Jagadeesha vs Sathishgowda M.P. and Others

N.K. Patil, J—This appeal by the claimant is arising out of the impugned judgment and award dated 6th April 2013 passed in MVC No. 764/2012 on the file of the Principal, Civil Judge (Sr. Dn.) and MACT, Srirangapatna, (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 4,18,200/- with interest at 7% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road traffic accident.

It is the case of the appellant that, he was aged about 42 years as on the date of accident, hale and healthy and working as driver as well as agriculturist and earning more than Rs. 12,000/- per month. On 10.5.2012 at about 8.30 p.m. when the appellant was going on his motor cycle bearing No. KA-05-U-893 towards KEB extension at Saligrama on the left side of the road, at that time, near KEB Circle on Bairya-Saligrama road, an Ape Auto bearing No. KA-55-2556 driven by its driver in a rash and negligent manner came from Bairya side and dashed against the motor cycle and due to impact, the appellant fell down and sustained injuries i.e. fracture of right femur, right humerous, right radius and right metacarpal bones and for said fractures he was admitted and stabilized. He was admitted in the hospital as in-patient for 17 days and has under gone one surgery and surgical fixation was done for humerous femur and radius bones using plate and screws and metacarpals were fixed using K.wires. He has taken bed rest for 3 months. The appellant has spent more than Rs. 2,00,000/- for medical treatment. Inspite of best medical treatment, the appellant is suffering from the physical disability. Due to the accidental injuries and physical disability, it is not possible for him to carry on his profession as before. The appellant is taking follow up treatment and the doctor has assessed disability at 20% to the right upper limb and 46% to the right lower limb. But, The Tribunal assessed the disability at 35%. Further case of the appellant is that, he has suffered mental pain and agony and doctor has advised bed rest for more than 3 months and he has to suffer the disability through out his life. Therefore, he filed a claim petition under Section 166 of MV Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. To substantiate his case, he examined himself as PW 1 and Dr. Manjunath B.M. as PW 2 and got marked documents as Exs. P1 to P88. Respondents did not get mark any documents. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum of Rs. 4,18,200/- as compensation under different heads with interest at 7% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, so far as it relates to pain and sufferings, medical and traveling expenses, attendance charges, special diet etc. loss of future earning capacity and also disability on account of the injuries sustained in the road traffic accident, appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent.

Sri T. Nataraju, learned counsel appearing for the appellant submits that, the Tribunal erred in not awarding reasonable compensation towards pain and sufferings, loss of amenities and future medical expenses and other heads. The Tribunal has also erred in not assessing the reasonable functional and whole body disability on account of grievous injuries sustained in road traffic accident. The claimant was aged about 42 years and the accident occurred on 10.5.2012 but the Tribunal erred in assessing the income of the claimant, who was working as driver and agriculturist, at Rs. 12,000/- p.m. He has under gone one surgery and doctor advised bed rest and to under go one more operation. But the Tribunal has not considered it and also submitted that the rate of interest awarded at 7% per annum is also on the lower side since the accident is of the year 2012 and the same may be enhanced to 9% to 10% per annum. Therefore, impugned judgment and award passed by the Tribunal is liable to be modified awarding just and reasonable compensation.

Per contra, Sri. H.N. Keshava Prashanth, the learned counsel appearing for the 2nd respondent-Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is passed after considering the oral and documentary evidence and hence interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

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

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that the appellant was aged about 42 years as on the date of accident and hale and healthy and working as driver and agriculturist, getting salary of Rs. 12,000/- p.m. But the Tribunal took only Rs. 4,000/- as his income, which is on the lower side. The appellant has sustained fracture of right femur, right humerous, right radius and right metacarpal bones and has undergone treatment for 17 days as in-patient in the hospital on account of the grievous injuries sustained in the accident, which resulted in causing permanent disablement. It underwent follow up treatment for a period of 3 months because of accident not only the appellant even her family members have suffered a lot as he has lost his future career. PW 2-Doctor has assessed disability at 20% to the right upper limb and 46% to the right lower limb. The Tribunal assessed the disability at 35%.

Having regard to his age and nature of the injuries sustained, we can safely re-assess the whole body disability at 30% as against 35% assessed by the Tribunal to meet the ends of justice. Having regard to the injuries, we are of the view that the appellant has made out a case for enhancement of reasonable compensation under different heads. Further, as rightly pointed out by the learned counsel appearing for the appellant, the income of the appellant assessed by the Tribunal is on lower side and having regard to the age, avocation and year of accident, we can safely re-assess the income at Rs. 7,000/- per month, to meet the ends of justice.

He is not in a position to do the work as he was doing before accident. He has to endure the said difficulty throughout his life. Taking into consideration all these aspects, we deem fit to award Rs. 50,000/- towards pain and sufferings as against Rs. 35,000/-, Rs. 21,000/- (Rs. 7,000/- x 3 months) towards loss of income during treatment period as against Rs. 3,000/-, Rs. 25,000/- towards loss of amenities as against Rs. 5,000, Rs. 3,52,800/- (Rs. 7,000/- x 12 x 14 x 30/100) towards permanent disability and loss of future earning capacity. Rs. 15,000/- towards future medical expenses. However, the Tribunal has rightly awarded a sum of Rs. 1,30,000/- towards Medical Expenses, Rs. 10,000/- towards other incidental charges, food, diet, nourishment and transportation charges. Therefore, interference by this Court is not called for.

Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award dated 6.4.2013 passed by the Tribunal in MVC No. 764/2012 is hereby modified. The total compensation payable comes to Rs. 6,03,800/- with 9% interest per annum on the enhanced sum as against Rs. 4,18,200/- awarded by the Tribunal and the break-up is as follows:

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,85,600/- with interest at 9% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation, Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled/Grameena Bank, in the name of the appellant for a period of ten years and renewable for another ten years, with liberty to him to withdraw the periodical interest accrued on it.

The remaining Rs. 85,600/- with proportionate interest shall be released in favour of the appellant immediately, on deposit by the Insurer.

Draw the award, accordingly.