Annappa and Others vs Satinder Kumar Gyanchand and Others

P.D. Waingankar, J—Both these appeals are arising out of the common judgment and award dated 26.02.2013 in MVC Nos. 1414/2011 and 1415/2011 on the file of the MACT-II at Bijapur.

MFA No. 32960/2013 is arising out of the judgment and award in MVC No. 1414/2011 and MFA No. 32961/2013 is arising out of the judgment and award in MVC No. 1415/2011.

The appellants-claimants in both the claim petitions were proceeding on a motorcycle bearing registration No. MH-09/Z-5195. When they reached near Loni cross, a lorry bearing registration No. RJ-14/GA-6079 came from behind in a rash and negligent manner and dashed against motorcycle wherein they were proceeding. As a result of the accident, both the rider and the pillion rider sustained grievous injuries for which they were initially treated in Civil Hospital, Bijapur followed by High Centre at Miraj by Dr. Sudhir Shah, Orthopedic Surgeon. They spent substantial amount for the treatment. They lost their income and even after best treatment they suffered disability. Claiming compensation, they filed claim petitions under Section 166 of the M.V. Act against the owner and insurer of the lorry.

Both the claim petitions were contested by the insurer of the lorry. They came up for consideration before the Tribunal. The Tribunal on appreciation of the evidence, recorded a finding that the accident and resultant injuries sustained by both the appellants/claimants were on account of rash and negligent driving of the lorry by its driver. The Tribunal taking into consideration the medical records and the disability spoken by the Doctor awarded a sum of Rs. 2,60,000/- in MVC No. 1414/2011 and Rs. 1,30,000/- in MVC No. 1415/2011.

Both the claimants are dissatisfied with the quantum of compensation awarded by the Tribunal. Hence, they preferred these appeals.

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

Ex. P6 is the wound certificate of the claimant in MVC No. 1414/2011 Annappa, aged about 50 years. Ex. P6 discloses the following injuries:

"i) Compound and comminuted fracture lower end of tibia and fibula;

ii) Fracture right ulna middle 1/3rd

iii) Crush injury to right hand and crush injury to left foot."

PW.3-Dr. Sudhir Shah is the doctor who treated him in his hospital at Miraj. His evidence would go to show that he sustained aforesaid injuries shown in Ex. P6. He underwent surgery for the comminuted fracture of lower end of tibia and fibula, surgery for the fracture of right ulna middle 1/3rd and skin grafting for left foot crush injury. Having regard to the nature of injuries, nature of treatment an amount of Rs. 75,000/- awarded by the tribunal seems to be a reasonable amount under the head injury, pain and sufferings.

The Tribunal has awarded a sum of Rs. 80,000/- towards medical expenses and Rs. 20,000/- towards future medical expenses. An amount of Rs. 80,000/- awarded towards medical expenses is on the strength of the medical bills produced by the claimants as per Ex. P8. Therefore, question of interference does not arise. So far as an amount of Rs. 20,000/- awarded towards future medical expenses is also reasonable. But, the Tribunal has awarded a partly sum of Rs. 5,000/- towards conveyance, nourishment and attendant charges. The claimant is a resident of India Taluk in Bijapur. He was treated in Miraj, which is at a distance of 180 kms. Since he had fracture of both tibia and fibula and crush injury to left foot, it goes without saying that he was in need of a special vehicle in order to go to Hospital at Miraj during the admission, at the time of his discharge and also during the follow up treatment on one or two occasions. So he has been awarded a sum of Rs. 10,000/- towards conveyance charges.

The Tribunal has also not awarded compensation amount towards attendant charges. His condition after the accident were such that services of an attendant were indispensable for him not only during the period of his hospitalisation even after the discharge for a month or two since he had multiple fractures. As such, a sum of Rs. 9,000/- is awarded towards attendant charges at the rate of Rs. 100/- per day for a period of three months. Further, a sum of Rs. 2,000/- is awarded towards nutritious food.

The Tribunal has not awarded any amount towards loss of income during the period of treatment. The claimant was aged about 55 years. He must be having a family of dependants. Definitely he must be earning income. Since the accident occurred in the year 2011, I am inclined to take his income at Rs. 6,000/- per month. On account of accidental injury he must have been incapacitated from attending to his work for a minimum period of three months and thereby he lost his earnings. So, an amount of Rs. 18,000/- is awarded towards loss of earning during the period of treatment.

