Jyothiba vs Mahabala Shetty

N.K. Patil, J.—This appeal by the claimant is directed against the impugned common judgment and award dated 21st July 2008, passed in MVC No. 1191/2004, by the Civil Judge (Sr. Dn) and Motor Accident Claims Tribunal, Kundapura, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,22,700/-, awarded in his favour as against his claim for 5,68,000/-, is inadequate.

The appellant claims to be aged about 25 years, working as an Assistant to his father at his shop at Ummarga, Maharashtra State, earning a sum. of Rs. 10,000/- per month. He was hale and healthy prior to the date of accident. That at about 7:30 A.M., on 18-05-2004, when the appellant along with others was travelling in a Tempo Trax bearing Registration No. KA-20/7981, from Ajri towards Hebri side, on Halady-Someshwara Road, near Haikady, Hiliyana village, Kundapura Taluk, the driver of Santro Car bearing Registration No. MH-25/A-2182 drove the same from Someshwara side, in a rash and negligent manner, at a high speed, in a rash and negligent manner and dashed against Tempo Trax. Due to the impact, the inmates of the said Tempo Trax, including the appellant sustained grievous injuries and some of them succumbed to the said injures and the appellant sustained fracture of both bones (L) leg, contusion over shin of tibia and contusion over medial aspect (R) elbow and the Doctor has opined that the said injuries are grievous in nature. Immediately after the accident, the appellant was shifted to Shri Durga Clinic and Maternity Hospital, Halady and after first aid, he was shifted to K.M.C. Hospital, Manipal, where he took treatment as in-patient.

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 road traffic 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. 05.68 lakhs against the respondents. The said claim petition along with other claim petitions had come up for consideration before the Tribunal on 21st July, 2008. 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. 1,22,700/- 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.

The submission of the learned counsel appearing for appellant, Shri. K.R. Ramesh, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the appellant inasmuch as the appellant was working as an Assistant in the Stationery shop of his father and getting a sum of Rs. 10,000/- per month. Further, he submitted that on account of the grievous injuries sustained in the road traffic accident, he was treated as in-patient in the Hospital and has spent huge amount towards medical expenses and other incidental expenses such as conveyance, nourishing food and attendant charges. Further, he submitted that the Doctor has assessed the permanent disability of 12% towards left leg and the Tribunal has assessed the whole body disability at 6%. Therefore, considering the age and nature of injuries sustained by the appellant coupled with the percentage of functional and whole body disability, reasonable compensation be awarded towards loss of future income. Further, he vehemently submitted that the Tribunal has failed to award any compensation towards loss of amenities, discomfort and future unhappiness, when in fact, the appellant has sustained permanent functional disability at 12%. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by enhancing just and reasonable compensation.

Per contra, learned counsel appearing for second respondent/Insurer inter alia contended and sought to justify 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 that the compensation awarded is just and reasonable and interference in the same is unwarranted.

After hearing the learned counsel for the appellant, learned counsel appearing for second respondent/Insurer and after perusal of the impugned 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 off compensation awarded by Tribunal is just and reasonable?"

Facts in brief are that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is stated in the cause title that the appellant was aged about 25 years. But, as per the Wound Certificate, Ex. P3, he was stated to be aged about 27 years. The same is accepted. It is further stated that he was assisting his father in the Stationery Shop and earning Rs. 10,000/- per month. But, no documentary evidence is produced. In the absence of any credible documentary evidence, the Tribunal has assessed the income of the appellant at Rs. 3,000/- per month. The same is on the lower side. Considering the age, avocation of the appellant and also the year of accident, we re-assess the monthly income of the appellant at Rs. 4,500/-, to meet the ends of justice.

Further, so far as the compensation awarded under loss of future earnings, loss of income during treatment period and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness. Admittedly, in view of the road traffic accident, the appellant has sustained fracture of both bones (L) leg, contusion over shin of tibia, and contusion over medial aspect (r) elbow as per wound Certificate at Ex. P3. The Doctor has assessed 12% disability in respect of left leg and not assessed the whole body disability. But, the Tribunal, after assessing the oral and documentary evidence available on file and also considering the nature of injuries has assessed the whole body disability at 6%. The same, in our opinion, is just and proper and we accept the same, considering the grievous injuries sustained by the appellant and also the fact that he was aged only about 27 years at the time of accident and has to endure the said 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 stated that the appellant took treatment as in-patient for a period of seven days on account of the grievous injuries sustained in the road traffic accident. 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 27 years at the time of accident, the proper multiplier applicable is ''17'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Further, it can be seen that the Tribunal has not awarded any compensation towards loss of amenities, discomfort and unhappiness in life. He was aged about only 27 years at the time of accident and has to endure the disability for the rest of his life and has to suffer future inconveniences in life. Therefore, having regard to the age, avocation, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of Rs. 5,000/- towards conveyance, nourishing food and attendant charges as against Rs. 2,000/-; Rs. 13,500/- towards loss of income during treatment period, at the rate of Rs. 4,500/- per month for a period of three months as against Rs. 9,000/-; Rs. 10,000/- towards future medical expenses as against Rs. 8,000/-; Rs. 50,000/- towards loss of amenities, discomfort and unhappiness as the Tribunal has not awarded any compensation under this head; and Rs. 55,080/- (i.e. Rs. 4,500/- x 12 x''17'' x 6/100) towards loss of future income as against Rs. 36,720/- awarded by Tribunal.

However, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 33,416/- towards medical expenses, as per the medical bills and prescriptions and Rs. 29,000/- towards injury, pain and sufferings. Hence, interference in the same is uncalled for.

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 common judgment and award dated 21st July 2008, passed in MVC No. 1191/2004, by the Civil Judge (Sr. Dn) and Motor Accident Claims Tribunal, Kundapura, is hereby modified, awarding a sum of Rs. 1,95,996/- as against Rs. 1,22,700/- awarded by Tribunal, with interest at 6% 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. 1,95,996/- as against Rs. 1,22,700/-. The enhanced compensation would be Rs. 73,296/- with 6% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 73,296/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, the entire sum shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.