B.C. Jwalanaiah vs Ashray H.C. and Others

N.K. Patil, J.—This appeal by the claimant is arising out of the impugned judgment and award dated 14th November 2014 passed in MVC No. 2293/2013 on the file of the XVI Additional Judge, Member, Court of small Causes, MACT, Bangalore City (SCCH-14) (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 2,38,000/- with interest at 9% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road traffic accident.

It is the case of the appellant that, he was aged about 60 years as on the date of accident, hale and healthy and was pigmy collector, earning Rs. 20,000/- p.m. On 29.12.2012 at about 7.00 am, the appellant was going on motor bike No. KA-06-H-918 from Bellur to Kadaha village on Bangalore-Mangalore highway for pigmy collection, slowly and carefully. At about 7.30 am in front APMC ground, a car bearing No. KA-18-N-6765 driven by its driver came from backside in a rash and negligent manner and dashed against the bike of the appellant. Due to impact, the appellant sustained grievous injuries. He was taken to Adichunchanagiri Hospital, Nagamangala. After preliminary treatment, the appellant was shifted to Manipal hospital, Bangalore, where he was treated as inpatient for a week and he underwent surgery. The appellant incurred Rs. 5,00,000/- towards medical expenses. He examined PW2 Dr. Raghavendra Reddy, who opined that the injury to right ankle has caused permanent disabilities to the extent of 42% to the limb and 14% to the whole body. The appellant requires Rs. 40,000/- for future surgery for removal of implants. The appellant sustained abrasions all over the body, bimalleolar fracture of right ankle and took treatment in Manipal hospital from 29.12.2012 to 2.01.2013 and underwent ORIF on 31.12.2012. The doctor opined that the appellant has restricted movement of right ankle which caused permanent disability of 14% to his whole body.

The appellant has produced medical bills amounting to Rs. 73,364/- which are supported by prescriptions. Inspite of best medical treatment, the appellant is suffering from the physical disability. Due to the accidental injuries and physical disability, it is not possible for him to carry on his profession as before. The doctors have advised rest. The appellant is taking follow up treatment. Further case of the appellant is that, he has spent huge amount for treatment, conveyance, nourishing food and attendant charges. Therefore, he filed a claim petition under Section 166 of M.V. Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. To substantiate his case, he examined himself as PW1 and PW2 as Dr. Raghavendra Reddy and got marked documents as Exs. P1 to P14. Respondents did not get mark any documents. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum of Rs. 2,38,000/- as compensation under different heads with interest at 9% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, so far as it relates to pain and sufferings, medical and traveling expenses, attendant charges, special diet etc. loss of future earning capacity and also disability on account of the injuries sustained in the road traffic accident, appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent.

Sri S.B. Halli, learned counsel appearing for the appellant submits that, The Tribunal erred in not assessing the reasonable income of the appellant as the appellant was working as pigmy collector and getting income of more than Rs. 20,000/- p.m. and Rs. 8,000/- assessed by the Tribunal is lower side as the accident occurred on 29.12.2012. Therefore, income of the appellant may be reassessed reasonably and award reasonable compensation towards all heads by modifying impugned judgment and award passed by the Tribunal.

Further he submitted that the appellant underdone treatment for five days in the hospital and there is permanent disability assessed by the Doctor at 42% to the limb and 14% to the whole body and he has taken bed rest for more than 3 months. The disability is permanent in nature and he has to suffer through out his life and he requires some reasonable amount towards future medical expenses. This matter is not looked into nor appreciated by the Tribunal. Therefore, impugned judgment and award passed by the Tribunal is liable to be modified awarding just and reasonable compensation.

Per contra, Sri. H.N. Keshava Prashanth, the learned counsel appearing for the 2nd respondent-Insurer inter alia contended and substantiated that, the impugned judgment and award passed by Tribunal is just and proper and is passed after considering the oral and documentary evidence and rightly assessed the income of the appellant at Rs. 8,000/- p.m. as he has not produced any documents to show his income as Rs. 20,000/- and the Tribunal rightly awarded compensation under all conventional heads and interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

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

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that the appellant was aged about 60 years as on the date of accident and hale and healthy and working as a pigmy collector, getting income of Rs. 20,000/- p.m. But, the Tribunal took only Rs. 8,000/- p.m. as his income, which is on the lower side. The appellant met with an accident on 29.12.2012 and sustained grievous fracture injuries and undergone one surgery. The doctor has opined that the injury to right ankle has caused permanent disability to the extent of 42% to the limb and 14% to the whole body. Taking all these aspects into consideration, we are of the view that the appellant has made out a case for enhancement of reasonable compensation under different heads. Further, the income of the appellant assessed by the Tribunal is on the lower side and having regard to the age, avocation and year of accident, we deem it fit to reassess the income at Rs. 10,000/- per month, to meet the ends of justice and appropriate multiplier applicable is ''9'' considering the age of the appellant who was aged about 60 years as on the date of accident. Taking into consideration all these aspects, we deem fit to award Rs. 50,000/- towards pain and sufferings as against Rs. 30,000/-, Rs. 30,000/- (Rs. 10,000/- x 3 months) towards loss of income during laid up period as against Rs. 16,000/-, Rs. 40,000/- towards loss of amenities, Rs. 1,51,200/- (Rs. 10,000/- x 12 x ''9'' x 14/100) towards loss of future earning capacity as against Rs. 86,400/- and Rs. 10,000/- towards future medical expenses.

However, the Tribunal has rightly awarded a sum of Rs. 75,000/- towards medical expenses and Rs. 10,000/- towards Nourishment, attendant charges and conveyance. Therefore, interference by this Court is not called for.

Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award dated 14.11.2014 passed by the Tribunal in MVC No. 2293/2013 is hereby modified. The total compensation payable comes to Rs. 3,66,200/- with 9% interest per annum on the enhanced sum as against Rs. 2,38,000/- and the break-up is as follows:

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,28,200/- with interest at 9% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment and award.

On such deposit, 50% shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Grameena Bank, in the name of the appellant for a period of five years and renewable for another five years, with liberty to him to withdraw the periodical interest accrued on it.

The remaining 50% shall be released in favour of the appellant, immediately, on deposit by the Insurer.

Draw the award, accordingly.