Madhava Bangera vs Abdul Hameed and Others

N.K. Patil, J—This appeal by the claimant is directed against the impugned judgment and award dated 28th February 2013 passed in M.V.C. No. 1847/2011 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal at Mangalore, (hereinafter referred to as ''Tribunal'' for short) seeking enhancement of compensation.

The Tribunal by its impugned judgment and award, has awarded a sum of Rs. 3,95,800/- with interest at 6% p.a., from the date of petition till its realization under different heads on account of the grievous injuries sustained by the appellant in the road traffic accident. The claimant has presented this appeal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.

It is the case of the appellant that, he was aged about 49 years, Coolie, earning more than Rs. 8,000/- per month and hale and healthy prior to the accident. Further, he contended that on 26.7.2011 at about 8.45 p.m. when he was walking by the side of the road near Ramanath Sanitary Shop, Kapikad, Ullal Village, Mangalore Taluk, the driver of a Car bearing Regn. No. KA-22/M-8844 came in rash and negligent manner and dashed against the appellant. Due to the impact he fell down and sustained the following grievous injuries:

"a) Lacerated wound measuring 5 cms. X 2 cms x Bone deep, obliquely placed over the right eye brow;

b) Tenderness and swelling over the left knee joint with underlying tear of anterior cruciate ligament, posterior cruciate ligament, medial collateral ligament and medical patellar retinaculum ;

c) Cerebral concussion with cerebral oedema and left intraventricular bleeding (brain);

d) Tenderness and swelling over the neck with cervical vertebrae 5 and cervical vertebrae 6 disc prolapse;

e) Tenderness over the left shoulder."

On account of which, he had undergone treatment at Unity Health Complex, Mangalore as inpatient for a period of 15 days. He has examined the Doctor and after due clinical and medical examination, the Doctor has assessed disability of 15% to left upper limb due to weakness of grade 4 on left upper limb, 20% disability to left lower limb due to weakness of grade 4 on the left lower limb, 34% disability to the right knee joint and appellant has suffered disability in all 32% to the whole body. It is the case of the appellant that, he had spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges and as per the advise of Doctor he was in bed rest for more than 12 months on account of discomfort, unhappiness throughout his life. The injuries sustained by the appellant are of permanent in nature and he is not in a position to do coolie work as he was doing earlier. The Tribunal has not awarded reasonable compensation towards loss of future income on account of permanent disability. Taking all these aspects into consideration, the claimant filed a claim petition under Section 166 of M.V. Act before the Tribunal against the respondents claiming compensation on account of the grievous injuries sustained in the road traffic accident. The said matter had come up for consideration before the Tribunal. The Tribunal in turn after due consideration of oral and documentary evidence available on record, allowed the said claim petition in part and awarded a sum of Rs. 3,95,800/- with interest at 6% p.a., from the date of petition till its realization. Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the appellant has filed this appeal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.

It is the submission of learned Counsel appearing for the appellant Sri. C.P. Rajesh at the outset that, the Tribunal has erred in not assessing the reasonable income of the appellant as he is doing coolie work, earning more than Rs. 8,000/- per month and the same is to be re-determined and award reasonable compensation. Further, he submitted that the appellant had suffered grievous injuries in the road traffic accident and he has examined the Doctor, who in turn has assessed the permanent disability at 32% to whole body and as the appellant was working as coolie he is not in a position to do his job on account of permanent disability sustained in the road traffic accident and has suffered pain and agony. The appellant has undergone follow up treatment for more than 12 months on account of discomfort, frustration and unhappiness. This aspect of the matter has not been looked into or considered by the Tribunal. On the contrary, the Tribunal has taken the disability at only 20% to the whole body as against 32% assessed by the Doctor. Therefore, he submits that the same may be re-appreciated after due consideration of oral and documentary evidence available on record having regard to the year of accident, age and avocation of the appellant and the impugned Judgment and Award requires modification by enhancing reasonable compensation.

As against this, the learned Counsel appearing for the 2nd respondent - Insurer inter-alia, sought to substantiate that, the impugned judgment and award passed by the Tribunal is after due consideration of oral and documentary evidence and relevant material available on record and also having regard to the age, avocation and year of the accident, nature of injuries sustained by the appellant. Therefore, interference by this Court is not called for.

After careful consideration of the submissions made by the learned Counsel appearing for both the parties and on 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 the accident and the resultant grievous injuries sustained by the appellant are not in dispute. Further, it is not in dispute that the appellant was aged about 49 years and a Coolie. Having regard to the age, avocation and year of accident, we can safely re-assess the income of the appellant at Rs. 6,000/- per month to meet the ends of justice. On account of the injuries sustained in the road traffic accident, he undergone treatment for a period of 15 days as inpatient in the Hospital and also examined the Doctor. The Doctor in turn has assessed the disability as stated supra. The Tribunal has rightly assessed 20% permanent disability to whole body and no interference is called for.

Further, the Doctor has advised to take bed rest, follow up treatment atleast for a period of 12 months and also the appellant might have suffered pain and agony and suffer future discomfort throughout his life. The appellant is not in a position to do his coolie work as he was doing earlier. Considering the nature of injuries sustained and disability assessed by Doctor, we are of the view that the appellant has made out a case for awarding reasonable compensation towards loss of future income. As the appellant was aged about 49 years, the appropriate multiplier applicable is ''13''. Accordingly, having regard to the facts and circumstances of the case, age, avocation of the appellant and year of accident, nature of injuries sustained and nature and duration of treatment undergone, the appellant is entitled for compensation of Rs. 72,000/- towards loss of income during the treatment period as against Rs. 48,000/- at the rate of Rs. 6,000/- per month for a period of 12 months, Rs. 75,000/- towards loss of amenities as against Rs. 50,000/-, Rs. 1,87,200/- towards loss of future income as against Rs. 1,24,800/- (Rs. 6,000/- x 12 x 13 x 20/100). Further, the Tribunal has rightly awarded Rs. 80,000/- towards pain and suffering, Rs. 78,000/- towards Medical expenses as per the Medical Bills and Rs. 15,000/- towards conveyance, nourishing food and attendant charges. Therefore, interference by this Court is not called for.

Therefore, the appellant is entitled for total compensation under different heads as follows:

In all, the appellant/claimant is entitled to total compensation of Rs. 5,07,200/- as against Rs. 3,95,800/- awarded by the Tribunal. There would be enhancement of Rs. 1,11,400/-.

As rightly pointed out by the learned Counsel appearing for the appellant that the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side. In the light of the judgments of Apex Court and this Court in host of judgments, we deem fit to award interest at the rate of 9% p.a. on the enhanced compensation from the date of petition till realization.

Having regard to the facts and circumstances of the case referred above, the instant appeal filed by the appellant is allowed in part. The impugned judgment and award dated 28th February 2013 passed in M.V.C. No. 1847/2011 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal at Mangalore is hereby modified awarding a sum of Rs. 1,11,400/- with interest at 9% p.a. on the enhanced compensation from the date of petition till the date of realization, in addition to the compensation awarded by the Tribunal.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,11,400/- with interest at 9% p.a. from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of the judgment and award.

Out of the enhanced compensation amount of Rs. 1,11,400/-, 50% with proportionate interest shall be deposited in the name of the appellant in any Nationalized or Scheduled Bank or Grameena Bank, for a period of 5 years and renewable for another 5 years and he is entitled to withdraw the periodical interest accrued on it.

The remaining 50% with proportionate interest shall be released in favour of the appellant immediately on deposit by the 2nd respondent-Insurer.

Draw the award, accordingly.