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Judgment
B. Sreenivas Gowda, J—MFA No. 30816/2009 is filed by the insurer of a lorry challenging the judgment and award passed by the Tribunal on the ground of liability.
MFA No. 30773/2010 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.
As these appeals are arising out of a common judgment and award of the Tribunal, with the consent of the leaned counsel appearing for the parties, they are heard together and disposed of finally by this common judgment.
As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 20.06.1995 due to rash and negligent driving of a lorry bearing registration No. KA.32/2122 by its driver, the only points remain for consideration in these appeals are:
"1. Whether the finding of the Tribunal on liability in fastening the same on the insurer of lorry is sustainable in law?
Whether compensation of Rs. 5,43,200/- with interest at 8% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?"
Regarding liability:
Sri R.V. Nadagouda, learned counsel appearing for the insurer of lorry submits, the injured-claimant having travelled in the offending lorry as an unauthorized passenger as evident from the FIR marked as Ex. P.1, his risk is not covered under the policy, the tribunal without considering the same has committed an error in fastening the liability on the insurer of lorry. Regarding quantum he submits quantum of compensation awarded by the Tribunal is just and reasonable, there is no scope for enhancement. Hence, he prays for allowing the appeal filed by the insurer and dismissing the appeal filed by the claimant.
Sri. B.C. Jaka, learned counsel appearing for the claimant submits, in the very accident dated 20.06.1995 several persons sustained injuries and they filed separate claim petitions before the MACT, Gulbarga and all those claim petitions were allowed and compensation was awarded by fastening the liability on the insurer of lorry. Claimants in MVC No. 127/1996, 129/1996 and 293/2002 aggrieved by the quantum of compensation awarded by the Tribunal had preferred MFA Nos. 3475/1999, 3249/2002 and 7020/2004 respectively seeking enhancement of compensation awarded by the Tribunal. The Principal Bench, Bangalore allowed MFA Nos. 3475/1999 and 3249/2002 and this Bench allowed MFA No. 7020/2004 and enhanced the compensation and directed the insurer of lorry to pay the enhanced compensation, thereby it has not disturbed the finding of the Tribunal on liability. He further submits MFA No. 1000/2006 filed by the insurer of lorry challenging the judgment and award passed by the Tribunal on the ground of liability also came to be dismissed confirming the finding of the Tribunal on liability in fastening the same on the insurer of lorry. Therefore, he prays for confirming the finding of the Tribunal on liability. Sri R.V. Nadagouda the learned counsel for the insurer does not dispute this fact. If that is so, there is no other way but to confirm the finding of the Tribunal on liability and consequently the appeal filed by the insurer of lorry is liable to be dismissed. Point No. 1 is answered accordingly.
Regarding quantum:
The claimant has sustained fracture of pelvis and rupture of urethra. As per Ex. P.31 disability certificate claimant has sustained fracture of 1st and 3rd left ribs, fracture of right 7th rib. He has intercostal neurologic of 2nd, 4th and 8th intercostal space resulting in 70o of last excursion of chest during inspiration and expiration, malunited fracture of both rami of pubic bone resulting permanent perennial pain in lethotomy position or experiences severe pain during coitus. He has urethra injury for which he has undergone surgery. Malunited fracture of right ischium, fracture of left clavicle bone and also fracture of bladder. Injuries sustained and treatment taken by the claimant are evident from Ex. P3 & 4 discharge cards, Ex. P.5 wound certificate and Ex. P.31 disability certificate and are supported by the oral evidence of the claimant and the doctors who were examined as PWs. 1 to 3 respectively.
Dr. Ravindra Patil was examined as P.W. 2 as he has issued disability certificate as per Ex. P.33. He has stated in his examination in chief that claimant was admitted in Basaveshwar Hospital on 20.06.1995 and he was treated by Dr. M.S. Patil. He examined the claimant on 11.8.1995. He had stricture in posterior urethra, for which he conducted operation called optical urotratum. He has stated as per the case sheet maintained in the hospital, the claimant had sustained injuries stated above. He has stated that he cannot say whether the above injuries and fractures sustained by the claimant amount to permanent disabilities or not. In his cross-examination he has stated he has not personally examined the claimant and came to conclusion regarding the claimant having problem in erection of penis. He admits that if patient/claimant underwent operation, he may become normal and he will not be having problems in passing urine. He has further admitted that at present, he (claimant) had no problem at all.
