M. Nagesh vs A. Rahamathulla and Others

N.K. Patil, J—This appeal is filed by the claimant against the impugned judgment and award dated 20.06.2014 passed in MVC No. 7810/2012 on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member, MACT, Bengaluru (SCCH - 5) (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 13,07,500/- with interest at 8% p.a. from the date of petition till the date of realisation, on account of the injuries sustained in the road traffic accident. Being dissatisfied by the quantum of compensation awarded by the tribunal, the claimant has presented this appeal.

The brief facts of the case are:

The appellant was aged about 35 years, working as a Carpenter earning Rs. 10,000/- p.m. He was hale and healthy prior to the accident. When things thus stood, that on, 02.08.2012 at about 11.30 p.m., when the appellant was traveling as a pillion rider on a Motor Cycle bearing registration No. KA-51-R-7625 along with one Nagesh on NH-7 service road, near Attibele checkpost, a Tata Sumo bearing registration No. KA-02-N-8270, came from opposite direction at a very high speed and struck the two wheeler head-on. Due to the impact, the rider and the pillion rider/appellant fell down and sustained grievous injuries. He was shifted to Sparsh Hospital, where he was treated as inpatient for 28 days. During the course of treatment, to save the life of the appellant, right lower limb was amputated above knee. On account of the injuries sustained in the accident, he has spent huge amount towards conveyance, nourishing food and attendant charges and medical expenses. He has examined the doctor - PW.2, who after radiological and clinical examination has opined that the appellant is suffering from permanent functional disability at 100%. The doctor has also deposed that the appellant requires future medical treatment for fixing of artificial limb. It is his further case that due to the injuries sustained in the accident, he is not in a position to continue his profession. On account of the injuries sustained, the appellant was constrained to file a claim petition under Section 166 of the M.V. Act before the Tribunal seeking compensation in a sum of Rs. 30,00,000/- against the respondents. The Tribunal after appreciation of the oral and documentary evidence and other relevant material available on file, allowed the claim petition in part awarding compensation of Rs. 13,07,500/- with interest at 8% p.a. from the date of claim petition till the date of realization. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented the instant appeal seeking enhancement contending that the compensation awarded by the Tribunal is inadequate.

We have heard Sri N. Gopalkrishna, learned Counsel appearing for the appellant and Sri B.C. Seetharama Rao, learned Counsel appearing for the second respondent - Insurance Company.

Sri N. Gopalknshna, learned Counsel for the appellant submits that the Tribunal has erred in not taking the correct income of the appellant. The tribunal has also erred in not awarding reasonable compensation towards injury pain and sufferings, loss of income during laid up period, loss of future income and not awarding any compensation towards future medical expenses. The appellant was admitted for a period of 28 days in the hospital as inpatient and undergone surgery for amputation of right leg above knee and sustained other grievous injuries like right upper hand hanging and no sensation due to unsuccessful nerve surgery. The doctor who treated the appellant is also examined and he has opined that the appellant has sustained 100% permanent functional disability and he cannot continue the work of Carpenter but the tribunal has not assessed the disability to whole body. The doctor has also opined that the appellant requires artificial limb in future and has to incur some reasonable expenses. He further contends that the appellant has suffered loss of amenities, discomforts and unhappiness throughout his life. He has taken follow up treatment and bed rest as per the advice of the doctor. These aspects have not been looked nor considered by the tribunal while awarding compensation. The appellant was earning Rs. 10,000/- p.m. but the tribunal has taken a meager amount of Rs. 3,375/- p.m. and deducted 50% towards the personal expenses of the deceased, contrary to the judgment rendered by the 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 .

Further he submitted that this Court and the Apex Court in catena of judgments have awarded 9% interest per annum under similar circumstances. Therefore, he prays to reassess the income of the deceased and award interest at the rate of 9% p.a. instead of 8% p.a. as awarded by the tribunal, by modifying the judgment and award of the Tribunal.

