K.V. Vaishakh Sasi vs H.S. Kumar and Others

A.S. Pachhapure, J.—The appellant dissatisfied with the sum awarded for the injuries sustained by him in the motor vehicle accident has filed this appeal seeking enhancement of compensation.

The occurrence of accident, rash and negligent driving and involvement of vehicle are not in dispute. The appeal is confined to quantum of compensation. The appellant has suffered the following injuries:

a) Multiple rib fractures (2nd and 6th ribs) on right side with lung laceration and lung contusion with hemopneumothorax with surgical emphysema;

b) Displaced supracondylar fracture of right elbow with enuropraxia of radial and median nerve

c) Fracture of scapula (r) involving body, spine, acromion extending into glenoid

d) Chip fracture of transverse process of T2 vertebra.

The Tribunal assessed the disability at 15%. As he was a student did not consider the loss of future earnings and granted total compensation of Rs. 3,55,000/-. Dissatisfied with the said sum, the present appeal is filed.

Heard the learned Counsel for both the parties.

Learned Counsel for the appellant submits that the injuries sustained will come in the way of future earnings. Therefore, loss of future earnings has to be granted. It is also his submission that compensation on each of the heads is on the lower side and it needs enhancement.

On the other hand, learned Counsel for the respondents submit that there is no loss of future earnings. As the appellant was studying, the question of granting compensation under the said head does not arise. He also submits that the compensation on each of the heads is just and proper.

Looking to the aforesaid grievous injuries suffered by the appellant, the grant of compensation at Rs. 30,000/- towards pain and sufferings appears to be on the lower side. The appellant has suffered as many as four fractures, nerve injury and other grievous injuries to the lungs. Hence, it would be appropriate to grant additional sum of Rs. 40,000/- For pain and sufferings. Towards medical and incidental charges, a sum of Rs. 2,75,000/- has been granted, though the bills are produced for the sum of Rs. 2,72,882/-. No separate charges have been granted towards food, nourishment, transportation, conveyance and attendant charges etc., Looking to the nature of injuries suffered, the probable period of treatment it would be just and proper to grant the sum of Rs. 20,000/- on these heads.

The Tribunal has granted the sum of Rs. 35,000/- towards disability suffered. It is not in dispute that the appellant was a student of first year MBA and was not earning anything as on the date of accident. But anyhow, as could be seen from the injury suffered and the disability assessed by the Tribunal, in his life time, he has to suffer the disability, it may come in the way of his profession as well, if he does private service, the disability also may be a problem for him. These aspects have been weighed by the Court while assessing the compensation towards loss of amenities, happiness and the probability of earning the income as well.

On this aspect of the matter, learned Counsel for the insurer has relied upon the judgment of this Court in Subashchand Jain Vs. Ganapathi and Another, (2003) ACJ 1005 : (2002) ILR (Kar) 3355 : (2002) 4 KarLJ 433 : (2002) 3 KCCR 1949 , the relevant portion para 8 is extracted hereunder:

"8. At the same time we are conscious of the fact that the extensive injuries has left the appellant crippled for the rest of his life and at any rate it affects his normal functioning and even normal walking of the appellant is affected. There is no doubt that this can have some effect on his business also. But that is not a matter for quantification of compensation. In the circumstances, we award a sum of Rs. 30,000/- under the head "loss of amenities and loss of enjoyment of life."

It is relevant to note that Rs. 15,000/- has been granted towards loss of amenities. The Tribunal having considered the disability has granted compensation of Rs. 35,000/-, but has ignored the fact of probable loss of income due to disability that the appellant has suffered due to the accident. It is in this context that the compensation towards disability has to be more nominal. Taking into consideration that the appellant was a MBA student and due to accident, he cannot walk for long distance, and the disability suffered to his right hand, as he is a right handed person, the sum of Rs. 1,00,000/- appears to be just and proper towards the disability suffered in addition to the compensation awarded by the Tribunal. There are implants at the time of surgery. They have to be removed. No compensation is granted towards loss of future medical expenses. He is entitled to Rs. 20,000/- on this head. Thereby the net additional compensation payable would be as under:

Hence, the appeal is allowed in part. The appellant is entitled to Rs. 1,80,000/- with interest at 9% p.a. from the date of petition till its payment in addition to the compensation awarded by the Tribunal.