The Tribunal has awarded a sum of Rs. 80,000/- towards loss of future earning and loss of enjoyment of life and amenities. The doctor has been examined as PW.3-Dr. Sudhir Shah, who treated him in his Hospital at Miraj. He has spoken that the claimant has suffered 36% disability of the whole body. Since he had major fracture and crush injury to left foot and right hand, he must have suffered disability but not to the extent of 36% spoken by PW.3. Having regard to the nature of injuries and that he underwent surgeries, I deem it just and proper on my part to take disability of the whole body as 20%. So loss of future income on account of disability comes to Rs. 1,58,400/-. So, an amount of Rs. 1,58,400/- is awarded towards loss of future income on account of disability. Further a sum of Rs. 30,000/- is awarded towards loss of future amenities. Thus, the claimant in MVC No. 1414/2011 is awarded a compensation under the various heads as under:

Thus, the claimant in MVC No. 1414/2011 is held to be entitled for a total compensation of Rs. 4,02,400/- as against Rs. 2,60,000/- awarded by the Tribunal. There shall be enhancement of Rs. 1,42,400/-.

Coming to the claim petition in MVC No. 1415/2011, this is a claim petition filed by the minor girl, aged about 14 years who sustained injuries in the said accident. Ex. P11 is the wound certificate issued by Dr. Sudhir Shah. It discloses that she had Grade-II-C comminuted fracture middle 1/3rd right tibia and fibula. PW.3 went on record to depose that she underwent nailing of tibia on 30.05.2011 and discharged on 26.06.2011 and that she was also followed up. She suffered disability of 24% of the whole body. It is impossible to accept the disability of 24% of the whole body spoken by the PW.3 that too in a case of Grade-II-C comminuted fracture middle 1/3rd right tibia and fibula. Therefore, I am inclined to take disability of whole body as 10% as against 24% taken by the Tribunal.

At this stage, learned counsel for the appellant has placed reliance upon the decision of the Supreme Court reported in Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited and Another, (2014) 1 ABR 170 : (2013) 3 ACC 924 : (2013) ACJ 2445 : AIR 2014 SC 736 : (2013) 13 JT 465 : (2013) 4 PLR 745 : (2013) 4 RCR(Civil) 295 : (2013) 10 SCALE 668 , the Supreme Court has observed as under:

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 105 and upto 30% to the whole body Rs. 3 lakhs.".

In view of the observations made by the Supreme Court, the claimant in MVC No. 1415/2011, being a minor girl, aged about 14 years, who suffered permanent disability of 12% of the whole body is entitled for Rs. 3,00,000/-. In addition to that, she is entitled for Rs. 10,000/- towards medical expenses in view of the production of medical bills as per Ex. P12 for the aforesaid amount. In addition to that she is entitled for Rs. 5,000/- towards future medical expenses, Rs. 25,000/- towards discomfort conveyance and loss of earning to the parents during the period of hospitalisation. Thus the claimant in MVC No. 1415/2011 is entitled for a total compensation of Rs. 3,40,000/- as against Rs. 1,30,000/- awarded by the Tribunal. There shall be enhancement of Rs. 2,10,000/-. Accordingly, I pass the following

ORDER

"i) M.F.A. Nos. 32960/2013 and 32961/2013 are allowed-in-part. The judgment and award dated 26.02.2013 passed in MVC Nos. 1414/2011 and 1415/2011 on the file of the MACT-II, Bijapur stands modified.

ii) The claimant in MVC No. 1414/2011 has been held to be entitled for an enhanced compensation of Rs. 1,42,400/- over and above the compensation awarded by the Tribunal together with 6% interest thereon from the date of the petition till the date of realisation.

iii) The claimant in MVC No. 1415/2011 has been held to be entitled for an enhanced compensation of Rs. 2,10,000/- over and above the compensation awarded by the Tribunal together with 6% interest thereon from the date of the petition till the date of realisation.

iv) Respondent No. 2-Insurance Company is directed to deposit the enhanced compensation amount together with interest within two months from the date of receipt of copy of this judgment in both the cases.

v) In the event of deposit, the entire compensation shall be released to the claimant in MVC No. 1414/2011.

vi) In the event of deposit, entire compensation in MVC No. 1415/2011 is ordered to be invested in fixed deposit in any nationalised bank in the name of claimant-Shridevi till she attains the age of majority."