P.W. 3 Dr. Ramakanth Kulkarni has stated that he examined the claimant clinically and radiologically and has gone through the treatment given by the Basaveshwar Hospital, Gulbarga and X-ray report and has stated that claimant had urethra injury for which he has undergone surgery and he has been suffering from following permanent disabilities;
"i) Malunited fractures of 1st and 3rd left ribs,
ii) Malunited fractures of right 7th rib."
Claimant has intercostal neurology of 2nd, 4th and 8th intercostal space resulting in 700 of last excursion of chest during inspiration and expiration and the patient/claimant could not walk fast nor can see. He has further stated claimant has malunited fracture of both rami of pubic bone resulting permanent perennial pain in lithodomy position. He is having sever pain during coitus. Malunited fracture of right ishium resulting in pain in continuous sitting on hard surface and mal united fracture of left clavicle resulting in suffering of clavicular nerves entrapment syndrome. P.W. 3 opined that claimant has got 35-40% disability to whole body.
Considering multiple fractures sustained by the claimant, a sum of Rs. 2,00,000/- is awarded towards pain and suffering as against Rs. 2,34,500/- awarded by the Tribunal.
As a sum of Rs. 22,500/- awarded by the Tribunal towards medical expenses is as per the medical bills produced by the claimant at Ex. P8, the same is just and proper and there is no scope for enhancement under this head.
He was treated as inpatient for two months in District Government Hospital, Gulbarga and Basaveshwar Hospital, Gulbarga. Considering the duration of treatment, a sum of Rs. 25,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.
Considering nature of injuries sustained, disability stated by the doctors and an amount of discomfort and unhappiness that he has to suffer in his future life, a sum of Rs. 1,50,000/- is awarded towards loss of amenities including loss of marriage prospectus and inconvenience caused to education career as against Rs. 80,000/- awarded by the Tribunal under these heads.
Considering claimant was studying in 1st year B.E. awarding compensation towards loss of income during laid-up period does not arise.
Considering claimant was studying in 1st year B.E., his notional income assessed by the Tribunal at Rs. 3,000/- is just and proper. The multiplier applicable to the age group of the claimant is 18. P.W. 3 has stated claimant has suffered disability of 35-40% to the whole body. Considering multiple injuries and fractures sustained by the claimant, disability is taken at 40% to whole body as against 30% taken by the Tribunal. So loss of future income works out to Rs. 2,59,200/- (3,000 X 40/100 X 12 X 18) and it is awarded as against Rs. 1,51,200/- awarded by the Tribunal.
Considering nature of injuries, a sum of Rs. 50,000/- is awarded towards future medical expenses.
Thus, he is entitled for the following compensation:
Accordingly, MFA No. 30773/2010 is allowed in part and the Judgment and award passed by the Tribunal is modified. Compensation awarded by the Tribunal is enhanced from Rs. 5,43,200/- to Rs. 7,06,700/-. Claimant is entitled for an additional compensation of Rs. 1,63,500/- with interest at 6% per annum from the date of petition till the date of realization excluding interest on Rs. 50,000/- awarded towards future medical expenses.
Insurance Company is directed to deposit the additional compensation amount together with interest excluding the interest on Rs. 50,000/- awarded towards future medical expenses within two months from the date of receipt of a copy of this judgment. From the additional compensation amount to be deposited by the Insurance company, 70% with proportionate interest is to be invested in Fixed Deposit in the name of claimant in any Nationalized Bank/Scheduled Bank/Grameena Bank for a period of three years with a right of option for the claimant to withdraw interest periodically. Remaining 30% with proportionate interest is ordered to be released in his favour.
The Tribunal while releasing the remaining amount is also directed to issue FD slip in favour of the claimant, so that he can withdraw the FD amount on maturity and the Bank in which the FD will be invested is also directed to release FD on maturity without insisting for further orders from the Tribunal.
Draw up the award accordingly.
No order as to costs.
MFA No. 30816/2009 filed by the insurer of the offending lorry is dismissed as devoid of merits.