Hanumantharaju vs The United India Insurance Company Limited and Others

N.K. Patil, J—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 09/11/2010, passed in MVC No. 5639/2007, by the I Additional Small Cause Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-11), (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 6,17,500/- awarded by the Tribunal with interest at 6% p.a., from the date of petition till realization (excluding interest on future medical expenses of Rs. 10,000/-), as against the claim of Rs. 35,54,403/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

The appellant claims to be aged about 19 years at the time of the accident. He was hale and healthy prior to the accident, working for Srinivasa Iron Foundry and earning Rs. 2,500/- per month. That on 13.3.2007 at about 7.30 p.m. near Binna Mangala Nursery farm, Nelamangala road, the driver of the auto bearing Reg. No. KA.02.5148 drove the same with high speed in a rash and negligent manner and dashed against the motor cycle bearing Reg. No. MP.04.NC.1308 in which the appellant was a pillion rider and caused the accident. Due to which, appellant sustained grievous injuries. Immediately, he was shifted to Mallige Medical Centre, where he took treatment as inpatient on different dates, underwent surgeries, implants were inserted, skin and bone grafting was done and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment.

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has assessed the physical disability at 30 to 40% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 6,17,500/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realization excluding interest on Rs. 10,000/- awarded towards future medical expenses, dismissing the claim petition against respondent Nos. 1 to 3 and directing the respondent No. 4 to deposit the compensation amount.

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal.

The submission of the learned counsel Sri. S. Gangadhara Aithal, appearing for appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness, towards future medical expenses and towards loss of marriage prospects and what is awarded is inadequate and it requires to be enhanced reasonably. To substantiate the said submission, he submitted that, appellant was aged about 19 years working as helper in Sri. Srinivasa Iron Foundry and drawing the salary of Rs. 2,500/- per month and in the accident he sustained grievous injuries, on account of which, he has taken treatment for 52 days as inpatient, undergone surgeries, implants were inserted and removed, undergone skin and bone grafting. He examined the Doctor, who has assessed the permanent disability at 30 to 40% due to which, he has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for seven months, discomforts and unhappiness persists through out his life, it would affect his earning capacity and now he has discontinued his job, it would affect his marriage prospects and he requires some amount towards future medical expenses. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for R1-insurer, inter-alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. However, after going through the specific ground urged by the learned counsel appearing for the appellant, he has not disputed the law laid down by the Apex Court and this Court with regard to production of FC by the driver and submitted that the same may be considered in accordance with law.

Learned counsel appearing for respondent No. 3, inter-alia, contended and sought to substantiate the impugned judgment and award passed by the Tribunal is just and reasonable and it does not call for interference.

Notice against Respondent Nos. 2 and 4 is held sufficient.

After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for respondent Nos. 1 and 3 and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

Whether the compensation awarded by the Tribunal is just and reasonable?

The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex.P5-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 19 years, working as Helper and drawing the salary of Rs. 2,500/- per month as per Ex.P6-salary certificate. On account of the grievous injuries sustained by him, he has taken treatment as inpatient for 52 days on different dates, underwent six surgeries, implants were inserted and removed, skin and bone grafting was done, during the said period, he might have undergone lot of pain and agony, he might have spent considerable amount towards medical expenses, conveyance and other incidental expenses, and as per the advise of the Doctor he might have taken bed rest and follow-up treatment atleast for seven months, during the said period, he might have incurred financial loss as he could not have attended his work regularly. The Doctor has assessed the permanent disability at 30 to 40% to the whole body. The Tribunal, after assigning valid reasons has assessed the disability at 20% to the whole body and we accept the same. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity and marriage prospects. As per the evidence of the Doctor, the appellant has to undergo treatment in future and for that, he may require some reasonable amount. Therefore, the appellant has to be compensated reasonably. The proper multiplier applicable would be ''18'' as rightly adopted by the Tribunal since the appellant was aged about 19 years as on the date of the accident and we accept the same. Taking all these aspects into consideration, we award a sum of Rs. 1,00,000/- towards injury, pain and suffering as against Rs. 50,000/-, Rs. 50,000/- towards conveyance, nourishing food and attendant charges as against Rs. 42,000/-, Rs. 75,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 50,000/-, Rs. 30,000/- towards future medical expenses as against Rs. 10,000/- and Rs. 50,000/- towards loss of marriage prospects as against Rs. 10,000/-.

However, the Tribunal after due appreciation of the oral and documentary evidence available n file has justified in awarding a sum of Rs. 3,30,000/- towards medical expenses, Rs. 1,08,000/- towards loss of future earnings and Rs. 17,500/- towards loss of income during the period of treatment and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 7,60,500/- instead of Rs. 6,17,500/- and the break-up is as follows:

Regarding the principal ground urged by the learned counsel appearing for the appellant that, the Tribunal has erred in exonerating the Insurer from indemnifying the award amount and directing the fourth respondent to indemnify the same, on the sole ground that, offending vehicle had no FC and permit nor they are produced by the driver as on the date of the accident and the said reasoning given by the Tribunal for exonerating the Insurance company cannot be sustained and is liable to be set aside in the light of the judgments of this Court and Apex Court is concerned, we find some substance in the said submission, for the reason that, appellant is a third party to the proceedings and if there is any violation as on the date of accident, it is very much open for the Insurance Company to initiate appropriate proceedings against the owner, as held by this Court in M.F.A. No. 6621/2006 C.W. M.F.A. Crob No. 2304/2006 and also the judgment dated 2.12.2014 in MFA No. 6311/2014 (Regional Manager, Oriental Insurance Company Limited Vs. Smt. Dimple @ Rashmi Sethi and others) as held in para-8 of the judgment dated 11th June 2015 in M.F.A. No. 2955/2013 (Smt. Ramanjinamma and others Vs. M/s. United India Insurance Company Limited and another). Therefore, we are of the considered view that, the reasoning given by the Tribunal for exonerating the Insurance Company cannot be sustained and is liable to be set aside, holding that the Insurer is liable to indemnify the award amount first and thereafter, recover the same from the owner in accordance with law.

Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 09/11/2010, passed in MVC No. 5639/2007, by the I Additional Small Cause Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-11), stands modified, awarding the compensation of Rs. 7,60,500/- instead of Rs. 6,17,500/- as awarded by the Tribunal. There would be an enhancement of Rs. 1,43,000/- with interest at 6% p.a., from the date of petition till its realization.

The liability fastened on the fourth respondent-owner is hereby set aside.

The first respondent-Insurer is directed to deposit entire compensation amount, including the enhanced compensation of Rs. 1,43,000/- with interest at 6% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.

Liberty is reserved to the Insurer to recover the said amount from the fourth respondent, owner of the offending vehicle in accordance with law in the same proceedings.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,43,000/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 43,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.