B.N. Somashekara vs National Insurance 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 12.05.2011, passed in MVC No. 3106/2009, by the XIX Addl. SCJ and MACT, Bangalore, (SCCH-17), (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 1,93,000/- awarded by the Tribunal with interest at 6% p.a., on Rs. 1,73,000/- from the date of petition till its realization, as against the claim of Rs. 25,00,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellant claims to be aged about 32 years at the time of the accident. He was hale and healthy prior to the accident, agriculturist and Milk vendor by profession and earning Rs. 25,000/- per month. That on 5.7.2008 at about 8.00 p.m. when the appellant was proceeding in a Hero Honda Splendor Motor cycle bearing Reg. No. KA.13.S.4516 as a pillion rider which was ridden by its rider, Manjunath, in order to go to Channarayapatna from his village on M. Shivara Kembalu road and when he reached near Dasapura Rangegowda land, at that time, the rider of TVS motor cycle bearing Reg. No.KA.44.E.9594 came from opposite direction at high speed in a rash and negligent manner and dashed against the motor cycle and it is an head on collusion between the two vehicles. Due to which, appellant fell down and sustained grievous injuries. Immediately, he was shifted to Kumar Nursing Home, Channarayapatna and after first aid, he was shifted to Hosmat Hospital, where he was taken treatment as inpatient from 6.7.2008 to 9.7.2008, undergone two surgeries, implants were inserted 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. The Doctor has assessed the physical disability at 62% to the limb and 25% to the whole body. 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. 1,93,000/- as compensation under different heads with interest at 6% p.a, on Rs. 1,73,000/- from the date of petition till its realization, directing respondent No. 1 to indemnify the award amount and dismissing the petition against respondent Nos. 3 and 4..

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards medical expenses on the basis of the medical bills and prescriptions produced by the appellant, towards loss of income during the period of treatment, and in not awarding any compensation towards loss of future earnings on account of disability suffered by him and what is awarded is on the lower side. He further submits that the income of the appellant assessed by the Tribunal is on the lower side and is liable to be re-assessed, on the ground that, appellant was aged about 32 years, hale and healthy prior to the accident, Agriculturist and Milk vendor by profession and therefore, the Tribunal ought to have assessed his income atleast at Rs. 4,500/- to Rs. 5,000/- per month. He further submits that, on account of the injuries sustained by the appellant in the accident, he has suffered permanent disability and the Doctor has assessed the disability at 62% to the limb and at 25% to the whole body. But the same has not been accepted by the Tribunal and no compensation is awarded towards loss of future earnings. Further, he submits that on account of the injuries sustained by the appellant, he has taken treatment as inpatient for 7 days on two occasions, undergone two surgeries, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, he has taken bed rest and follow up treatment for more than three months, discomforts and unhappiness persists through out his life and it would affect his earning capacity as he was an agriculturist and milk vendor by profession 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 expenses. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for insurer, inter- alia, sought to substantiate that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file. He has further submitted after careful evaluation of the original records that, the Tribunal has justified in awarding a sum of Rs. 26,000/- towards medical expenses, on the basis of the medical bills and prescriptions produced by the appellant and therefore, it does not call for interference.

After careful consideration of the submissions made by learned counsel appearing for both the parties 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. P7-wound certificate are not in dispute. The Tribunal, taking into consideration the nature of injuries sustained, the nature and duration of the treatment taken including the oral and documentary evidence available on file, has justified in awarding a sum of Rs. 95,000/- towards injury, pain and sufferings, Rs. 26,000/- towards medical expenses, Rs. 10,000/- towards conveyance, nourishing food and attendant charges, Rs. 30,000/- towards loss of amenities, discomforts and unhappiness and Rs. 20,000/- towards future medical expenses and therefore, it does not call for interference.

However, the Tribunal has erred in not awarding reasonable compensation towards loss of income during treatment period and in not awarding any compensation towards loss of future income on account of the permanent disability suffered by the appellant and therefore, it needs to be awarded. Admittedly, it is not in dispute that, appellant was aged about 32 years, Agriculturist and Milk Vendor by profession and on account of fracture of right patella, type 4 schatzker tibial condyle fracture and type 3 tibial spine fracture, he has undergone surgery, implants were inserted and removed and now he is not in a position to do his work. As per the evidence of the Doctor, appellant suffers from permanent physical disability at 62% to the particular limb and at 25% to the whole body. It is little exaggeration. 1/3rd of 62% comes to 20.67 and it is rounded off to 21% that would be whole body disability Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity. Further, the Tribunal has assessed the income of the appellant at Rs. 4,000/- per month which is on the lower side and it needs to be re-assessed. Having regard to the age, occupation of the appellant and year of the accident, we reassess his income at Rs. 5,000/- per month to meet the ends of justice instead of Rs. 4,000/- per month assessed by the Tribunal. The proper multiplier applicable would be ''16'' since the appellant was aged about 32 years as on the date of the accident in the light of the law laid down by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . It is also not in dispute that on account of the injuries, appellant has undergone treatment as inpatient for 7 days on two occasions, undergone two surgeries. We presume that, on the advise of the Doctor, he might have taken bed rest and follow up treatment atleast for three months, during the said period he might have incurred financial loss as he could not have attended the duty. Taking these two aspects into consideration, we award a sum of Rs. 15,000/- towards loss of income during the period of treatment for three months at the rate of Rs. 5,000/- per month instead of Rs. 12,000/- and Rs. 2,01,600/- Rs. 5,000 x 12 x 16 x 21%) towards loss of future earnings.

In all, the appellant is entitled to the total compensation of Rs. 3,97,600/- instead of Rs. 1,93,000/- and the break- up is as follows:

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 12.05.2011, passed in MVC No. 3106/2009, by the XIX Addl. SCJ and MACT, Bangalore, (SCCH-17), stands modified, awarding the compensation of Rs. 3,97,600/- instead of Rs. 1,93,000/-. There would be an enhancement of Rs. 2,04,600/- with interest at 6% p.a., from the date of petition till its realization.

The first respondent-Insurer is directed to deposit the enhanced compensation of Rs. 2,04,600/- with interest at 6% 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 first respondent-Insurer, out of the enhanced compensation of Rs. 2,04,600/-, 50% with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining 50% with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.