K.N.V.S. Murthy and Others vs Umesh and Others

B. Sreenivas Gowda, J.

As these two appeals are arising out of a common road traffic accident and a common Judgment of the Tribunal, they are heard together and disposed of finally by this common Judgment with the consent of the learned counsel appearing for the parties.

Appellants having sustained certain injuries in a road traffic accident filed two separate claim petitions before Small Causes, Bangalore City seeking compensation under Section 166 of MV Act from the owner and the insurer of the offending vehicle.

The Tribunal by the impugned Judgment and Award has awarded a sum of Rs. 1,98,645/- and Rs. 2,31,010/- respectively with interest at 6% p.a.

The appellants aggrieved by the sum awarded by the Tribunal have preferred these appeals seeking enhancement of compensation.

As there is no dispute regarding, certain injuries sustained by the claimants in the road traffic accident occurred on 28.08.2009 due to rash and negligent driving of the offending car bearing Regn. No. KA-13-A-4550 by its driver and the liability of the insurer of the offending vehicle, the only point that remains for my consideration in both the appeal is:

"Whether the quantum of compensation awarded by the Tribunal in both cases is just and proper or does it call for enhancement?"

After hearing the learned counsel for the parties and perusing the Judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and proper, it is on the lower side and therefore the same requires to be enhanced.

In MFA 10957/11(MVC No. 8400/09), the injured claimant is one Sri KNVS Murthy aged about 52 years. As per Ex.P15, he sustained the following injuries:

"Fracture of distal end of radius, fracture of left parasymphysis of mandible and fracture right angle of mandible and diffused axonal injury in right temporal region."

PW.3 the Doctor has opined that the above injuries are grievous in nature. The discharge summary discloses that he was admitted in a private Hospital from 28.8.2009 to 8.9.2009 and continued treatment as Outpatient for a period of one week.

Considering the nature of injuries sustained by the claimant, a sum of Rs. 45,000/- is awarded towards pain and suffering as against Rs. 20,000/- awarded by the Tribunal. As Rs. 1,75,590/- awarded by the Tribunal towards medical expenses is based on medical bills and prescriptions, produced by the claimant, the same is just and proper and there is no scope for enhancement under the said head. Considering the duration of treatment as in-patient for 13 days, Rs. 5,000/- awarded by the Tribunal towards incidental expenses such as nourishment, conveyance and attendant charges is just and proper and there is no scope for enhancement.

He claims to have been earning Rs. 15,000/- p.m. by doing gold business but the same is not established by adducing cogent evidence. In the absence of proof of income, considering his age as 50 years, the year of accident as 2009 and his avocation as daily wager, his income is assessed at Rs. 4,500/- p.m. Having regard to the nature of injuries he must have been under rest and treatment for a period of atleast four months, thus, an amount of Rs. 18,000/- is awarded towards loss of income during laid-up period.

Considering the injury sustained by the claimant, disability assessed by the doctor and an amount of discomfort and unhappiness he has to undergo in his future life, a sum of Rs. 20,000/- is awarded towards loss of amenities.

His income is assessed at Rs. 4,500/- p.m. the Doctor has stated he has suffered disability at 12% to the limbs. The Tribunal has taken it at 3% to the whole body taking 1/3rd of disability caused to the limb which is on the lower side. Therefore, it is taken at 6% for the purpose of determination of loss of future income. For the age of the appellant, 13 multiplier is applicable. Thus the loss of future income would be Rs. 42,120/- (Rs. 4,500/- x 6/100 x 12 x 13) and it is awarded.

Thus the claimant is entitled for the following compensation:

In MFA 10956/2011 (MVC No. 8399/09) the injured claimant is one Sri N. Subramanyam aged about 65 years. The multiplier applicable to his age group is T''.

As per Ex.P6 wound certificate the claimant has sustained fracture of left scapula, head injury and other injuries. PW.3 Dr. in his evidence has stated claimant has suffered disability of 36% to the limb and 12% to the whole body.

Considering the nature of injuries sustained by the claimant a sum of Rs. 30,000/- is awarded towards pain and suffering as against Rs. 15,000/- awarded by the Tribunal. As Rs. 1,24,445/- awarded by the Tribunal towards medical expenses is based on the medical bills and prescriptions produced by the claimant, the same is just and proper and there is no scope for enhancement. He was treated as in-patient for seven days. Considering the same, Rs. 15,000/- awarded by the Tribunal towards conveyance, nourishing food and attendant charges is just and proper and there is no scope for enhancement under this head.

The appellant in this case has claimed that he was earning Rs. 20,000/- p.m. by doing agriculture and gold business but, he has not produced any document to prove the same. In the absence of proof of income, considering his age as 65 years, the year of accident as 2009 and his avocation as daily wager, his income is taken at Rs. 4,500/- per month. The nature of injuries sustained by the appellant suggest that he must have taken treatment and rest for a period of atleast three months. Thus, Rs. 13,500/- is awarded towards loss of income during laid-up period as against Rs. 9,000/- awarded by the Tribunal.

Considering the nature of injuries sustained by the claimant, the disability stated by the doctor and an amount of discomfort and unhappiness he has to undergo in his future life Rs. 15,000/- awarded by the Tribunal towards loss of amenities is just and proper.

The Doctor has stated that appellant has suffered disability of 36% to the lower limb. Considering the same 10% disability taken by the Tribunal to the whole body is sound and proper. The income of the claimant is assessed at Rs. 4,500/- p.m. the multiplier applicable to his age group is 7, thus loss of future income would be Rs. 37,800/- (Rs. 4,500/- x 10/100 x 12 x 7) and it is awarded.

Thus the appellant-claimant is entitled for the following compensation:

Accordingly the appeals are allowed in-part and the Judgment and awards of the Tribunal are modified to the extent stated herein above. The appellant-claimant in MFA 10957/11 (MVC No. 8400/2009) is entitled for a total compensation of Rs. 3,05,709/- as against Rs. 2,31,010/- awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 74,699/- rounded off to Rs. 74,500/- from the date of claim petition till the date of realization, and in MFA No. 10956/11 (MVC 8399/2011) the appellant/claimant is awarded the compensation of Rs. 2,30,745/- as against Rs. 1,98,645/- awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 32,100/- from the date of claim petition till the date of realisation.

The Insurance Co. is directed to deposit the enhanced compensation amount with interest within two months from the date of receipt of a copy of this judgment.

Out of the enhanced compensation 75% with proportionate interest is ordered to be invested in F.D. in any nationalized or scheduled Bank in the name of the claimants for a period of 3 years and the remaining 25% of the amount with proportionate interest is ordered to be released in their favour.

The Tribunal while releasing 25% of the amount is also directed to issue FD slip in favour of the claimants, so that they can withdraw FD amount on its maturity. The Bank or post office in which amount will be kept in FD is directed release the FD amount on its maturity without insisting for an order from the Tribunal.

No order as to costs.