B.R. Darshan vs The Managing Director, B.M.T.C. and Others

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 26th February 2014, passed in MVC No. 3113/2011, by the Judge, Court of Small Causes and XXVI ACMM, Motor Accident Claims Tribunal, Bangalore City (SCCH-9), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 23,25,300/-, awarded in his favour as against his claim for Rs. 50,00,000/-, is inadequate.

The appellant claims to be aged about 25 years and working in Arokia Infotech, getting salary of a sum of Rs. 23,000/-per month and hale and healthy prior to the date of accident. That at about 9:20 A.M., on 01-04-2011, when the appellant was proceeding in motor cycle bearing Registration No. KA-05/HF-8469 on 27th Cross, Near Monotype, BSK 2nd Stage, at Extreme left side of the road, opposite to S.K. and N.K. Vidya Samsthe, at that time, a BMTC Bus being driven by its driver, in a rash and negligent manner, came and dashed against the motor cycle of the appellant. Due to the impact, he fell down and sustained crush injuries on his left leg. Immediately, he was shifted to Dr. Malathi Manipal Hospital, Jayanagar, Bangalore, where he took treatment as in-patient from 01-04-2011 to 21-05-2011 and the appellant underwent major surgeries and on 14-05-2011, amputation of above knee of the appellant was done and he took follow-up treatment.

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. 50.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 26th February, 2014. 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. 23,25,300/- 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.

The submission of the learned counsel appearing for appellant, Shri. A.S. Girish, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the appellant, for calculating compensation payable towards loss of future income and the compensation awarded under the said head is on the lower side. To substantiate the same, he submitted that the appellant was aged about 25 years, working as Accounts Manager, drawing salary of Rs. 16,800/- per month as per Ex. P6 and undergone treatment as in-patient for more than 51 days and underwent three surgeries. Further, the Doctor has assessed the permanent residual physical disability at 80% towards right lower limb and 35% towards whole body. The same cannot be sustained, considering the gravity of the injuries and also amputation of right leg above knee. Therefore, he submitted that the Tribunal ought to have assessed the reasonable income of the appellant and also reasonable whole body disability and awarded reasonable compensation under all the heads, on account of the grievous injuries and disability sustained by the appellant in the road traffic accident. The appellant has to pull on the life with the said disability for the rest of his life and he cannot do the work as he was doing earlier to the accident. Because of the amputation of right leg above knee, he cannot continue the said profession and therefore 100% disability may be assessed and the impugned judgment and award passed by Tribunal may be modified, by enhancing reasonable compensation.

As against this, learned counsel appearing for second respondent, inter alia, sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and also taking into consideration the age, avocation, nature of injuries, amputation of leg, nature and duration of treatment undergone, etc. and hence, interference in the same is uncalled for. However, he fairly submitted that the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness and therefore, reasonable compensation may be awarded towards loss of amenities, discomfort and unhappiness on account of disability, in accordance with law.

After hearing learned counsel for the appellant and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, the 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 25 years and working as Accounts Manager at Arokia Infotech. The Tribunal, after assessing the oral and documentary evidence available on file and taking into consideration the nature of injuries sustained, amputation of leg, nature and duration of treatment undergone, etc, has rightly awarded compensation of a sum of Rs. 4,42,136/- towards medical expenses, as per the medical bills and prescriptions, Rs. 1,50,000/- towards injury, pain and sufferings, Rs. 50,000/- towards conveyance, nourishing food and attendant charges and Rs. 1,08,000/- towards loss of income during laid up period. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under loss of future income is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness on account of permanent physical disability. Admittedly, in view of the road traffic accident, the appellant has sustained extensive degloving injury of the right leg extending from below the knee up to toes, sole was spared, compound comminuted fracture of both bones of the lower limb, transected anterior tibial vessels, near total amputation of the second toe, severe crush injury to the muscles in all the compartments. Further, on clinical examination, the Doctor found the following disabilities:

"1. Patient cannot stand or walk without support;

Wasting and weakness of muscles of right thigh;

Absence of lower limb distal to the right mid thigh Right above knee amputation;

Operated Scar measuring 12 cm at the summit of the amputation stump;

Restriction of Joint movements of right hip joint due to lack of leverage;

Shortening not commented on due to the amputation stump."

Further, PW2 deposed that on radiological examination, he found that transected end of femur at mid thigh level in above knee amputated stump right lower limb and opined that the patient suffers a permanent residual physical disability of 80% of the right lower limb which is about 35% of the whole body. But, the Tribunal, relying upon the oral evidence of the appellant and also his avocation, has assessed the whole body permanent disability at 270%. The same, in our opinion is on the lower side. Having regard to the age, avocation, nature of injuries, viz. amputation of right leg above knee, we re-assess the whole body disability at 70%, to meet the ends of justice. The appellant being aged about only 25 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he would not be in a position to do his work as before. However, having regard to the age, avocation and the year accident and also the documentary evidence, we accept the monthly income of the appellant assessed at Rs. 16,800/-, to meet the ends of justice. Since the appellant was aged about 26 years at the time of accident, as assessed by Tribunal, the proper multiplier applicable is ''17'' as per the decision of the Hon''ble 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 . 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. 1,00,000/- towards loss of amenities, discomfort and unhappiness as the Tribunal has not awarded any compensation under this head and Rs. 23,99,040/- (i.e. Rs. 16,800/-x 12 x ''17'' x 70/100) towards loss of future income as against Rs. 9,25,344/- awarded by Tribunal.

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 26th February 2014, passed in MVC No. 3113/2011, by the Judge, Court of Small Causes and XXVI ACMM, Motor Accident Claims Tribunal, Bangalore City (SCCH-9), is hereby modified, awarding a sum of Rs. 32,49,176/- as against Rs. 23,25,300/- 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. 32,49,176/- as against Rs. 23,25,300/-. The enhanced compensation would be Rs. 9,23,876/- with 9% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 9,23,876/-, 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, a sum of Rs. 8,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period often years, renewable by another ten years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 1,23,876/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.