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M. Subba Raju Vs. Syed Mahaboob and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtKarnataka High Court
Decided On
Judge
Reported inII(1984)ACC340
AppellantM. Subba Raju
RespondentSyed Mahaboob and ors.
Excerpt:
.....1963. this is the procedure which the petitioners had to follow if they were entitled for enhanced compensation or if they intended to get proper compensation adjudicated by the civil court. but, the petitioners having not availed the remedies provided under section18, have after 7 years approached high court invoking the jurisdiction under article 226 making a grievance about the grant of interest. if this writ petition is entertained, it will result in rendering the provisions contained in section 28-a(3) and section 18 of the act ineffective. petitioners cannot be allowed to bypass these statutory provisions and approach the court under article 226 to have adjudication of their claims under article 226and get enhanced compensation be it in form of market value or higher interest or..........compensation awarded is on the high side.3. the owner of the vehicle in question has also filed cross-objections. but the cross-objections were filed on 21-10-80. he was served with notice of appeal on 2-2-80. thus, there is delay in filing cross-objections. he has filed an application to condone the delay. that has to be considered first.4. in the application to condone the delay in filing cross-objections, the owner has averred that though be was served with the notice of appeal on 2-2-1980 he was indisposed and he could not come over to bangalore to take instructions from the lawyer and so he had to wait till 22-10-1980 to come over to bangalore and take instructions from the lawyer. the owner is from krishnagiri in tamil nadu.5. the application to condone the delay is resisted by.....
Judgment:

G.N. Sabhahit, J.

1. As a result of the motor accident that happened on 4-7-78 the petitioner-claimant suffered fracture of the hip bone in addition to its dislocation. Though he was treated in the Victoria Hospital by Dr. Gyanchand P.W. 1 his right leg has become shorter by 11/2'. Right hip joint movements are restricted. Even ordinary walking has become difficult for him. He has to limp his way throughout his life, He cannot move without a walking stick. He cannot sit with crossed legs. He has to use commode for answering calls of nature. For all these and for pain and suffering and disability incurred he claimed Rs. 1,96,500/- as compensation. The Tribunal has awarded Rs. 90,000/- as general damages and Rs. 7,500/- as special damages. Aggrieved by the said award the claimant has instituted MFA No. 100/80 claiming enhanced compensation.

2. As against that, the insurance company has instituted MFA No. 1419/79 contending inter alia that the compensation awarded is on the high side.

3. The owner of the vehicle in question has also filed cross-objections. But the cross-objections were filed on 21-10-80. He was served with notice of appeal on 2-2-80. Thus, there is delay in filing cross-objections. He has filed an application to condone the delay. That has to be considered first.

4. In the application to condone the delay in filing cross-objections, the owner has averred that though be was served with the notice of appeal on 2-2-1980 he was indisposed and he could not come over to Bangalore to take instructions from the lawyer and so he had to wait till 22-10-1980 to come over to Bangalore and take instructions from the lawyer. The owner is from Krishnagiri in Tamil Nadu.

5. The application to condone the delay is resisted by the claimant. The first point, therefore, we have to decide is whether the delay in filing the objections should be condoned.

6. Having regard to the fact that the owner was indisposed and was not in a position to come over to Bangalore to take instructions from his lawyer, we are inclined to condone the delay and we condone the same and we direct that the cross-objections should be registered and considered.

7. The learned advocate appearing for the claimant in MFA No. 100/80 strenuously .urged before us that the Tribunal has not adequately compensated the injury sustained by the claimant in the accident. It is no doubt true that P.W. 1 Gyanchand in his evidence spoke to the disability of the claimant as mentioned above. But the fact remains that the claimant has continued in his job as a stenographer and the Tribunal has pointed out that he has not averred in his evidence that he lost any prospects of promotion. Thus, it cannot safely be said that there is loss of earning as such as a result of the accident, on the facts of the present case.

8. The compensation, therefore, has to be awarded for injury, for pain and suffering, past and future, and for loss of amenities in life.

