M. Basavarajappa vs Siddappa

N.K. Patil, J.—Though this appeal is posted for further orders, the same is taken up for final disposal, with the consent of the learned counsel appearing for the parties.

This appeal by the claimant is directed against the impugned judgment and award dated 2nd August 2011, passed in MVC No. 69/2009, by the II Additional Senior Civil Judge, Additional Motor Accident Claims Tribunal-7, Shimoga, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 4,15,200/-, awarded in his favour as against his claim for Rs. 20,00,000/-, is inadequate.

The appellant claims to be aged about 50 years, working as an Agriculturist. He was hale and healthy prior to the date of accident. That at about 4:30 P.M., on 02-08-2008, when the appellant was proceeding in his motor cycle bearing Registration No. KA-140/Q-3816, from Shimoga side towards Holalur on the left side of the road slowly, near Areca Garden of one Jayappa near Holalur, he met with an accident on account of rash and negligent driving by the driver of Tata Indica Car bearing Registration No. KA-48/M-799. Due to the impact, the appellant sustained grievous injuries and immediately, the appellant was shifted to Mc. Gann Hospital, Shimoga and thereafter to Manipal Hospital, as per the advise of the Doctor. In spite of the best treatment, the injuries could not be cured completely and he became permanently disabled.

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 road traffic 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. 20.00 lakhs against the respondents. The said claim petition along with other claim petitions had come up for consideration before the Tribunal on 2nd August, 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. 4,15,200/- 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 third respondent/Insurance Company, for considerable length of time.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in not assessing the reasonable income of the appellant inasmuch as the appellant was working as an Agriculturist, earning a sum of Rs. 15,000/- per month. Further, he submitted that on account of the grievous injuries sustained in the road traffic accident, he was treated as in-patient in the Hospital and has spent huge amount towards medical expenses and other incidental expenses such as conveyance, nourishing food and attendant charges. Further, he submitted that the Doctor has assessed the permanent functional disability and the Tribunal has assessed the whole body disability at 15%. Therefore, considering the age and nature of injuries sustained by the appellant coupled with the percentage of functional and whole body disability, reasonable compensation be awarded towards loss of future income. Further, he vehemently submitted that the Tribunal has failed to award any compensation towards future medical expenses, when in fact, the appellant has sustained grievous injuries and sustained 28% functional and 15% permanent whole body disability. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by enhancing just and reasonable compensation.

Per contra, learned counsel appearing for third respondent/Insurer inter alia contended and sought to justify 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 submitted that the compensation awarded is just and reasonable and interference in the same is unwarranted.

After hearing the learned counsel for the appellant, learned counsel appearing for third respondent/Insurer and after perusal of the impugned 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?"

Facts in brief are that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute... It is further not disputed that the appellant was aged about 50 years and working as an Agriculturist. It is further stated that he was earning Rs. 15,000/- per month. But, no documentary evidence is produced. In the absence of any credible documentary evidence, the Tribunal has assessed the income of the appellant at Rs. 4,000/- per month. The same is on the lower side. Considering the age, avocation of the appellant and also the year of accident, we re-assess the monthly income of the appellant at Rs. 5,000/-, to meet the ends of justice.

Further, so far as the compensation awarded under loss of future earnings, injury, pain and sufferings, loss of income during treatment period and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards future medical expenses. Admittedly, in view of the road traffic accident, the appellant has sustained six injuries, out of which, the Doctor has opined that injury Nos. 1, 2, 5 and 6 are grievous in nature and injury Nos. 3 and 4 and simple in nature.

The Doctor has assessed 28% functional disability and not assessed the whole body disability. But, the Tribunal, after assessing the oral and documentary evidence available on file and also considering the nature of injuries has assessed the whole body disability at 15%. The same, in our opinion, is on the higher side and liable to be re-assessed. Having regard to the facts and circumstances of the case and also the nature of injuries sustained, we re-assess the whole body disability at 10%, to meet the ends of justice. The appellant being aged about 50 years at the time of accident and has to endure the said disability for the rest of his life. Because of the grievous injuries sustained and looking at his age, we presume that he must have been away from work for a period of not less than six months.

Further, it is stated that the appellant took treatment as in patient for some period on account of the grievous injuries sustained in the road traffic accident. 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 50 years at the time of accident, the proper multiplier applicable is ''13'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Further, it can be seen that the Tribunal has not awarded any compensation towards future medical expenses.

Further, during the course of submission, on instructions, learned counsel appearing for appellant submitted that the appellant, during the pendency of this appeal has undergone two more surgeries. Taking this aspect into consideration, we deem it fit to award compensation towards future medical expenses also.

Therefore, having regard to the age, avocation, nature of injuries, functional and permanent whole body disability, nature and duration of treatment undergone and the facts and circumstances of the case on hand, we award a sum of Rs. 75,000/- towards injury, pain and sufferings as against Rs. 70,000/-; Rs. 30,000/-towards conveyance, nourishing food and attendant charges as against Rs. 20,000/-; Rs. 30,000/- towards loss of income during treatment period, at the rate of Rs. 5,000/-per month for a period of six months as against Rs. 20,000/-; and Rs. 78,000/- (i.e. Rs. 5,000/- x 12 x''13'' x 10/100) towards loss of future income as against Rs. 79,000/- awarded by Tribunal and Rs. 20,000/- towards future medical expenses as the Tribunal has not awarded any compensation under this head.

However, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 1,75,000/-towards medical expenses, as per the medical bills and prescriptions and Rs. 50,000/- towards loss of amenities, discomfort and unhappiness. Hence, interference in the same is uncalled for.

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 2nd August 2011, passed in MVC No. 69/2009, by the II Additional Senior Civil Judge, Additional Motor Accident Claims Tribunal-7, Shimoga, is hereby modified, awarding a sum of Rs. 4,58,000/- as against Rs. 4,15,200/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows:

The total compensation would workout to Rs. 4,58,000/- as against Rs. 4,15,200/-. The enhanced compensation would be Rs. 42,800/- with 6% interest per annum.

The third respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 42,800/-, 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, the entire sum shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.