Madesh vs Bangalore Metropolitan, Transport Corporation and Others

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 29.01.2011 passed in MVC No. 6494/2009 on the file of V Addl. Judge, Court of Small Causes, Mayohall Unit, Member, MACT, Bangalore (SCCH-20).

The Tribunal by its judgment and award has awarded a sum of Rs. 1,90,600/- under different heads with interest at 6% per annum from the date of petition till the date of deposit, on account of the injuries sustained by the claimant in a road traffic accident.

It is the case of the appellant that he was aged about 23 years, hale and healthy at the time of accident and by working as a Water filter operator at S.T.P. Factory, he was earning Rs. 6,000/- per month. On 25.05.2009 at about 7.50 p.m., when he was riding his motor cycle bearing No. KA-05/EE-9878, in front of J.E. Enterprises, Kadugodi, Bangalore, he met with an accident due to rash and negligent driving by the driver of BMTC Bus bearing No. KA-01/FA-1689. Due to impact, he sustained the following injuries:

1) Entire right forearm skin out and muscles are exposed.

2) Right upper limb elbow dislocated.

3) Right upper limb arm abraded profusely bleeding.

4) Abrasion present.

5) Pulse not felt in the right hand

Discharge summary produced at Ex. P5 shows that the appellant has sustained type III, an open fracture both bones of right forearm and right capitulum with degloving injury of arm and elbow. He was treated as inpatient for a period of 74 days in the hospital and undergone operation.

It is the further case of the appellant that, he has spent considerable amount towards medical expenses, conveyance, nourishing food and attendant charges and on the advice of the doctor he has taken bed rest and follow-up treatment. He suffered mental pain and agony during treatment period and has to suffer discomfort and unhappiness through out his life. He cannot attend his work as effectively as he was doing earlier to the accident. Therefore, he was constrained to file a claim petition before the Tribunal under Section 166 of M.V. Act, claiming Rs. 8,00,000/-. The said claim petition had come up for consideration before the Tribunal and the Tribunal in turn after appreciating the oral and documentary evidence and other material available on file, has allowed the same in part and awarded the compensation of Rs. 1,90,600/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit. Being dissatisfied with the compensation awarded by the Tribunal, the appellant has presented this appeal contending that the quantum of compensation awarded by the Tribunal is inadequate, which requires to be enhanced reasonably.

The submission of Sri Harish Kumar, learned counsel appearing for the appellant at the outset is that the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, loss of income during laid up period, and loss of future income. What is awarded is inadequate. Further, the Tribunal has erred in assessing the income of the appellant at only Rs. 3,000/- per month since he was working as a Water Filter Operator at S.T.P. Factory and earning Rs. 6,000/- per month and the accident is of the 2009. Therefore, he submits, the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation under all heads.

As against this, the learned counsel Sri Venkatapathi, appearing for the 2nd respondent sought to substantiate the impugned judgment and award passed by the Tribunal as just and reasonable and prayed for dismissal of the appeal.

After considering the submission made by the learned counsel appearing for both the parties and on careful perusal of the material available on record including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is :

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

Occurrence of accidence resulting in the injuries to the appellant is not in dispute. Though, the appellant contends that he was working as a Water Filter Operator in S.T.P. Factory and earning Rs. 6,000/- per month, no credible document is produced to establish the same. Therefore, in the absence of any documentary evidence, having regard to the age, avocation and year of accident, I can safely re-assess the income at Rs. 4,500/- per month, to meet the ends of justice. Further, it emerges from the records that, the appellant has undergone treatment as inpatient in the hospital for 74 days and he might have spent considerable amount towards medical expenses, conveyance, nourishing food and attendant charges during this period. PW 2-Doctor has assessed permanent physical disability at 15.4% to the whole body, but the Tribunal has re-assessed the same at only 5%. The same calls for interference, as it is on the lower side. However, having regard to the nature of injuries sustained by the appellant and the duration of treatment undergone, I can safely reassess the permanent whole body disability at 10%, to meet the ends of justice and presume that on the advice of doctor, the appellant might have taken bed rest and follow-up treatment at least for three months. Taking into consideration all these relevant aspects, I deem it fit to award a sum of Rs. 20,000/- towards conveyance, nourishing food and attendant charges as against Rs. 14,800/-, Rs. 14,500/- towards loss of income during laid up period as against Rs. 7,400/-, Rs. 97,200/- (Rs. 4,500/- x 12 x 10/100 x 18) towards loss of future income due to disability as against Rs. 32,400/- awarded by the Tribunal.

However, the Tribunal has rightly awarded a sum of Rs. 30,000/- towards pain and suffering, Rs. 81,000/- towards medical expenses as per medial bills and Rs. 25,000/- towards loss of amenities. Therefore, no interference is called for under these heads.

Accordingly, appeal is allowed in part. The impugned judgment and award dated 29.01.2011 passed in MVC No. 6494/2009 passed by the V Addl. Judge, Court of Small Causes, Mayohall Unit, Member, MACT, Bangalore (SCCH-20), is hereby modified. The appellant is entitled to Rs. 2,67,700/- with interest at 6% per annum from the date of petition till realization as against Rs. 1,90,600/-. Break up is as follows:

The enhanced compensation comes to Rs. 77,100/-. The 2nd respondent-insurer is directed to deposit the enhanced compensation with interest at 6% per annum from the date of petition till realization within three weeks from the date of receipt of a copy of this Judgment.

The entire enhanced compensation with interest shall be released in favour of the appellant, immediately, on deposit by the insurer.

Draw the award, accordingly.