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Judgment
N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 12th March 2012, passed in MVC No. 4071/2010, by the IX Additional Senior Civil Judge & Member, Motor Accident Claims Tribunal-7, Court of Small Causes, Bangalore, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 5,85,000/-, awarded in his favour as against his claim for Rs. 30,50,000/-, is inadequate.
The appellant claims to be aged about 68 years and working as Driver of heavy vehicle, Lorry, earning a sum of Rs. 10,000/- per month. He was hale and healthy prior to the date of accident. That at about 2:00 A.M.(midnight), on 07-05-2010, when the appellant was driving Lorry bearing Registration No. KA-04/C-6484 from Bangalore to Pune to unload parcel on NH-4, near Hiriyur, his Lorry tyre was punctured and therefore, when he was repairing tyre along with cleaner, by putting all parking signal, at that time, another Lorry bearing Registration No. TN-29/AA-9459 driven by its driver, at high speed, in a rash and negligent manner, from Bangalore to Hinyur, dashed against the appellant, who was repairing the Lorry. Due to the terrific impact, he sustained grievous injuries and immediately he was shifted to Hospital for 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. 30.50 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 12th March, 2012. 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. 5,85,000/- with interest at 6% per annum on Rs. 5,70,000/- 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 first respondent/Insurance Company for considerable length of time.
It is the case of the appellant that on account of the road traffic accident, he sustained compound fracture right ankle and fracture of tibia, severe degloving injury lower 1/3rd of leg and proximal foot injury which are stated to be grievous in nature and was in-patient from 07-05-2010 to 02-06-2010 and therefore, he has to be awarded reasonable compensation.
The principal submission canvassed by learned counsel appearing for appellant is that, the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, conveyance, nourishing food and attendant charges, loss of income during treatment period, loss of amenities, discomfort and unhappiness on account of disability, loss of future earnings and future medical expenses. To substantiate the same, she pointed out that the appellant was aged about 68 years and by profession, he is a Driver of heavy vehicle and he has sustained grievous injuries and his right leg below knee is amputated and the said amputation definitely comes in the way of the appellant discharging his duty as a Driver and therefore the Tribunal ought to have assessed the permanent whole body disability at 100% so far as his driving is concerned. Further, she submitted that the appellant has taken treatment as in-patient for a period of one month in the Hospital and spent huge amount towards conveyance, nourishing food and attendant charges and sustained permanent disability, which he has to bear through out his life. She also submitted that the monthly income of Rs. 5,000/- assessed by Tribunal is also on the lower side and the same is liable to be re-assessed for the reason that the appellant was working as a driver of heavy vehicle and had rich experience in driving and was earning not less than Rs. 10,000/- per month. Therefore, she submitted that the impugned judgment and award passed by Tribunal is liable to be modified, awarding just and reasonable compensation on account of the grievous injuries sustained by the appellant in the road traffic accident.
As against this, learned counsel appearing for first respondent/Insurer vehemently submitted that the Tribunal is justified in awarding compensation towards all the heads considering the nature of injuries sustained, nature and duration of treatment undergone and also the age and avocation of the appellant. However, after going through the entire evidence available on file, and age, avocation and year of accident, nature of injuries sustained and the disability assessed by Doctor and also the fact that because of the amputation of his right leg below knee, the appellant cannot continue his profession as driver, he fairly submitted that reasonable enhancement may be made in accordance with law, by modifying the impugned judgment and award passed by Tribunal.
After hearing learned counsel for the appellant, learned counsel appearing for 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 for the injuries sustained by appellant is just and reasonable?"
After perusal of the entire material available on file, it emerges 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 68 years and working as a driver of heavy vehicle. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 2,75,000/- 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, conveyance, nourishing food and attendant charges, loss of income during treatment period and future medical expenses is concerned, the same is on the lower side and needs to be redetermined. Admittedly, in view of the road traffic accident, as per Wound Certificate and Discharge Summary at Exs. P9 and P10, the appellant has sustained compound fracture right ankle and fracture of tibia, severe degloving injury lower 1/3rd of leg and proximal foot injury which are grievous in nature. PW2, Plastic Surgeon, looking at the nature of injuries sustained, has assessed 70% disability in respect of right lower limb and 30% towards whole body. PW3, Orthopaedic Surgeon, on examining the appellant, has noticed right below knee stump, healed surgical scar below patella, healed scar at the tip of the stump, tenderness flexion possible upto 120 dg Left knee swelling present, range of movements terminally restricted, healed scar present on medial aspect of the proximal left leg and assessed the permanent functional disability in respect of right lower limb at 80%, left lower limb at 10% and whole body at 35%. But, the Tribunal, relying upon the oral evidence of the appellant and also his avocation, has assessed the whole body permanent disability at 50%. The same, in our opinion is on the lower side. Having regard to the age, avocation, nature of injuries, viz. amputation of right leg below knee and considering the experience of degree of impact on the avocation of the appellant, we re-assess the whole body disability at 60%, to meet the ends of justice. The appellant being aged about 68 years, has to endure this disability for the rest of his life and recovery at this age is slower and difficult. Because of the injuries sustained and his age, he must have been away from work for a period of not less than six months. Further, it can be seen that the monthly income assessed by Tribunal at Rs. 5,000/- is also on the lower side considering his experience, year of accident and age. Therefore, having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at Rs. 7,500/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for nearly a month as in-patient in the Hospital and also took follow-up treatment, on the advise of the Doctors. During this period, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 68 years at the time of accident, the proper multiplier applicable is ''5'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . 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. 1,50,000/- towards injury, pain and suffering as against Rs. 75,000/-; Rs. 30,000/- towards conveyance, nourishing food and attendant charges as against Rs. 15,000/-; Rs. 45,000/- towards loss of income during treatment period, at the rate of Rs. 7,500/- per month for a period of six months; Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 20,000/- towards loss of amenities and Rs. 10,000/- towards permanent disability, Rs. 50,000/- towards future medical expenses as against Rs. 15,000/- and Rs. 2,70,000/- (i.e. Rs. 7,500/- x 12 x ''5'' x 60/100) towards loss of future income as against Rs. 1,50,000/- awarded by Tribunal.
At this stage, learned counsel appearing for appellant vehemently submitted that the rate of interest awarded by Tribunal at 6% p.a. is also on the lower side as the accident has occurred on 07-05-2010. 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 in the instant case, to meet the ends of justice and the impugned judgment and award be modified accordingly.
As rightly pointed out by learned counsel appearing for appellant, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 07-05-2010. 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 8% 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 12th March 2012, passed in MVC No. 4071/2010, by the IX Additional Senior Civil Judge & Member, Motor Accident Claims Tnbunal-7, Court of Small Causes, Bangalore, is hereby modified, awarding a sum of Rs. 9,20,000/- as against Rs. 5,85,000/- awarded by Tribunal, with interest at 8% 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. 9,20,000/- as against Rs. 5,85,000/-. The enhanced compensation would be Rs. 3,35,000/- with 8% interest per annum.
The first respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 3,35,000/-, with interest thereon at 8% 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. 2,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of five years, renewable by another five years, with liberty reserved to him to withdraw the periodical interest.
Remaining sum of Rs. 1,35,000/- with proportionate interest shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.