Akshaya Kumar vs Kiran Nayak and Others

N.K. Patil, J—This appeal by the claimant is directed against the impugned judgment and award dated 17th August 2013, passed in MVC No. 793/2008, by the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 4,77,700/- awarded in his favour as against his claim for Rs. 25,00,000/-, is inadequate.

The appellant claims to be aged about 20 years at the time of accident and a student, prosecuting his studies in Diploma, apart from working on part-time basis in Bakery, earning a sum of Rs. 2,250/- per month and hale and healthy prior to the date of accident. That at about 5:15 P.M., on 08-08-2007, when the appellant was riding his motor cycle bearing Registration No. KA-20/S-3746 from Mangalore side towards Udupi at moderate speed on NH-17, near Udyavara bridge, a Maruti Car bearing Registration No. KA-21/M-1858 came at a high speed, in a rash and negligent manner and dashed against the Lorry bearing Registration No. KA-25/B-5668 which was moving in the front of the motor cycle. On account of the same, the driver of the Lorry applied sudden brake and consequently, the appellant also applied sudden brake. In spite of that, the motor cycle hit the lorry on its back side and the appellant fell down on the road. As a result, the appellant sustained grievous injuries and lost his consciousness. Immediately, he was shifted to HI-tech Hospital, Udupi, where first-aid was given and thereafter shifted to KMC Hospital, Manipal for better treatment, where he took treatment as in-patient from 08-08-2007 to 23-10-2007.

It is the case of the appellant that he has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated adequately.

On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 17th August, 2013. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 4,77,700/- with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

We have heard learned counsel for appellant and learned counsel for third respondent/Insurance Company for considerable length of time.

It is the case of the appellant that on account of the road traffic accident, he sustained severe open head injury with deep fracture left frontal and the as per the Disability Certificate, he has neuropsychological disability of 40% to 50% and has a hearing loss on the left side and the disability is likely to be permanent and disability of about 40% and for the treatment of the said injuries, he was in-patient for quite a long period in different Hospitals by spending huge sums and therefore, he has to be awarded reasonable compensation.

The submission of the learned counsel appearing for appellant, Shri. Vyasa Rao K.S., at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of marriage prospects, loss of future income and no compensation is awarded towards loss of income during treatment period and future medical expenses. He further submitted that the Tribunal erred in not assessing the income of the appellant, for the reason that the appellant was aged about 20 years and a student, studying Diploma and also working at a Bakery on part time basis, earning a sum of Rs. 2,250/- per month. Therefore, he submitted that the Tribunal ought to have assessed the income of the appellant and awarded reasonable compensation on account of the grievous injuries and disability sustained by him in the road traffic accident. He further submitted that the Doctor has assessed neuropsychological disability at 40% to 50%, which the appellant has to endure for the rest of his life and on account of disability, his marriage prospects are also grim. Therefore, the impugned judgment and award passed by Tribunal is liable to be modified, by enhancing reasonable compensation under all the heads and to award reasonable compensation towards loss of income during treatment period and future medical expenses.

As against this, learned counsel appearing for third respondent/Insurer, inter alia, sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and hence, interference in the same is uncalled for. He further submitted that in fact, there is contributory negligence on the part of the appellant also, in the cause of accident and reasonable negligence ought to have been fixed on the part of the appellant also. But, the Tribunal has failed to fix any negligence on the part of the appellant. However, he submitted that, considering the totality of the case on hand, interference in the impugned judgment and award passed by Tribunal is uncalled for.

After hearing learned counsel for the appellant, learned counsel appearing for Insurer and after perusal of the judgment and award passed by Tribunal including the original records placed before us, the only point that arise for our consideration in this appeal is,

Whether the quantum of compensation awarded by Tribunal is just and reasonable?

After going through the entire material available on file, it can be seen that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 20 years and a student, prosecuting his studies in III year Diploma course. It is stated that he was working on part time basis at a Bakery, to eke his livelihood and earning a sum of Rs. 2,250/-. The Tribunal, after assessing the oral and documentary evidence available on file and considering the age and status of the appellant, nature of injuries sustained, disability assessed, nature and duration of treatment undergone, has rightly awarded compensation of a sum of Rs. 1,97,700/- towards medical expenses, as per the medical bills and prescriptions, Rs. 30,000/- towards conveyance, nourishing food and attendant charges, Rs. 50,000/- towards loss of marriage prospects and Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness on account of disability. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under injury, pain and sufferings, loss of marriage prospects and loss of future earnings is concerned, the same is on the lower side and needs to be re-determined. Further, no compensation is awarded towards loss of income during treatment period and future medical expenses. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries such as severe open head injury with deep fracture left frontal and as per Disability Certificate at Ex.P1, he sustained neuropsychological disability of 40% to 50% and the Doctor opined that the appellant has a hearing loss on the left side and the disability is likely to be permanent and disability of about 40%. According to the Doctors, the appellant has sustained neuropsychological disability of 40% to 50% and he has a large skull defect for which he will require casnoplasty procedure for correction. In spite of this deposition by the Doctor, the Tribunal has failed to award any compensation towards future medical expenses. Further, it has come in the evidence of the Doctor, that the appellant has underwent re-explorative surgery and eternal ventricular drainage and had a prolonged hospital stay with intensive care therapy and ventilatory care. Having regard to the age and status of the appellant, nature of injuries coupled with the evidence of the Doctors, we assess the whole body disability at 50%, to meet the ends of justice. The appellant being aged about only 20 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from his part time work for a period of not less than six months. Further, it can be seen that on account of the injuries and the disability sustained, the marriage prospects of the appellant are also affected. On the advise of the Doctor, the appellant has to undergo future medication and incur future medical expenses. Further, the Tribunal has not assessed the monthly income of the appellant on the ground that he was a student. But, it is stated that he was also working at a Bakery on part time basis and earning a sum of Rs. 2,250/- per month. Considering the facts and circumstances of the case, and other relevant material available on file, we accept the same and assess the monthly income of the appellant at Rs. 2,250/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite some time. During this period, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 20 years at the time of accident, the proper multiplier applicable is ''18'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . Therefore, having regard to the age, avocation, nature of injuries, disability, nature and duration of treatment undergone and the facts and circumstances of the case on hand, we award a sum of Rs. 1,00,000/- towards injury, pain and suffering as against Rs. 50,000/-; Rs. 13,500/- towards loss of income during treatment period, at the rate of Rs. 2,250/- per month for a period of six months and Rs. 1,00,000/- towards future medical expenses as the Tribunal has not awarded any compensation under these heads and Rs. 2,43,000/- (i.e. Rs. 2,250/- x 12 x ''18'' x 50/100) towards loss of future income as against Rs. 50,000/- awarded by Tribunal.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 17th August 2013, passed in MVC No. 793/2008, by the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi, is hereby modified, awarding a sum of Rs. 8,34,200/- as against Rs. 4,77,700/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows:

The third respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 3,56,500/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by five years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 1,56,500/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.