C. Kumar vs The Managing Director, BMTC and Others

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 8th October 2010 passed in M.V.C. No. 7506/2008 on the file of the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal at Bengaluru, (hereinafter referred to as ''Tribunal'' for short) seeking enhancement of compensation.

The Tribunal by its judgment and award, has awarded a sum of Rs. 5,94,000/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the grievous injuries sustained by the appellant in the road traffic accident. The appellant has presented this appeal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.

The brief facts of the case of the appellant as per the claim petition are that, he was aged about 30 years, a two wheeler mechanic and hale and healthy prior to the accident. He met with an accident on 24.06.2008 at about 9.30 p.m. due to the rash and negligent driving by the driver of the BMTC Bus -offending vehicle bearing Regn. No. KA-01/F-3808 involved in the accident, in which he sustained grievous injuries i.e. abrasion present over right leg, tenderness present over right forearm and abrasion present over right side back and amputation of left leg above the knee. On account of which, he undergone treatment for a period of 46 days in the Hospital. He had spent huge amounts towards conveyance, nourishment and attendant charges and he has suffered mental agony and taken treatment as inpatient. Further, it is his case that he cannot work as he was doing prior to the accident as two wheeler mechanic due to amputation of left leg above the knee and the Doctor has advised for bed rest and follow up treatment for a period of six months and he has to suffer discomfort, unhappiness throughout his life and he has to be compensated by awarding reasonable compensation towards loss of future income. Further it is the case of the appellant that the Tribunal has erred in not awarding any compensation towards future medical expenses, taking the income of the appellant as Rs. 3,000/- p.m., which is on lower side and the same is to be enhanced by modifying the impugned judgment and award passed by the Tribunal. Taking all these facts into consideration, he filed a claim petition under Section 166 of M.V. Act before the Tribunal claiming compensation against the respondents. The said matter had come up for consideration before the Tribunal. The Tribunal in turn after hearing both sides and after appreciating the oral and documentary evidence available on record, has allowed the said claim petition in part and awarded a sum Rs. 5,94,000/- with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

The submission of learned counsel appearing for the appellant at the outset is that, the Tribunal has erred in not assessing reasonable income of the appellant and what is taken is on lower side. The appellant was aged about 30 years and a two wheeler mechanic and hale and healthy prior to the accident. The grievance of the appellant is that he has examined the Doctor and the Doctor has assessed the disability at 80% to the left lower limb and the Tribunal has taken only 75%, when in fact, it ought to have taken disability at 100%. Considering the nature of injury and the avocation of the appellant, the amount awarded towards loss of amenities, happiness and disability, loss of future income is on lower side and also the Tribunal has not awarded any compensation towards future medical expenses including the incidental expenses. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing reasonable compensation.

As against this, the learned Counsel appearing for the 2nd respondent - Insurer inter alia, sought to substantiate that, the impugned judgment and award passed by the Tribunal is after due consideration of oral and documentary evidence available on record. However, he submitted that as per the evidence on record, income of the appellant may be re-assessed reasonably and award compensation under the head permanent disability, unhappiness and future medical expenses and also loss of future income, in accordance with law.

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

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

Occurrence of the accident and the resultant injuries sustained by the appellant in the road traffic accident are not in dispute. On account of which, he undergone treatment for a period of 46 days in the Hospital and undergone surgery for amputation of left leg above the knee. Considering the nature of injury sustained, we are of the opinion that the Tribunal justified in assessing 75% permanent disability to whole body and the same is after due appreciation of the evidence of Doctor, who treated the appellant for the injuries sustained by him in the road traffic accident as referred above and we accept the same. The appellant has undergone mental agony during the treatment period and might be advised bed rest atleast for a period of six months. The discomfort, unhappiness and permanent disability persists through out his life as he is a two wheeler mechanic and he cannot sit, stand conveniently and repair two wheeler as he was doing prior to the accident.

Taking all relevant facts into consideration referred above, we deem fit to award a sum of Rs. 1,50,000/- towards injury, pain and suffering as against Rs. 75,000/-, Rs. 75,000/- towards medical expenses as against Rs. 50,000/-, Rs. 30,000/- towards loss of income during the laid up period at the rate of Rs. 5,000/- p.m. for a period of six months, Rs. 1,00,000/- towards loss of happiness and future amenities as against Rs. 10,000/-, Rs. 7,65,000/- (Rs. 5,000/- x 12 x 75 x 17/100) towards Loss of future earning as against Rs. 4,59,000/- and Rs. 50,000/- towards Future medical expenses including incidental expenses. In all, the claimant is entitled to total compensation of Rs. 11,70,000/- as against Rs. 5,94,000/- awarded by the Tribunal. There would be enhancement of Rs. 5,76,000/- with interest at the rate of 6% p.a. from the date of petition till the date of realization.

Accordingly, the appellant is entitled for total compensation of Rs. 11,70,000/- with 6% interest per annum. The break- up is as follows:

Having regard to the facts and circumstances of the case referred above, the instant appeal filed by the appellant is allowed in part. The impugned judgment and award dated 8th October 2010 passed in M.V.C. No. 7506/2008 on the file of the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore is hereby modified awarding a sum of Rs. 5,76,000/- with interest at 6% p.a. on the enhanced compensation amount from the date of petition till the date of realization, in addition to the compensation awarded by the Tribunal.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 5,76,000/- with interest at 6% p.a. from the date of petition till the date of realization excluding the interest for the delayed period of 459 days, within a period of three weeks from the date of receipt of a copy of the judgment and award.

Out of the enhanced compensation of Rs. 5,76,000/-, Rs. 4,00,000/- with proportionate interest shall be invested in Fixed Deposit in the name of the appellant - Mr. C. Kumar in any Nationalized or Scheduled Bank or Grameena Bank, for a period of ten years and renewable for another five years and he is entitled to withdraw the periodical interest accrued on it.

Remaining amount of Rs. 1,76,000/- with proportionate interest shall be released in favour of the appellant immediately on deposit by the 2nd respondent - Insurer.

Draw the award, accordingly.