Per contra, learned Counsel for the insurance company inter alia submitted that the impugned judgment and award passed by the tribunal is after appreciation of the oral and documentary evidence on record. The compensation awarded is proportionate to the injuries suffered by the appellant, and hence, interference of this Court is uncalled for.

After critical evaluation of the oral and documentary evidence available on record and considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the only point that arises for our consideration is:

Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

After careful perusal of the impugned judgment and award passed by the Tribunal, what emerges is that, the occurrence of the accident and the injuries sustained by the appellant are not in dispute. Further, the Tribunal erred in awarding only Rs. 1,00,000/- towards pain and sufferings. He has undergone amputation of the right leg above knee and undergone treatment for a period of 28 days in the hospital as an inpatient. He might have suffered pain and agony during the treatment period. Therefore, we deem it fit to award Rs. 2,00,000/- towards pain and sufferings as against the compensation awarded by the Tribunal.

The Tribunal has erred in awarding compensation of Rs. 50,000/- towards loss of amenities, discomforts and unhappiness in life, which is on the lower side. The appellant aged about 35 years, has to undergo discomforts and unhappiness throughout his life. He was a Carpenter by avocation and due to the injuries suffered in the accident he is unable to continue his profession. Therefore, we award Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness as against the compensation awarded by the Tribunal.

The doctor has assessed the functional disability at 100% on account of amputation of right leg above knee. The tribunal has erred in not assessing the disability to the whole body. As per the evidence of the doctor - PW.2, the appellant has suffered 100% disability to the whole body as the appellant has undergone amputation of right leg above knee and right upper hand hanging and no sensation due to unsuccessful nerve surgery. Therefore, we re-assess the whole body disability at 100%. The tribunal has rightly assessed the income of the deceased at Rs. 6,750/- p.m. but erred in deducting 50% towards the personal expenses of the appellant in injuries case. Taking the income of the appellant at Rs. 6,750/- p.m. as assessed by the tribunal and adopting the appropriate multiplier of ''15'' for his age, we award Rs. 12,15,000/- (Rs. 6,750/- x 12 x 15) as against Rs. 6,07,500/- awarded by the tribunal.

The tribunal has awarded just and reasonable compensation of Rs. 5,35,000/- towards medical expenses and Rs. 15,000/- towards conveyance, nourishing food and attendant charges and interference by this Court is uncalled for.

The tribunal has erred in not awarding any compensation towards future medical expenses. As discussed above and as per evidence of the doctor, the appellant requires artificial limb in future and has to incur future incidental expenses. Therefore, we deem it fit to award Rs. 1,00,000/- under the said head.

As rightly pointed out by the learned Counsel for the appellant, the rate of interest at 8% p.a. awarded by the tribunal is on the lower side. As per catena of judgments rendered by the Apex Court and this Court, we deem it fit to award the interest at the rate of 9% p.a. on the enhanced compensation.

In the light of the facts and circumstances of the case, as stated above, the instant appeal filed by the appellant is allowed in part. The judgment and award dated 20.06.2014 passed in MVC No. 7810/2012 on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member, MACT, Bengaluru (SCCH - 5), is hereby modified. The break up is as follows:

The appellant is entitled for a total compensation of Rs. 21,65,000/-. The enhancement amount comes to Rs. 8,57,500/- with interest at 9% p.a. from the date of petition till the date of realization.

The Respondent No. 2 - Insurance Company is directed to deposit the enhanced compensation of Rs. 8,57,500/- together with interest at 9% p.a. within a period of three weeks from the date of receipt of copy of the judgment.

Out of the enhanced compensation of Rs. 8,57,500/-, a sum of Rs. 6,00,000/- with proportionate interest shall be invested in F.D. in the name of appellant, in any Nationalised or Scheduled or Grameena bank for a period of 10 years and renewable for another 10 years, with liberty to withdraw the interest periodically.

Remaining Rs. 2,57,500/- with proportionate interest shall be released in favour of the appellant immediately on deposit by R2 -Insurance Company.

Office to draw the award, accordingly.