K.B. Appaji vs K.M. Rajendra and Others

N.K. Patil, J.—This is a claimant''s appeal for enhancement of compensation against the impugned judgment and award dated 26/08/2013, passed in MVC No. 6274/2010, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-09), (hereinafter referred to as ''Tribunal'' for short), on the ground that a sum of Rs. 16,97,000/- awarded with interest at 6% p.a., from the date of petition till the date of deposit, as against the claim of Rs. 50,00,000/-, 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 36 years at the time of the accident. He was hale and healthy prior to the accident, working as a Cleaner in the lorry bearing Reg. No. KA.05.AA.2000. That at about 2.45 a.m., on 19.6.2010, when he was traveling in a Lorry bearing Reg. No. KA.05.AA.2000 in the capacity as cleaner of the said lorry and while going towards Bangalore side and when they came near Marigowdana Doddi cross, Maralavadi Hobli, Kanakapura Taluk, at that time, the driver of the said lorry drove the same in a rash and negligent manner, due to which, the said lorry fell to a right side big pit and in the said accident, appellant fell down from the lorry and the back wheel of the said lorry ran over on his both legs and thereby, he sustained injuries. Immediately, he was shifted to Hosmat Hospital, Bangalore, where he took treatment as inpatient, underwent operation, his both lower limbs were amputated above knee and thereafter, on the advice 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 disability to the whole body at 80%. Therefore, appellant has filed a claim petition before the Tribunal 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. 16,97,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realization.

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

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

The submission of the learned counsel Smt. Netravathi K, appearing for Sri. P.V. Vasudevan, appearing for appellant, at the outset is that, the Tribunal has committed a grave error and material irregularity in not awarding reasonable compensation towards injury, pain and sufferings, towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness, towards loss of future earnings and in not awarding any compensation towards future medical expenses for purchase of artificial limb. To substantiate the said submission, she submitted that, appellant was aged about 36 years, working as cleaner in the lorry and on account of the injuries sustained by him in the accident, he has taken treatment as inpatient for 25 days in the hospital, his both legs were amputated above knee. To prove the same, he has examined the Doctor who has treated him as PW2, and he has assessed the total permanent physical disability at 80% to the whole body and the same may be treated as 100% disability in the light of the judgment of the Apex Court and this Court, as he is not in a position to do any work in future. Further, she submits that, appellant has spent reasonable amount towards conveyance, nourishing food and attendant charges, on the advice of the Doctor, he has taken bed rest and follow up treatment for more than six months, discomforts and unhappiness persists through out his life and he requires some reasonable amount towards purchase of artificial limb, including incidental charges. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Further, she submits that, the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side and is liable to be enhanced atleast at 8 to 9% in the light of the judgment of the Apex Court and this Court. Therefore, she submitted that the impugned judgment and award is liable to be modified by enhancing the compensation reasonably.

Per contra, learned counsel for insurer, inter-alia, contended and submitted that the impugned judgment and award passed by the Tribunal is just and proper and after due appreciation of the oral and documentary evidence available on file and taking into consideration the nature of injuries sustained by the appellant, nature and duration of treatment taken and parentage of disability suffered by him, has justified in awarding reasonable compensation under all the heads and it does not call for interference. Further, he has fairly submitted that, the Tribunal has not awarded any compensation towards future medical expenses and the same may be considered in accordance with law.

After hearing the learned counsel appearing for appellant, learned counsel appearing for Insurer 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 quantum of 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. P4-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 36 years, working as Cleaner in a lorry. The Tribunal has justified in assessing the income of the appellant at Rs. 6,000/- per month and we accept the same. Admittedly, on account of the grievous injuries sustained by the appellant in the accident, he has taken treatment as inpatient for 25 days, his both legs were amputated above knee, during the said period, he might have spent reasonable amount towards medical expenses, conveyance, nourishing food and attendant charges. To prove the same, he has examined the treated doctor as PW2, who has assessed the disability at 80% to the whole body. We re-assess the permanent disability at 100% to the whole body instead of 80% as assessed by the Tribunal and the Doctor having regard to the nature of injuries sustained by him and since both legs were amputated above knee. During the period of treatment, appellant might have undergone lot of pain and agony, he might have sustained financial loss, as he could not have attended his work regularly. The disability is permanent in nature, he has to suffer this disability through out his life and it would affect his working capacity and he has lost his amenities and enjoyment in future life. As there was amputation of both legs above knee, he has to depend upon artificial limb and he has to replace the artificial limb once in three years and for that he may require some amount towards purchase of artificial limb and incidental expenses. The proper multiplier applicable would be ''15'' as rightly adopted by the Tribunal since appellant was aged about 36 years as on the date of the accident and we accept the same. Taking all these aspects into consideration and after re-appreciation of the oral and documentary evidence available on file, we award a sum of Rs. 2,00,000/- towards injury, pain and suffering as against Rs. 40,000/-, Rs. 10,000/- towards conveyance, nourishing food and attendant charges as against Rs. 4,600/-, Rs. 36,000/- towards loss of income during the period of treatment for six months at the rate of Rs. 6,000/- per month as against Rs. 16,950/-; Rs. 1,50,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 56,000/-, Rs. 10,80,000/- ( Rs. 6,000 x 12 x 15 x 100%) towards loss of future earnings as against Rs. 12,96,000/- and Rs. 1,00,000/- towards future medical expenses including purchase of artificial limb.

The Tribunal has justified in awarding a sum of Rs. 2,08,620/- towards medical expenses as per medical bills and Rs. 75,000/- towards loss of marital life and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 18,59,620/- instead of Rs. 16,97,170/- and the break- up is as follows:

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellant, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2010. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 8% per annum on the entire compensation instead of 6% awarded by the Tribunal.

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 26/08/2013, passed in MVC No. 6274/2010, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-09), stands modified, awarding the compensation of Rs. 18,59,620/- instead of Rs. 16,97,170/- as awarded by the Tribunal. There would be an enhancement of Rs. 1,62,450/- with interest at 8% p.a., from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,62,450/- with interest at 8% p.a., on the entire compensation from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,62,450/-, 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. 62,450/- with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.