Anjinappa vs M.K. Yuvaraj and Others

P.D. Waingankar, J.—This appeal is directed against the quantum of compensation awarded by the tribunal in MVC No. 824/2006 on the file of MACT & I Addl. Civil Judge(Sr.Dn.) at Davanagere by the judgment and award dated 10.9.2009.

The brief facts which gave rise to this appeal are as under:

"On 27.1.2005 at about 6 p.m., appellant/claimant was returning to his house by walk after attending to his work on Kodihalli road, near Kodaganur village. At that time, a motor cycle bearing No. KA 17/S-4253 came in a rash and negligent manner and dashed against him, as a result of which he sustained fracture of right ankle and right knee and comminuted fracture of upper 1/3 of right tibia, segment fracture of little 1/3 of right fibula and fracture over right ankle and injuries to other parts of the body for which he was treated as inpatient in Bapuji hospital, Davanagere. He underwent multiple surgeries during the period of hospitalisation. He was working as water man and earning Rs. 9000/- p.m. On account of accidental injuries, he lost his earnings during the period of treatment. He spent substantial amount for his treatment. Despite best and specialized treatment given, he suffered permanent disability. Hence, the appellant has filed a claim petition under Section 166 of the M.V. Act claiming compensation from the owner and insurer of the Motor cycle."

The claim petition was opposed by the insurer of the Motor Cycle, it came up for consideration before the Tribunal, before whom, the claimant got himself examined as PW1 and examined two more witnesses namely Dr.M.R. Jayaprakash as PW2 and Shivamurthy as P.W.3. Ex. P.1 to P.53 were marked on his behalf. Respondent/Insurance Company has produced the policy at Ex. R1.

The Tribunal on appreciation of the evidence, recorded a finding that the accident and the resultant injuries sustained by the claimant were due to rash and negligent driving of the motor cycle in question. Further the Tribunal has awarded a sum of Rs. 15,000/- towards pain and suffering and Rs. 50,000/- towards medical expenses, Rs. 1000/- towards loss of income during the period of rest, Rs. 23,000/- towards loss of earning capacity on account of permanent physical disability, Rs. 10,000/- towards loss of future medical expenses and Rs. 5000/- towards loss of amenities and enjoyment of life. Thus the tribunal has awarded a total compensation of Rs. 1,04,000/- with the impugned judgment and award. Dissatisfied with the quantum of compensation awarded by the Tribunal on all the heads, this appeal is preferred by the claimant.

I have heard both the learned counsel appearing for the appellant/claimant and respondent-Insurance Company. Perused the records.

The point that would arise for my consideration is:

" Whether the compensation awarded by the Tribunal is just and reasonable?"

The accident and the resultant injuries sustained by the claimant in the accident are not in dispute. Ex. P.6-is the wound certificate issued by Balaji hospital, Davanagere, where he was treated as inpatient, it discloses the following injuries:

"(a) Abrasion over the right ankle on the lateral aspect.

(b) X-ray right leg-knee-commuted upper 1/3 of right fibula right ankle-medical molecular of right tibia with particular anterolateral molecular of right fibula. Fractures of right ankle and right knee, comminuted fracture of upper 1/3 of right tibia, segment fracture of little 1/3rd of right fibula and fracture over right ankle and other parts of the body. The doctor who has issued the wound certificate is of the opinion that injury No. 2 is grievous in nature. The record discloses that he underwent surgery during the period of hospitalization for 29 days in Bapuji hospital. However, the Tribunal has awarded a paltry sum of Rs. 15,000/- towards injury, pain and suffering which is definitely on the lower side. Having regard to the nature of injuries, nature of treatment and the period of hospitalization for 29 days, Rs. 50,000/- would be just and reasonable compensation under the head pain and suffering as against Rs. 15,000/- awarded by the Tribunal."

Further the Tribunal has awarded a sum of Rs. 50000/- towards medical expenses on the strength of the medical bills produced by the claimant. Therefore, the question of interference by this court does not arise.

In order to prove the disability suffered by the claimant, he has examined PW2- Dr. M.R. Jayaprakash from Bapuji Hospital, Davanagere, where he was treated. His evidence would go to show that the claimant suffered 40% disability of affected limb. Ex. P.37 is the disability certificate. Therefore, the total permanent disability to the whole body comes to 14%. The tribunal has taken the income of the claimant at Rs. 1,000/- p.m. though he has stated that he was working as water man and getting a monthly salary of Rs. 9000/-. But no witnesses have been examined to show that he was working as a waterman and he was getting that much of salary. In the absence of acceptable evidence regarding the avocation and income of the claimant, having regard to his age as 27 years at the time of the accident, I deem it just and proper to take his monthly income at Rs. 4000/- p.m. If that is so, the total loss of future income on account of disability would come to Rs. 1,20,960/- (440 X 12 X 18). Therefore, a sum of Rs. 1,20,960/- is awarded towards loss of future income on account of disability as against Rs. 23,000/- awarded by the Tribunal.

Further the Tribunal has awarded a paltry sum of Rs. 1,000/- towards loss of income during the period of treatment. On account of the injuries, he was prevented from attending to his work for a minimum period of four months and thereby he suffered loss of earnings at the rate of Rs. 4,000/- p.m. Therefore, a sum of Rs. 16,000/- is awarded towards loss of income during laid up period as against Rs. 1,000/- awarded by the Tribunal. The Tribunal has rightly awarded a sum of Rs. 10,000/- towards future medical expenses. However, the tribunal has not awarded any amount towards attendant charges and conveyance. It is stated that the claimant was in need of services of an attendant not only during the period of hospitalization, even thereafter for a period of 1 or 2 months. Having regard to the gravity of the injury suffered by the claimant, he is entitled for a sum of Rs. 6,000/- towards attendant charges for a period of three months. Immediately after the accident, he was taken to Bapuji hospital, Davanagere, since he had fracture of Fibula and tibia, it goes without saying that services of a vehicle while taking to hospital and also discharge from the hospital and even thereafter one or two occasions during the follow up treatment as such he is entitled for a sum of Rs. 4,000/- towards conveyance charges.

Further the Tribunal has awarded a paltry sum of Rs. 5000/- towards loss of amenities and enjoyment of life. Without any basis or without any expected norms, ends of justice will be met if an amount of Rs. 30,000/- is awarded towards loss of future amenities and enjoyment of life as against Rs. 5,000/- awarded by the Tribunal. Hence, the claimant is entitled for compensation as under:

Thus, the claimant is entitled for a total compensation of Rs. 2,51,960/- as against Rs. 1,04,000/- awarded by the Tribunal. There shall be an enhancement of Rs. 1,47,960/-. Accordingly, the appeal filed by the appellant is partly allowed. The judgment and award dated 10.9.2009 in MVC No. 824/2006 on the file of MACT and the I Addl. Civil Judge(Sr.Dn.), Davanagere stands modified awarding enhanced compensation of Rs. 1,47,960/- over and above the compensation awarded by the Tribunal together with 7% interest thereof from the date of petition till the date of realisation.

The respondent is directed to deposit the enhanced compensation together with interest within a period of three weeks from the date of receipt of the copy of the order.

Out of the compensation amount a sum of Rs. 75,000/- shall be invested in the name the appellant/claimant for a period of five years in fixed deposit, in any nationalized bank of his choice and the remaining amount with interest shall be released to the claimant.