9. The doctor deposed that there was fracture of the hip bone and there is restriction in its movement. He cannot sit with crossed legs on account of fracture of hip joint and his right leg has become shortened by 11/2'. He has to walk with the help of a walking stick and he cannot enjoy marital life as before. The compensation, therefore, has to be awarded having regard to the facts of this case and also taking into consideration the awards made in comparable cases for some length of time. The Tribunal has relied upon the decision in the case Kailashwati v. Haryana State 1974 A.C.J. 514 (H.P.). In that case the leg of the injured was amputated. He was a forest guard drawing Rs. 281/- per month. He was rendered unfit for service. The Tribunal awarded Rs. 51,800/-. The award was enhanced by Rs. 38,550/- for loss of future increments, services of wife and the like by the High Court. It may at once be noted that in that case the injured lost his service. He was rendered unfit for service. Hence, the loss of earning in future years and the loss of future prospects of the injured servant were taken into consideration by the High Court. Besides, his leg was amputated. The facts of the present case are not similar. The injured still continues in service without any loss of pay. There is no amputation of the leg though there is restriction in the movement and difficulty in walking. Hence the Tribunal was not justified in awarding general compensation of Rs. 90,000/- relying on the facts of the other case.

10. In the case of V. Jagannatha Rao v. Debendranath Patnaik 1976 A.C.J. 281 (Orissa) the High Court of Orissa at Cuttack had an occasion to deal with an injured at 48 years. He was disabled and dripped permanently. He could not bend his leg. He could not climb steps or walk properly. The Claims Tribunal awarded Rs. 39,000/- as general compensation. The award was reduced to Rs. 25,000/-. The facts of this case are nearer to the facts of the present case. But the accident in that case occurred on 12-11-1971 whereas the accident in the present case occurred on 4-7-1978 much later.

11. In the case State of Haryana v. Balbir Singh Hooda 1975 A.C.J. 1 (P. & H.) the High Court of Punjab and Haryana bad an occasion to consider the case of an injured Lt. Colonel in the army. He suffered fracture of both legs and dislocation of both the hip joints. He had to undergo nine major operations and his whole body remained under plaster for five months except his left arm and face. The Claims Tribunal awarded Rs. 68,955/- for medical treatment, loss of pay, re-employment, mental agony and permanent disability. The High Court reduced the award to Rs. 57,472/-. The facts of that case and of the present case bear some resemblance. In the instant case there is dislocation of only one hip bone, that is of the right hip joint. There is also fracture of right hip bone. In the case of Lt. Colonel there was fracture of both legs and dislocation of both hip joints. The facts of the present case are not so grave and grievous as the facts in the case of Lt. Colonel. The Punjab and Haryana High Court in that case took into consideration the loss of pay, re-employment, mental agony, permanent disability and medical treatment and fixed the compensation at Rs. 57,472/-. Having regard to these facts, it is obvious that the compensation in the present case should be little more than what is awarded by the High Court of Orissa at Cuttack quoted above and less than what is awarded by the High Court of Punjab and Haryana in the case of Lt. Colonel. Therefore, taking into consideration the facts of the present case, we are inclined to award Rs. 45,000/- as general damages bearing in mind the injury, pain and suffering, past and future, loss of amenities and the like.

12. The Tribunal has awarded Rs. 2,500/- as special damages for the repair of the scooter, we affirm the same. The Tribunal has awarded Rs. 5000/- for medical charges and nourishing food, we affirm the same. Together, therefore, the global compensation to which the claimant is entitled would be Rs. 52,500/- instead of Rs. 97,500/- which was awarded by the Tribunal.

13. In the result the appeal of the claimant is liable to be dismissed and the cross-objections are entitled to succeed. We allow the cross-objections and reduced the award from Rs. 97,500/- to Rs. 52,500/-.

14. The next question that arises for our consideration is as to who should pay the same. The liability of the insurance company under the Act in relation to one accident is Rs. 50,000/-. The insurance company, however, has challenged this liability and has pleaded that the compensation granted is exorbitant in MFA No. 1419/79. Firstly, the insurance company cannot challenge the quantum of compensation awarded. Secondly, it cannot challenge its liability to the extent of Rs. 50,000/-. Therefore, the appeal of the insurance company is liable to be dismissed and we dismiss the same.

15. We further direct that out of Rs. 52 500/- compensation awarded Rs. 50,000/- along with costs of this proceeding before the Tribunal as, also interest on the said amount at 6 per cent per annum from the date of petition till payment shall be paid over to the claimant by the insurance company.

16. We further direct that the remaining amount of Rs. 2,500 along with interest at 6 per cent per annum from the date of petition till payment shall be paid over by the owner of the vehicle to the claimant. The appeal of the claimant MFA No. 100 of 1980 is hereby dismissed and the cross-objections are allowed. There shall be no order as to costs of these appeals and cross-objections.


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