B.K. Borappa vs The TATA AIG Gen. Ins. Co. Ltd. and Others

N.K. Patil, J.—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 03/12/2014, passed in MVC No. 2369/2013, by the XVI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore City (SCCH-14), (hereinafter referred to as ''Tribunal'' for short).

The Tribunal, by its judgment and award has awarded a sum of Rs. 2,12,000/- after deducting 25% towards contributory negligence on the part of the appellant under different heads with interest at 9% p.a., from the date of petition till payment as against the claim of Rs. 20,00,000/-, on account of the injuries sustained by him in the road traffic accident.

In brief, the facts of the case are:

"The appellant claims to be aged about 60 years at the time of the accident. He was hale and healthy prior to the accident, agriculturist and also doing business of selling flowers and vegetables. That on 03.2.2013 at about 11.20 a.m. appellant was crossing NH-4 express road and other service road near Agarwal Bhavan Hotel, NH-4, Tumkur Main service road, Dasanapura, Bangalore, at that time, the driver of Mahindra XUV 500 bearing No. KA.01.MJ.2497 came in a rash and negligent manner and dashed against him. Due to which, he fell down and sustained grievous injuries all over the body. Immediately, he was taken to Ramaiah Harsha Hospital at Nelmangala, for necessary treatment and then shifted to Victoria Hospital and then referred to ESI and BGS Hospital. In all, he has taken treatment as inpatient for 30 days and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment."

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 2,12,000/- as compensation under different heads after deducting 25% towards contributory negligence on the part of the appellant, with interest at 9% p.a., from the date of petition till its payment.

Being dis-satisfied with the quantum of compensation awarded and 25% contributory negligence fixed on the part of the appellant by the Tribunal, the appellant has presented this appeal.

The submission of the learned counsel Sri. Ganapathi C.V., appearing for appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness and towards loss of future earnings and what is awarded is inadequate and it requires to be enhanced reasonably. Further, he submits that the Tribunal has erred in not assessing reasonable income of the appellant as he is aged about 60 years, agriculturist and flower and vegetable vendor and the accident has occurred in the year 2013. Therefore, he submitted that, income of the appellant may be reassessed reasonably between 9 to 10 thousand per month. Further, he submits that, on account of grievous injuries sustained by the appellant in the accident, he has taken treatment as inpatient for 30, undergone two surgeries, implants were inserted and the injuries has resulted in permanent disability. He examined the Doctor, who has assessed the permanent disability at 72% to his limbs and at 24% to the whole body. But the Tribunal has erred in assessing the disability at 18% to the whole body. Due to which, he has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for five months, discomforts and unhappiness persists through out his life, it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier and he requires some amount towards future medical and other incidental expenses. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation under different heads. He further submits that the Tribunal has erred in fixing 25% negligence on the part of the appellant and therefore, it is liable to be set aside as there is no negligence on the part of the appellant. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for R1-insurer, inter- alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for respondent No. 1 and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

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

The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex. P3-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 60 years, agriculturist and fruits and vegetable vendor by profession. It is the case of the appellant that he was earning Rs. 8,000/- per month. But he has not produced any credible documents to prove the same. The Tribunal has assessed the income at Rs. 5,000/- per month which is on the lower side and is liable to be enhanced reasonably. Having regard to the age and occupation of the appellant and the year of accident, we re-assess his income at Rs. 7,500/- per month to meet the ends of justice. In the accident, appellant has sustained poly trauma comminuted displaced surgical neck fracture of humerus, comminuted fracture both bones right leg, middle third, for that, he has taken treatment as inpatient for 30 days, underwent two surgeries and implants were inserted. During the said period, he might have undergone lot of pain and agony, he might have spent considerable amount towards medical expenses, conveyance and other incidental expenses, and as per the advise of the Doctor he might have taken bed rest and follow-up treatment atleast for five months, during the said period, he might have incurred financial loss as he could not have attended his work regularly. Further, it is the case of the appellant that, on account of grievous injuries sustained by him in the accident, he has suffered permanent disability. To prove the same, he examined the Doctor as PW2, who after clinical examination has assessed the permanent disability at 72% to the limbs and at 24% to the whole body and we accept the same instead of 18% assessed by the Tribunal. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity. As per the evidence of the Doctor, appellant has to undergo one more surgery for removal of implants and for that, he may require some reasonable amount towards medical and incidental expenses. Therefore, the appellant has to be compensated reasonably. The proper multiplier applicable is ''9'' as rightly adopted by the Tribunal since appellant was aged about 60 years as on the date of the accident and we accept the same. Taking all these aspects into consideration, we award a sum of r75,000/- towards injury, pain and suffering as against Rs. 50,000/-, Rs. 25,000/- towards conveyance, nourishing food and attendant charges as against Rs. 15,000/-, Rs. 37,500/- towards loss of income during the treatment period at the rate of Rs. 7,500/- per month for five months, Rs. 1,94,400/- ( Rs. 7,500/- x 12 x 9 x 24%) towards loss of future earnings as against Rs. 97,200/-, Rs. 40,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 20,000/-.

The Tribunal after due appreciation of the oral and documentary evidence available on file has justified in awarding a sum of Rs. 65,000/- towards medical expenses and Rs. 20,000/- towards future medical expenses, including incidental expenses and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 4,56,900/- instead of Rs. 2,82,200/-and the break- up is as follows:

Regarding contributory negligence, learned counsel appearing for the appellant submitted that there is no negligence on the part of the appellant and therefore, 25% negligence fixed by the Tribunal on the part of the appellant cannot be sustained and is liable to be set aside. The said submission cannot be accepted for the reason that, the Tribunal, after due consideration of the oral and documentary evidence available on file has recorded the finding of fact holding that there is contributory negligence on the part of the appellant and on the part of the driver of the offending vehicle and fixed negligence in the ratio of 75:25 i.e. 75% on the part of the driver of the offending vehicle and 25% on the part of the appellant. The reasoning given by the Tribunal for fixing contributory negligence is just and reasonable and therefore, interference by this Court is uncalled for.

Out of Rs. 4,56,900/-, if 25% ( Rs. 1,14,225/-) is deducted towards contributory negligence on the part of the appellant, remaining compensation comes to Rs. 3,42,675/-. The enhancement comes to Rs. 1,30,675/-( Rs. 3,42,900/- - Rs. 2,12,000/-) with interest at 9% p.a. from the date of petition till its realization.

Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 03/12/2014, passed in MVC No. 2369/2013, by the XVI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-14), stands modified, awarding the additional compensation of Rs. 1,30,675/- with interest at 9% p.a., from the date of petition till its realization.

The first respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,30,675/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, the entire enhanced compensation with interest shall be released in favour of the appellant.

Draw the award, accordingly.