Gangadhara Karkera vs Jacob Dennis Sequiera and Others

N.K. Patil, J—This appeal by the claimant is directed against the impugned judgment and award dated 12th September, 2013, passed in MVC No. 359/2012 by the II Additional Senior Civil Judge, Motor Accident Claims Tribunal, Mangalore, D.K. (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 10,33,332/-, awarded in his favour as against his claim for Rs. 20,00,000/-, is inadequate.

The appellant claims to be aged about 54 years and working as a Site Supervisor, earning a sum of Rs. 15,000/- per month and hale and healthy prior to the date of accident. That at about 3:30 P.M., on 20-11-2011, when the appellant was proceeding on his TVS Max Motor Cycle bearing Registration No. KA-19/R-6670, and reached in front of Vikas College of Gurunagar in Padavu Village of Mangalore Taluk, at that time, a Tata Indica Car bearing Registration No. KA-19/N-9228 driven by its driver in a rash and negligent manner from back side in order to overtake the vehicle of the appellant and dashed against the vehicle of the appellant. Due to the impact, the appellant sustained fracture of 4th and 8th ribs on the right side, fracture of mid shaft of right clavicle, contusion over right side of the head, with underlying fracture of right temporal bone and other injuries all over the body. Immediately, the appellant was shifted to A.J. Hospital, Mangalore, where he was admitted as in-patient.

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. 20.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 12th September, 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. 10,33,332/- 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. Pundikai Ishwara Bhat, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the appellant, for the reason that the appellant was aged about 54 years and working as Site Supervisor, earning a sum of Rs. 15,000/- per month and in support of the same, the appellant has also produced Ex. P10, Salary Certificate and also examined the employer. But, disbelieving the same, the Tribunal has assessed the income of the appellant at only Rs. 4,500/- per month. Therefore, he submitted that the reasonable income of the appellant may be re-assessed and reasonable compensation be awarded on account of the grievous injuries and disability sustained by the appellant in the road traffic accident. He further submitted that, on account of the grievous injuries sustained, the appellant has undergone treatment for a period of 76 days as inpatient in the Hospital and the Doctor, after looking at the nature of injuries sustained by the appellant and after clinical and radiological examination, assessed the permanent whole body disability at 100%. The appellant, being aged about 54 years, has to pull on the life with the said disability for the rest of his life and he cannot do any work and instead, he has to have the assistance of one attendant to carry on his day-to-day activities and he has become a total dependent. Further, on the advise of the Doctor, the appellant has taken follow-up treatment and on account of the permanent disability, the appellant has lost the future happiness, comforts and amenities in life. He has undergone lot of unsaid pain and agony during the treatment and follow-up treatment period. Therefore, he submitted that the appellant has to be compensated towards future attendant charges and also future medical expenses. All these aspects of the matter have not been properly looked into or considered by Tribunal, while computing compensation payable to the appellant under various heads.

Further, learned counsel appearing for appellant vehemently submitted that the rate of interest awarded by Tribunal at 6% per annum is also on the lower side as the accident has occurred during the fag end of the year 2011, i.e. on 20-11-2011. In view of the ratio of 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. He therefore submitted that the impugned judgment and award passed by Tribunal is liable to be modified by enhancing reasonable compensation and also rate of interest.

As against this, Shri. O. Mahesh, learned counsel appearing for second respondent/Insurance Company, 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 hence, interference in the same is uncalled for. He further submitted that the, Tribunal, after taking into consideration the age and avocation of appellant, nature of injuries sustained, nature and duration of treatment undergone, disability assessed by Doctor, etc. has awarded just and reasonable compensation on account of the grievous injuries sustained in the road traffic accident. In fact, the tribunal is not justified in assessing the whole body disability at 100%. However, having regard to the totality of the case, interference in the impugned judgment and award passed by Tribunal is uncalled for.

