B.C. Thimmegowda vs B.R. Annegowda and Others

N.K. Patil, J.—This appeal by the injured claimant is directed against the impugned judgment and award dated 27th April 2013, passed in MVC No. 72/2011, by the Senior Civil Judge and Motor Accident Claims Tribunal, Channarayapatna, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 4,76,800/-, awarded in his favour as against his claim for Rs. 25,00,000/-, is inadequate.

The appellant claims to be aged about 46 years and working as agriculturist, pharmacist and also an LIC commission agent, earning a sum of Rs. 50,000/- per month. He was hale and healthy prior to the date of accident. That at about 12:15 P.M., on 25-04-2011, when the appellant was going on his Hero Honda Motor Bike bearing Registration No. KA-13/Q-3599, on the left side of the Bagur Road, near P. Dasapura gate, at that time, the driver of a Tractor bearing Registration No. KA-13/TA-6876 came from opposite direction in a rash and negligent manner and dashed against the bike, as a result of which, the appellant sustained bodily injuries.

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 27th April, 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. 4,76,800/- 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 second 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 two simple injuries and one grievous injury to his right leg, i.e. comminuted fracture of right femur and tibia and was in-patient for a period of 29 days and also took follow-up treatment for nearly three months and therefore, he has to be awarded reasonable compensation.

Learned counsel appearing for appellant, Smt. Kavitha H.C., at the outset submitted that the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of amenities, discomfort and unhappiness, loss of income during treatment period and also loss of future income. To substantiate her submission, she submitted that the appellant was aged about 46 years at the time of accident and sustained totally three injuries out of them, two are simple injuries and one is grievous injury, i.e. comminuted fracture of right femur and tibia and the Doctor has assessed 40% functional disability towards his right leg. She submitted that if 1/3rd of 40% is taken, then, the whole body disability would be 13.33%, which may be rounded off to 14% and reasonable compensation be awarded towards loss of future income, loss of amenities, discomfort and unhappmess, injury pain and sufferings and conveyance, nourishing food and attendant charges. She also submitted that the Doctor has opined that, the appellant was operated for his right leg twice by inserting the rod, plate and screws and he requires a sum of Rs. 40,000/- towards future medical expenses. She further submitted that the monthly income assessed by Tribunal is also on the lower side, as the accident is of the year 2011 and that the appellant was working as an agriculturist, pharmacist and also an LIC Commission Agent, earning substantial sum. Therefore, she submitted that reasonable income may be re-assessed and reasonable enhancement be made under all the heads including future medical expenses and also loss of future income, by modifying the impugned judgment and award passed by Tribunal.

Per contra, learned counsel appearing for Insurer sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due consideration of the entire material available on file and also taking into consideration the age, avocation, year of accident, nature of injuries sustained, nature and duration of treatment undergone, functional disability assessed by Doctor, etc. and hence, interference in the same is uncalled for.

After hearing learned counsel appearing 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?" 10. After perusal of the entire material available on file, it is 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 46 years and working as an agriculturist. The Tribunal, after assessing the oral and documentary evidence available on file, and taking into consideration the nature of injuries sustained, duration of treatment undergone, etc., has rightly awarded compensation of a sum of Rs. 2,50,000/- towards medical expenses, as per the medical bills and prescriptions including conveyance, nourishing food and attendant charges. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under other heads, i.e. injury, pain and sufferings, loss of amenities, loss of future earnings and loss of income during treatment period and future medical expenses is concerned, the same is on the lower side and needs to be re-determined. Admittedly, in view of the road traffic accident, the appellant has sustained three injuries, out of which, two are simple injuries and one is grievous injury, i.e. fracture of right femur and tibia. Doctor has assessed 40% functional disability towards right leg. Out of the same, if 1/3rd is taken, it comes to 13.33%, which may be rounded off to 14% towards whole body disability, to meet the ends of justice. The appellant being aged about 46 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from work for a period of not less than three months. Further, it emerges that the monthly income assessed by Tribunal is on the lower side and having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at Rs. 6,500/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for nearly 29 days on account of the injuries sustained in the road traffic accident. 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. Further, it can be seen that the Doctor has deposed that the appellant requires a sum of Rs. 40,000/- towards future medical expenses. Considering the gravity of the injuries sustained and age of the appellant and nature of avocation, we accept the deposition made by the Doctor and inclined to enhance the compensation towards future medical expenses also. Further, since the appellant was aged about 46 years at the time of accident, the proper multiplier applicable is ''13'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Therefore, having regard to the age, avocation, nature of injuries, functional and whole body disability, and the facts and circumstances of the case on hand, we award a sum of Rs. 75,000/- towards injury, pain and suffering as against Rs. 60,000/-; Rs. 19,500/- towards loss of income during treatment period, at the rate of Rs. 6,500/- per month for a period of three months as against Rs. 12,500/-; Rs. 40,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 20,000/-; Rs. 40,000/- towards future medical expenses as against Rs. 20,000/-; and Rs. 1,41,960/- (i.e. Rs. 6,500/- x 12 x''13''x 14/100) towards loss of future income as against Rs. 1,24,800/- awarded by Tribunal.

Further, learned counsel appearing for claimant/appellant vehemently submitted that the rate of interest awarded by Tribunal at 6% p.a. is also on the lower side as the accident has occurred on 25-04-2011 and in view of the law laid down by the Hon''ble Apex Court and this Court in catena of decisions, at least 8% to 10% interest per annum may be awarded, to meet the ends of justice and the impugned judgment and award be modified accordingly.

As rightly pointed out by learned counsel appearing for appellant, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred during 2011. Therefore, in view of the law laid down by the Hon''ble Apex Court and this Court in catena of decisions and also considering the facts and circumstances of the case, we deem it fit and proper to award rate of interest at 9% per annum on the enhanced compensation, from the date of petition till the date of realization..

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 27th April 2013, passed in MVC No. 72/2011, by the Senior Civil Judge and Motor Accident Claims Tribunal, Channarayapatna, is hereby modified, awarding a sum of Rs. 5,66,460/- as against Rs. 4,76,800/- awarded by Tribunal, with interest at 9% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows:

The total compensation would workout to Rs. 5,66,460/- as against Rs. 4,76,800/-. The enhanced compensation would be Rs. 89,660/- with 9% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 89,660/-, with interest thereon at 9% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, the entire sum shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.