K. Krishna vs C. Premkumar and Others

N.K. Patil, J.—This appeal by the injured claimant is directed against the impugned judgment and award dated 23rd June 2012, passed in MVC No. 9471/2009, by the XI Additional Judge & Motor Accident Claims Tribunal, Court of Small Causes, Bangalore, (SCCH-12), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 7,62,359/-, awarded in his favour as against his claim for Rs. 25,00,000/-, is inadequate.

The appellant claims to be aged about 35 years and a Mason by profession, earning a sum of Rs. 7,000/- per month and hale and healthy prior to the date of accident. That at about 2:00 P.M., on 01-09-2009, when the appellant was riding his motor cycle bearing Registration No. TN-24/V-5846 at Kaleshwaram village on Bagalu-Hosur Road, Hosur Taluk, Krishnagiri District, at that time, a Lorry bearing Registration No. KA-05/AE-5799 came at a high speed, in a rash and negligent manner and dashed against him. Due to the impact, the appellant sustained grievous injuries. Immediately, he was shifted to the Government Hospital, Hosur and after first aid, he was referred to Sparsha Hospital, Bangalore, where he was admitted 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 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. 25.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 23rd June, 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. 7,62,359/- 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 Grade IV shock, with poly trauma includes fracture of right femur, closed comminuted fracture of right tibia with fracture of medial malleolus and common peroneal nerve injury, type III(b) severely comminuted fracture left tibia with open knee injury with bone loss over lateral condyle of the tibia and medial malleolus fracture, bilateral superior and inferior public rami fracture, comminuted fracture of right patella, fracture base of distal phalanx of little finger and fracture of base of middle phalanx of the ring and middle finger of the right hand, soft tissue defects over both knees and medial aspect of the left foot, open reduction and internal fixation for the left and right medial malleolus with cancellous screw, external fixator application for the left leg. TBW for the right patella, muscle flap was done the skin closure over all the raw area around the both lower limbs and wound debridement, interlocking for the right tibia etc. and was in-patient for quite a long period and therefore, he has to be awarded reasonable compensation.

The submission of the learned counsel appearing for appellant, Shri Jagadish G. Kumbar, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the appellant, for the reason that the appellant was aged about 38 years and working as a Mason, earning a sum of Rs. 7,000/- per month. Therefore, he submitted that the Tribunal ought to have assessed the income of the appellant atleast between Rs. 5,000/- and Rs. 6,000/- per month and awarded reasonable compensation on account of the grievous injuries and disability sustained by the appellant in the road traffic accident. He further submitted that, on account of the road traffic accident, he sustained grievous injuries as stated above and for treatment of the same, the appellant was in-patient for quite some period and the Doctor, after seeing the nature of injuries sustained by the appellant, assessed the permanent functional disability towards right lower limb at 66% and towards left lower limb at 55% and 36.3% towards whole body. The appellant has to pull on the life with the said disability for the rest of his life and he cannot do the work as he was doing earlier to the accident. Contrary to the oral and documentary evidence on record, the Tribunal has reassessed the whole body disability at 20%, which cannot be sustained and is liable to be re-assessed in the interest of justice and equity. Further, on the advise of the Doctor, the appellant has taken follow-up treatment for at least six months and on account of the permanent disability, the appellant has lost the future happiness, comforts and amenities in life. Further, it is stated that the appellant has to undergo one more operation for removal of implants. All these aspects of the matter have not been properly taken into consideration by Tribunal, while computing compensation payable to the appellant. Hence, the impugned judgment and award passed by Tribunal is liable to be modified, by enhancing reasonable compensation.

As against this, learned counsel appearing for second respondent/Insurer, inter alia, sought to substantiate 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 hence, interference in the same is uncalled for. However, after due consideration of the oral and documentary evidence available on file, nature of injuries sustained, nature and duration of treatment undergone, etc., he fairly submitted that reasonable enhancement may be made, in accordance with law.

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 going through 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 38 years and a Mason by profession. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 4,52,359/- 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, discomfort and unhappiness on account of disability, loss of future earnings, loss of income during treatment period, future medical expenses and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries such as Grade IV shock, with poly trauma includes fracture of right femur, closed comminuted fracture of right tibia with fracture of medial malleolus and common peroneal nerve injury, type III(b) severely comminuted fracture left tibia with open knee injury with bone loss over lateral condyle of the tibia and medial malleolus fracture, bilateral superior and inferior public rami fracture, comminuted fracture of right patella, fracture base of distal phalanx of little finger and fracture of base of middle phalanx of the ring and middle finger of the right hand, soft tissue defects over both knees and medial aspect of the left foot, open reduction and internal fixation for the left and right medial malleolus with cancellous screw, external fixator application for the left leg. TBW for the right patella, muscle flap was done the skin closure over all the raw area around the both lower limbs and wound debridement, interlocking for the right tibia etc. The Doctor has opined that the appellant has sustained 66% permanent functional disability towards right lower limb, 55% towards left lower limb and 36.3% towards whole body. But, the Tribunal, without any basis, has re-assessed the whole body permanent disability at 20%. The same, in our opinion is on the lower side. Having regard to the age, avocation, nature of injuries, we re-assess the whole body disability at 40%, to meet the ends of justice. The appellant being aged about 38 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 six months. Further, it can be seen that the monthly income of Rs. 4,000/- assessed by Tribunal 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. 5,500/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite some time. 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 38 years at the time of accident, the proper multiplier applicable is ''15'' 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. 1,20,000/-; Rs. 20,000/- towards conveyance, nourishing food and attendant charges as against Rs. 5,000/-; Rs. 33,000/- towards loss of income during treatment period, at the rate of Rs. 5,500/- per month for a period of six months as against Rs. 16,000/-; Rs. 75,000/- towards loss of amenities, discomfort and unhappiness as against Rs. 10,000/-; Rs. 25,000/- towards future medical expenses as against Rs. 15,000/- and Rs. 3,96,000/- (i.e. Rs. 5,500/- x 12 x ''15'' x 40/100) towards loss of future income as against Rs. 1,44,000/- awarded by Tribunal.

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 23rd June 2012, passed in MVC No. 9471/2009, by the XI Additional Judge & Motor Accident Claims Tribunal, Court of Small Causes, Bangalore, (SCCH-12), is hereby modified, awarding a sum of Rs. 11,51,359/- as against Rs. 7,62,359/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. The break-up is as follows:

The total compensation would workout to Rs. 11,51,359/- as against Rs. 7,62,359/-. The enhanced compensation would be Rs. 3,89,000/- with 6% interest per annum.

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 3,89,000/-, 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, a sum of Rs. 3,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by five years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 89,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.