. It therefore requires the intervention of this court. Learned counsel would also argue that in case of disability to the extent of 42% of whole body and 90% of functional disability, future prospects should be added.
On the other hand, the learned counsel appearing for the respondent-Insurer submits that although he sustained a community fracture of the proximal right tibia and fibula; comminuted fracture of the distal end of the femur of the right leg; fracture of the distal diaphysis of the radius of the right hand and fracture of the 2nd metacarpal and proximal phalanx of the 2nd finger of the left hand, the Tribunal assessed disability in the range of 15%. So it does not require any interference. Learned counsel would also submit that no material is placed before the Court with regard to income and the Tribunal has rightly taken the income of Rs.5,000/- per month.
THE HON’BLE MR. JUSTICE H.P. SANDESH OBSERVED THAT
As regards the amount of compensation, the Tribunal awarded a sum of Rs.70,000/- per head for pain and suffering. He was hospitalized in two periods for 28 days. Therefore, I find no error committed by the Tribunal in awarding the sum of Rs.70,000/- per head of pain and suffering.
The Tribunal awarded an amount of Rs.70,000/- towards medical expenses and other incidental charges which is not fair and reasonable. When awarding this compensation, the tribunal also added incidental expenses, the 28-day acceptance period was not taken into account. In respect of incidental expenses viz., food and board, transport and other related charges, which were valued at Rs.25,000 in total, an amount of Rs.95,000 is under this head.
The Tribunal awarded an amount of Rs.10,000/- for loss of equipment and future inconvenience. Having 42% impairment of the whole body and the injured being about 34 years of age at the time of the accident, the tribunal erred in awarding only Rs.10,000 on this head. of Rs.50,000/- as against Rs.10,000/- awarded by the Tribunal.
The Tribunal awarded an amount of Rs.10,000/- for loss of earnings during the period of treatment for a period of two months only. It was four fractures, it takes at least six months to unite the fractures and to rest. Hence, considering an income of Rs.5,500/- per month, it works out to Rs.33,000/- (5500×6) on this head.
The Tribunal awarded an amount of Rs.10,000/- per head towards future medical expenses. The doctor stated in his evidence that Rs 40,000 was required for the removal of the implants. In view of the 2010 accident, it is appropriate to award an amount of Rs.25,000/- as against Rs.10,000/-.
As regards loss of future earning capacity due to disability, the Tribunal awarded an amount of Rs.1,44,000/-. In view of the judgment of the Supreme Court in the case of ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT CORPORATION LTD. reported in 2020 SCC Online SC 601, future prospects must be added for more than 31% disability. Therefore, it is appropriate to add future prospects. After adding 40% to his income of Rs.5500/- it comes to Rs.7700/-. Considering a disability of 45% and a multiplier of 16, it works out to Rs.6,65,280. (5500 + 40% = 7700 x 12 x 16 x 45%).
Point No. (ii)
In view of the above discussions, I submit the following:
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal dated 30.08.2013 passed in M.V.C.No.6834/2010 is modified by awarding compensation of Rs.9,38,280/- against Rs.3,14,000/- awarded by the Tribunal with interest at the rate of Rs.6 % annually from the date of submission of the proposal until payment.
(iii) Respondent No. 1 – The insurance company is ordered to pay the compensation amount with interest within six weeks from today.
(iv) The Registry is directed to forward the records to the appropriate tribunal forthwith.
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JUDGEMENT REVIEWED BY HARSHA L NALWAR