Ramaiah vs Alkesha and Others

R.S. Chauhan, J.—1. Aggrieved by the meager award of Rs. 2,18,650/- awarded by the learned Senior Civil Judge & XII Addl. Motor Accidents Claims Tribunal, Bhadravathi, by award dated 22nd July 2010 in MVC. No. 200/2007, Mr. Ramaiah, the claimant, has approached this Court.

Briefly the facts of the case are that on 4.3.2007, the Mr. Ramaiah was going as a pillion rider in the motor bike bearing registration No. KA-14-U-825 being ridden by one Ramegowda. While they were proceeding on the left side of B.H. Road, near Channabasaveshwara Temple at Malavagoppa, around 2.00 p.m., one Mr. Alkesha, aged 20 years, rode his motor cycle, bearing registration No. KA-14-U-455, rashly and negligently, and dashed against the motorbike on which the claimant was going. The claimant fell down and sustained grievous injuries on his left tibia and wrist. Consequently, his left leg was shortened by 5 cms. and there was no movement across the knee. He had lost 40% of grip in the left hand along with deformity of left wrist. There was deformity of 30% of the whole body and having suffered 80% disability of the left lower limb, the appellant filed claim petition before the learned Tribunal. After going through the oral and documentary evidence, the learned Tribunal had granted a compensation of Rs. 2,18,650/-. Hence, this appeal before this Court.

Ms. B.M. Nagaveena, the learned counsel for the appellant has raised the following contentions before this Court : firstly the learned Tribunal has not granted a compensation under well known categories, such as, "loss of income during the laid up period", "for conveyance", "for attendance". Thus, for these three categories, the compensation has to be paid to the appellant.

Secondly, although according to the doctor the disability of the whole body was 30%, without assigning rhyme or reason, he learned Tribunal has reduced the disability and taken it as 20%.

Thirdly that income has been taken as Rs. 3,000/-, whereas it ought to have been taken at Rs. 4,000/- since accident had occurred on 4.3.2007.

Fourthly, since a rod had to be inserted, the same has to be taken out in future and bone grafting has to be done, for this purpose, the doctor had clearly opined that the claimant would require Rs. 1,50,000/- for future medical expenses. However, notwithstanding the testimony of the Medical Officer, the learned Tribunal has granted merely Rs. 50,000/- for future medical expenses.

Lastly, despite the fact that the left leg of the claimant had been shortened by 5 cms., despite the fact that he has difficulty in gripping from his left hand, as the same has been diminished with 40% loss of grip, the loss of amenities had been quantified as merely Rs. 5,000/-. Therefore, under the said head, the compensation needs to be enhanced.

On the other hand, Mr. Gunashekar, the learned counsel for the Insurance Company, has pleaded that since the appellant was 65 years old, the learned Tribunal was justified in taking his notional income as Rs. 3,000/- per month. Therefore, according to the learned counsel, the income should not be enhanced to Rs. 4,500/- per month.

Secondly, since the appellant was an aged man, due to old age, this disability would have occurred even if accident had not occurred. Therefore, the learned Tribunal was justified in concluding that the overall disability is 20%.

Thirdly, even for the operation that had occurred in 2007, the appellant had incurred merely Rs. 80,000/-. Therefore, the grant of Rs. 50,000/- for future medical expenses was justified. However, the learned counsel for the respondent-Insurance Company has frankly conceded that "loss of income for laid up period", "for conveyance", "for attendant charges", some compensation should have been awarded by the learned Tribunal.

Lastly the learned counsel submits that the compensation paid for loss of amenities is just and reasonable. Therefore, the learned counsel for the Insurance Company has supported the impugned award.

Heard the learned counsel for the parties and perused the impugned award.

A bare perusal of the impugned award clearly reveals that under some well known categories, the learned Tribunal has failed to award any compensation. Although appellant had claimed that he was hospitalised for 54 days, no loss of income had been granted to him for the laid up period. Moreover, despite the fact that appellant was injured and had to be carried to the hospital and back, and had to be looked after by an attendant, surprisingly no compensation has been paid for the category of "conveyance and attendant".

The learned Tribunal has notionally taken the income of the claimant as Rs. 3,000/- per month. But, according to the chart prepared by this Court, if the accident had taken place in the year 2008, the income is notionally taken as Rs. 4,500/- per month. Therefore, for the accident that has taken place in March 2007, the income should have been taken at Rs. 4,000/- per month.

Undoubtedly, according to the Medical Officer, the appellant had suffered disability of 30% to the whole body. Yet without assigning any cogent reason, the learned Tribunal has reduced the disability to only 20%. Considering the fact that the appellant''s left leg has been shortened by 5 cms., considering the fact that he had lost the grip of left hand, the disability to the whole body in fact should have been taken as 30% and not as 20%.

According to the Medical Officer, in future, the implants need to be removed, and bone grafting needs to be done. Therefore, the Medical Officer was of the opinion that in future the claimant would require at least Rs. 1,50,000/- for his future medical expenses. Considering the fact that in 2007, the cost of the operation the claimant incurred was Rs. 80,000/-, considering the fact that the claimant would require removal of implants, as well as, bone grafting, considering the fact that medical expenses have sky rocketed since 2007, this Court is certainly of the opinion that compensation payable in the category of "future medical expenses" need to be enhanced.

Lastly, the learned Tribunal could not have ignored the fact that both the leg and the hand, are adversely affected. Therefore, there is loss of amenities and yet the learned Tribunal has granted only Rs. 5,000/- for loss of amenities. Therefore, this Court is of the opinion that the compensation in the category of "loss of amenities" also requires to be enhanced.

For conveyance for the said period of 54 days this Court grants Rs. 10,900/- as is evident from Ex. P-13. For the attendant, for 54 days, the Tribunal has already granted a compensation of Rs. 2,700/-. But, the same is hereby enhanced by Rs. 3,000/-. Thus, it comes out to Rs. 5,700/-. Taking the income at Rs. 4,000/-, (that is, Rs. 4,000 x 12 x 7 x 30/100), the loss of income comes to Rs. 1,08,000/-.

For future medical expenses, the claimant should be granted Rs. 1,50,000/- and for "loss of amenities", the claimant should be paid Rs. 10,000/- and in all other heads, the compensation granted by the learned Tribunal is just and proper. Thus, the claimant-appellant is entitled for total compensation of Rs. 3,84,250/-, which is as under:

Accordingly, the appeal is partly allowed. The judgment and award passed by the learned Tribunal is modified and the claimant-appellant is granted an enhanced compensation of Rs. 1,65,600/- along with interest at the rate of 6% p.a. from the date of petition till the date of realisation. The respondent-Insurance Company is directed to deposit the enhanced amount through a demand draft in the name of the claimant-appellant, before the learned Tribunal.

The learned counsel for the respondent-Insurance Company is permitted to file vakalat within a period of four weeks.