Khareem Khan vs T.V. Taj Peer Sab and Others

N.K. Patil, J—This appeal by the claimant is directed against the impugned judgment and award dated 26th February 2011, passed in MVC No. 984/2010, by the II Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Bengaluru (SCCH-13), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 4,59,200/- awarded in his favour as against his claim for Rs. 25,00,000/-, is inadequate.

The appellant claims to be aged about 43 years at the time of accident and a Fruit vendor by profession, earning a sum of Rs. 350/- per day or Rs. 10,500/- per month. He was hale and healthy prior to the date of accident. That at about 4:00 P.M., on 16-02-2009, when the appellant was proceeding on his motor cycle bearing Registration No. KA-51/Q-8931 on Nagavara Main Road, near Alhabeeb Hospital, at that time, the driver of Toyota Qualis bearing Registration No. DL-101/VA-0277 came at high speed, in a rash and negligent manner and dashed against the motor cycle of the appellant. As a result of the same, the appellant sustained grievous injuries and was immediately shifted to Lake side Hospital, where he was treated as inpatient from 17-02-2009 till 21-02-2009 and thereafter he took treatment at Hosmat Hospital from 21-02-2009 to 03-03-2009.

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 reasonably.

On account of the grievous 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 26th February, 2011. 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. 4,59,200/- 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 learned counsel appearing for appellant is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of amenities, discomfort and unhappiness on account of permanent physical disability, loss of future income and loss of income during treatment period.

He further submitted that, the appellant was aged about 43 years, working as Fruit vendor, earning a sum of Rs. 10,500/- per month. On account of the grievous injuries sustained, he was hospitalized for a period of 14 days and also underwent severe untold pain and agony during treatment and follow-up treatment period and the Doctor after clinical and radiological examination, assessed the disability at 25% towards whole body and the appellant being aged about 43 years, has to endure this disability for the rest of his life and he cannot do his work as before. Therefore, learned counsel appearing for appellant vehemently submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by enhancing reasonable compensation under all the heads.

As against this, learned counsel appearing for Insurer, inter alia contended and sought to substantiate the impugned judgment and award passed by Tribunal stating that the same is passed after due consideration of oral and documentary evidence adduced by the parties and also taking into consideration the age, avocation, year of accident, nature of injuries sustained, nature and duration of treatment undergone, etc. and interference in the same is uncalled for.

After hearing learned counsel for the appellant, learned counsel appearing for Insurer and after perusal of the judgment and award passed by Tribunal, 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 emerges that, occurrence of accident at about 4:00 P.M. on the ill-fated day, i.e. 16-02-2009 and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that, the appellant was aged about 43 years and working as a Fruit Vendor. On account of the road traffic accident, admittedly, the appellant sustained fracture of L1 vertebra with disability to pass urine and weakness of lower limbs. MRI showed fracture with retropulsed fragment causing cord compression and canal stenosis and underwent surgery of D12 to L2 stablization and decompression was done on 23-02-2009. In support of the said injuries, he has examined the Doctor who treatment him and the deposition given by him is corroborated by the version of the appellant. For the treatment of the said injuries, he took treatment for nearly 14 days as inpatient in different Hospitals on different occasions. PW2, Doctor, after clinical and radiological examination has assessed the permanent whole body disability at 25%. The appellant, being aged about only 43 years at the time of accident, has to pull on the life with this disability for the rest of his life. Therefore, we are of the considered opinion that the appellant has made out a case for further enhancement of compensation.

The Tribunal, after assessing the oral and documentary evidence available on file, considering the age, avocation, year of accident, nature and gravity of injuries sustained, permanent disability assessed by Doctor, nature and duration of treatment undergone, surgery undergone, etc., has rightly awarded compensation of a sum of Rs. 1,65,000/- towards medical expenses, as per the medical bills and prescriptions, Rs. 15,000/- towards conveyance, nourishing food and attendant charges and Rs. 60,000/- towards loss of amenities, discomfort and unhappiness on account of disability. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under injury, pain and sufferings, loss of future earnings and loss of income during treatment period is concerned, the same is on the lower side and liable to be enhanced. Admittedly, in view of the road traffic accident, the appellant has sustained the injuries as stated above. He has taken treatment for a period of 14 days as in-patient in different Hospitals on different occasions. The Doctor, considering the nature and gravity of the injuries sustained, surgery undergone, has assessed 25% disability towards whole body. The Tribunal, after critical evaluation of the oral and documentary evidence available on file and also considering the nature of injuries sustained, has reassessed the whole body disability at 20%. The same is just and proper and we accept the same, to meet the ends of justice. The appellant being aged about only 43 years, must have undergone lot of mental pain and agony and cannot continue his avocation and has to endure the 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 four months. Further, the monthly income assessed by Tribunal at Rs. 4,500/- is on the lower side and 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, during the period of treatment and follow-up treatment, he must have definitely undergone lot of unsaid pain and agony, both physically and mentally and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 43 years at the time of accident, the proper multiplier applicable is ''14'' 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 as rightly adopted by Tribunal. Therefore, having regard to the age, avocation, nature and gravity of the injuries, permanent whole body disability, and the facts and circumstances of the case on hand, we award a sum of Rs. 75,000/- towards injury, pain and suffering as against Rs. 50,000/-; Rs. 24,000/- towards loss of income during treatment period, at the rate of Rs. 6,000/- per month for a period of four months; and Rs. 2,01,600/- (i.e. Rs. 6,000/- x 12 x ''14'' x 20/100) towards loss of future income as against Rs. 1,51,200/- awarded by Tribunal. Thus, the total compensation works out to Rs. 5,40,600/- as against Rs. 4,59,200/- awarded by Tribunal. Thus, there would be enhancement of compensation by a sum of Rs. 81,400/- with 6% interest per annum, from the date of petition till the date of realization.

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 26th February 2011, passed in MVC No. 984/2010, by the II Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Bengaluru (SCCH-13), is hereby modified, awarding a sum of Rs. 5,40,600/- as against Rs. 4,59,200/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization, excluding interest for the delayed period of 375 days in filing the appeal. The break-up is as follows:

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 81,400/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment, excluding interest for the delayed period of 375 days in filing the appeal.

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

Office to draw award, accordingly.