Gangadharaiah vs Umesh and Others

N.K. Patil, J.—This appeal by the injured claimant is directed against the impugned judgment and award dated 2nd April 2013, passed in MVC No. 1491/2011, by the Presiding Officer, Fast Track -I and Additional Motor Accident Claims Tribunal, Tumkur, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 3,40,000/-, awarded in his favour as against his claim for Rs. 20,00,000/-, is inadequate.

The appellant claims to be aged about 37 years, working as a Secretary at KMF Dairy at Alilaghatta in Gubbi Taluk, earning a sum of Rs. 5,000/- per month and also earning a sum of Rs. 10,000/- per month from agricultural work. He was hale and healthy prior to the date of accident. That at about 5:00 P.M., on 17-05-2011, when the appellant was going in a motor cycle bearing Registration No. KA-06/EF-8858 as a pillion rider, ridden by his brother Karegowda, from Nittur towards Chelur side on Chelur-Nittur road, near Kodnagenhalli gate, another motor cycle bearing Registration No. KA-06/K-2259, ridden by its rider, at a high speed, in a rash and negligent manner, came from opposite direction, and without giving any indication, turned his vehicle and dashed against the motor cycle in which the injured claimant was proceeding as a pillion rider. Due to the impact, the claimant sustained grievous injuries.

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 2nd April, 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. 3,40,000/- with interest at 6% per annum on Rs. 3,15,000/-, (excluding an amount of Rs. 25,000/- awarded towards future medical expenses), 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 gone through the grounds urged in the memorandum of appeal filed by injured claimant and heard learned counsel for second respondent/Insurance Company, for considerable length of time.

It is the case of the injured claimant that the tribunal has grossly erred in not awarding reasonable compensation towards loss of amenities, discomfort and unhappiness. The compensation awarded under the said head is on the lower side and liable to be modified by enhancing the same. Further, it is the specific case of the appellant that the Doctor has assessed functional disability at 45% towards lower limb and 15% towards whole body. This aspect of the matter has not been properly looked into or considered or appreciated or awarded reasonable compensation towards loss of amenities, discomfort, unhappiness on account of permanent physical disability. Therefore, it is the case of the appellant that reasonable enhancement may be made under the aforesaid head and modify the impugned judgment and award passed by Tribunal.

As against this, learned counsel appearing for second respondent/Insurer, 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 after due consideration of the oral and documentary evidence available on file, nature of injuries sustained, nature and duration of treatment undergone and the quantum of compensation awarded by Tribunal is in consonance with the injuries sustained and hence, interference in the same is unwarranted.

After going through the grounds urged in the memorandum of appeal and hearing learned counsel for the second respondent/Insurer 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 and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 35 years and working as a Secretary at KMF Dairy, at Alilaghatta in Gubbi Taluk. The Tribunal, after assessing the oral and documentary evidence available on file and having regard to the age, avocation, nature of injuries sustained, nature and duration of treatment undergone, medical expenses and also the disability sustained by appellant, has rightly awarded compensation of a sum of Rs. 1,30,000/- towards medical expenses, as per the medical bills and prescriptions and also conveyance, nourishing food and attendant charges, Rs. 50,000/- towards injury, pain and sufferings, Rs. 60,000/- towards loss of income during treatment period and Rs. 25,000/- towards future medical expenses. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under loss of amenities, discomfort and unhappiness on account of disability 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 such as lacerated wound on right leg, lacerated wound over right middle 1/3rd, lacerated wound on right foot, fracture of both bones of right leg and as per the opinion of the Doctor, all the said injuries are grievous in nature. Further, PW2, Doctor has deposed that the appellant complained of the following problems:

"a) pain, swelling and discharging wound over right leg;

b) not able to stand and walk for long time

c) limping on right side

Surgical scan over Proximal part of right leg

Discharging wound in 3 No. of right leg

Limping on right side while walking

Inability to squat on floor

Inability to stand on floor

swelling over right knee, leg and ankle

visible deformities over right protimari part of right leg

Calf muscle wasting of 1.5 cms.

shortening of right lower limb of 1 inch."

Further, PW2, Doctor has stated regarding the restriction of movement of right lower limb and assessed permanent disability at 45% towards right lower limb and 15% towards whole body. The appellant being aged about only 35 years, has undergone these deformities and has to endure the permanent physical disability for the rest of his life. Therefore, having regard to the age, avocation, nature of injuries, disability, nature and duration of treatment undergone and the facts and circumstances of the case on hand, we award a sum of Rs. 2,00,000/- towards loss of amenities, discomfort and unhappiness on account of disability of 15%, as against Rs. 75,000/- awarded by Tribunal. Thus, there would be enhancement of compensation by Rs. 1,25,000/-.

Further, it is seen that, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 17-05-2011. 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, 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 2nd April 2013, passed in MVC No. 1491/2011, by the Presiding Officer, Fast Track -I and Additional Motor Accident Claims Tribunal, Tumkur, is hereby modified, awarding additional compensation of a sum of Rs. 1,25,000/- with interest at 9% per annum, from the date of petition till the date of realization.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 1,25,000/-, 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, 50% shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by five years, with liberty reserved to him to withdraw the periodical interest.

Remaining 50% shall be released in favour of the appellant, immediately on deposit by the Insurer.

Office to draw award, accordingly.