Harish vs A. Madeshwaran and Others

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 09/08/2012 passed in MVC No. 210/2011 by the II Addl. Semor Civil Judge and Addl. MACT-VI, Chitradurga, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 5,84,700/-, awarded in his favour as against his claim for Rs. 30,00,000/-, is inadequate.

The appellant claims to be aged about 20 years and working as driver at ENERCON Company, earning a sum of Rs. 6,000/- per month. He was hale and healthy prior to the date of accident. That at about 4:30 P.M., on 21-02-2011, when the appellant was going in a Motor cycle bearing Registration No.KA-16/TRL-1476, on NH-13 road, near Krushi Value Pvt. Ltd., Chikkagondanahally village, towards Chitradurga in a moderate speed, the driver of a Lorry bearing Registration No.TN-52/A-2499 drove the same at a high speed, in a rash and negligent manner and dashed against the motor cycle of the appellant. Due to the impact, the appellant sustained grievous injuries. Immediately, he was shifted to District Hospital, Chitradurga, where he took treatment and thereafter, he was shifted to Kasturbha Hospital, Manipal for better treatment, where he took treatment as in-patient from 23-02-2011 to 18-03-2011. During treatment period, he underwent an operation and his right leg was amputated below knee and on 05-03-2011, another operation was made and amputation of right leg conducted above knee.

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. 30.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 9th August, 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. 5,84,700/- 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.

It is the case of the appellant that on account of the road traffic accident, he sustained crushed non-visible wound over middle of right leg, tibial bone fragment seen outside and all the mussels exposed and there was bleeding and after X-ray, it was found that there is a comminuted fracture of lower end of both bones of right leg and amputation of right leg above knee. For the treatment of the said injuries, he was in-patient for nearly 25 days and therefore, he has to be awarded reasonable compensation.

The submission of learned counsel appearing for appellant, Shri. Shantappa B. Halli, at the outset is that, the Tribunal has grossly erred in not assessing the reasonable income of the appellant. The income assessed by Tribunal is on the lower side and the same is required to be re-assessed, having regard to the age and avocation of the appellant and the year of accident. He further submitted that on account of the road traffic accident, the appellant has sustained the aforesaid injuries and took treatment for about 26 days as in-patient in the Hospital and the Doctor, has assessed the functional disability and also whole body disability, but the Tribunal has assessed only 60% as whole body disability in spite of the fact that the appellant has sustained 100% disability so far as his profession is concerned. Further, he took follow-up treatment and during the treatment period, he has spent reasonable sum towards conveyance, nourishing food and attendant charges and the discomfort and unhappiness persists through out his life. Further he submitted that the Tribunal also erred in not awarding any compensation towards loss of marriage prospects and compensation awarded towards future medical expenses including incidental expenses in inadequate. Therefore, he vehemently submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by awarding just and reasonable compensation under all the heads.

As against this, learned counsel appearing for Insurer vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation under all the heads and interference in the same is not called for. However, after going through the evidence of the Doctor and the nature of injuries sustained coupled with the disability assessed and the avocation of the appellant, he fairly submitted that reasonable enhancement may be made, 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 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 20 years and a Driver in a Private Company. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 83,100/- 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 and conveyance, nourishing food and attendant charges, is concerned, the same is on the lower side and needs to be redetermined. Further, the Tribunal has failed to award any compensation towards loss of marriage prospects and loss of income during treatment period. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries, viz. crushed non-visible wound over middle of right leg, tibial bone fragment seen outside, all the mussels exposed and there was bleeding, comminuted fracture of lower end of both bones of right leg and amputation of right leg above knee. The Doctor, after looking at the nature of injuries has assessed the disability at 72%. But, the Tribunal, considering the age, avocation and nature of injuries sustained and also relying upon the various decisions, has re-assessed the whole body disability at 60%. The same, in our view, is just and proper and we accept the same, to meet the ends of justice. The appellant being aged about 20 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from work for a period of not less than three months. Further, it is seen that the monthly income assessed by Tribunal at Rs. 3,000/- is on the lower side. Therefore, having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at Rs. 6,000/-, 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 amputation of his right leg above knee. 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 20 years at the time of accident, the proper multiplier applicable is T8'' 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 . 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. 30,000/-; Rs. 10,000/- towards conveyance, nourishing food and attendant charges as against Rs. 5,000/-; Rs. 18,000/- towards loss of income during treatment period, at the rate of Rs. 6,000/- per month for a period of three months as the Tribunal has not awarded any compensation under this head; Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 30,000/-; Rs. 7,77,600/- (i.e. Rs. 6,000/- x 12 x ''18'' x 60/100) towards loss of future income as against Rs. 3,88,800/-; and Rs. 1,00,000/- towards future medical expenses including incidental expenses as against Rs. 36,000/- awarded by Tribunal and Rs. 50,000/-towards loss of marriage prospects as the Tribunal has not awarded any compensation under this head.

Further, learned counsel appearing for claimant/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 21-02-2011. 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 in the instant case, to meet the ends of justice and the impugned judgment and award be modified accordingly.

Further, 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 21-02-2011. 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 09/08/2012 passed in MVC No. 210/2011 by the II Addl. Semor Civil Judge and Addl. MACT-VI, Chitradurga, is hereby modified, awarding a sum of Rs. 12,88,700/- as against Rs. 5,84,700/- 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. 12,88,700/- as against Rs. 5,84,700/-. The enhanced compensation would be Rs. 7,04,000/- with 9% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 7,04,000/-, 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. 6,00,000/- 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 ten years, renewable by another ten years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 1,04,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.