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, the only point that arise for our consideration in this appeal is,

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

After perusal of the entire material available on file, it can be seen that, occurrence of accident on the aforesaid date and time and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 54 years and working as a Site Supervisor. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 2,19,332/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under injury, pain and sufferings, loss of amenities, loss of future earnings, loss of income during treatment period, future medical/attendant charges and conveyance, nourishing food and attendant charges 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 grievous injuries, viz. fracture of 4th and 8th ribs on the right side, fracture of mid shaft of right clavicle, contusion over right side of the head, with underlying fracture of right temporal bone and other injuries all over the body.

PW4, Doctor, after examination of appellant, deposed that there is memory loss, personality changes, disorientation of time, place and person and he has complex integrated functional disturbances, which leads to the appellant would not be able to care for himself and he needs anti seizure prophylaxis drugs and he is on treatment for organic psychiatric disorder and also deposed with regard to future medical treatment to be provided to the appellant as per the Disability Certificate at Ex. P9. While assessing the functional disability, PW4, Doctor opined that the appellant was not in a position to move from the bed and on examination he found the following problems:

"1) He has memory loss, personality changes, disorientation of time, place and person;

2) He has complex integrated functional disturbances and cannot care for self and he needs support of two persons for his daily living activities;

3) He has severe bowel and bladder incontinence;

4) He needs anti-seizure prophylaxis drugs indefinitely

5) He is on treatment for organic psychiatric disorder and it is also deposed by PW4 that the above said disability created due to the head injury and other injuries sustained in the accident and permanent disability was assessed at 100% with respect to the whole body and on examination of the petitioner and on going through the discharge summary, case sheet, neurological examination and per the guidelines provided, assessed the disability of the appellant."

The Tribunal, after critical evaluation of the oral and documentary evidence has accepted the disability assessed by Doctor at 100%. The same being just and proper, we also accept the same. The appellant being aged about 54 years, has to endure this disability for the rest of his life and has to depend on an assistant to carry on his day-to-day activities. Because of the injuries sustained, he must have been away from work for a period of not less than six months.

It is seen that the monthly income assessed by Tribunal at Rs. 4,500/- is on the lower side. Even though the appellant has produced the salary Certificate at Ex. P10 and examined the employer, he has not produced the mode of payment. He has not produced the bank statement or any receipt for having being paid the said salary. Therefore, 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 quite a long period on account of the grievous injuries and disability sustained in the road traffic accident. During this period, he must have undergone lot of untold pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Further, as per the evidence of the Doctor, the appellant has to be under continuous medication and cannot continue his work in future and depend upon an assistant to do his daily chores. For the age of the appellant, the proper multiplier applicable is ''11'' 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 , as rightly adopted by Tribunal. Therefore, having regard to the age, avocation, nature and duration of treatment undergone, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of Rs. 1,50,000/- towards injury, pain and suffering as against Rs. 1,00,000/-; Rs. 50,000/- towards conveyance, nourishing food and attendant charges as against Rs. 30,000/-; Rs. 39,000/- towards loss of income during treatment period, at the rate of Rs. 6,500/- per month for a period of six months as against Rs. 10,000/-; Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 30,000/-; Rs. 2,00,000/- towards future medical expenses and also future attendant charges as against Rs. 50,000/-; and Rs. 8,58,000/- (i.e. Rs. 6,500/- x 12 x ''11'' x 100%) towards loss of future income as against Rs. 5,94,000/- awarded by Tribunal.

Further, as rightly pointed out by learned counsel appearing for appellants, the rate of interest awarded by Tribunal at 6% per annum is also on the lower side, as the accident has occurred on 20-11-2011. Therefore, as per the ratio of 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 as against 6% per annum, awarded by Tribunal, on the enhanced compensation.

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 12th September 2013 passed in MVC No. 359/2012 by the II Additional Senior Civil Judge, Motor Accident Claims Tribunal, Mangalore, D.K. is hereby modified, awarding a sum of Rs. 16,16,332/- as against Rs. 10,33,332/- 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. 16,16,332/- as against Rs. 10,33,332/-. The enhanced compensation would be Rs. 5,83,000/- with 9% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 5,83,000/-, 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. 4,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized/Grameena Bank, for a period of five years, renewable by another five years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 1,83,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.