Manjunath vs Ranganathagiri and Another

Budihal R.B., J.—This appeal is directed against the judgment and award dated 29.12.2011 passed by the Senior Civil Judge, and Addl. MACT, Karkala, (for short ''the Tribunal'') in MVC No. 974/2010. By the judgment and award, the Tribunal has awarded an amount of Rs. 3,25,600/- with interest at 6% p.a. from the date of petition till realization. Brief facts leading to the case are that the appellant-petitioner filed the petition u/s 166 of the MV Act, claiming compensation of Rs. 20,00,000/- with interest at 12% p.a. from the respondents on account of the injuries sustained by him in the road traffic accident. On 14.3.2010, at about 6.00 p.m. when the appellant was talking with Ashok standing on the left side of Shimoga-Bhadravathi road, the driver of Tipper Lorry bearing registration No. KA-14-7369 drove the same in a rash and negligent manner and dashed against the appellant and Ashok. Due to the impact, the appellant and Ashok sustained grievous and simple injuries. The appellant was taken to Nanjappa Hospital, Shimoga, and taken the treatment. Thereafter, he was shifted to K.M.C. hospital, Manipal, for further treatment and discharged on 1.4.2010. He underwent surgeries. The appellant has again taken the treatment at Siddhivinayaka hospital Padubidri, for three days and thereafter, he was shifted to Spandana Maternity and General Hospital, Karkala. He was aged 32 years at the time of the accident and he was working as a driver of the tractor at National Construction work, Thirthahalli earning Rs. 7,500/- p.m. It is the case of the appellant that due to the injuries sustained, he is permanently disabled and not in a position to work. He has also suffered mental pain and agony. It is his further case that he has incurred expenses of Rs. 3,00,000/- towards medicines and Rs. 40,000/- towards conveyance expenses. It is his further case that he requires Rs. 50,000/- towards future medical expenses. Hence, he sought compensation of Rs. 20,00,000/- with interest at 12% p.a.

Respondent No. 1 is the owner of the offending vehicle. In the written statement filed before the Tribunal, he has denied the negligence on the part of the driver of the lorry. It is contended that the appellant and Ashok while crossing the road fell down and sustained injuries themselves. It is further contended that the tipper lorry never dashed against them. Respondent No. 2 insurance company has denied the case of the appellant and its liability. The Tribunal after considering the evidence on record, both oral and documentary, awarded the compensation of Rs. 3,25,600/- with interest at 6% p.a. from the date of petition till realization.

Learned Counsel appearing for the appellant, during the course of the arguments, submitted that though the appellant placed materials before the Tribunal that he was earning Rs. 7,500/- p.m., the Tribunal has not taken this aspect into consideration and has assessed the monthly income of the appellant at Rs. 3,500/- which is on the lower side. The learned Counsel further submitted that even with regard to the disability, though P.W.3 Doctor has assessed the permanent disability at 46% towards right lower limb, the Tribunal has not taken into consideration the said fact and assessed 15% permanent disability. He submitted that the award of the compensation on the other heads also is on the lower side and the same has to be reassessed properly by awarding just and reasonable compensation.

As against this, learned Counsel appearing for the respondent insurance company during the course of the arguments, submitted that the Tribunal has taken both the oral and documentary evidence into consideration in awarding the reasonable compensation. It has rightly assessed the income of the appellant. There are no grounds for this Court to interfere with the judgment and award passed by the Tribunal and sought to dismiss the appeal.

Having considered the arguments of the learned Counsel on both sides and perusing the judgment and award passed by the Tribunal, oral and documentary evidence and also the other materials on record, the only point that arises for or consideration is:

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

Looking to Ex. P.2 wound certificate, it indicates that the appellant has sustained the following 12 injuries.

1) Swelling deformity of right thigh;

2) A laceration wound of 2" x 1C x 1/2" over the right Thigh with active bleeding;

3) Swelling deformity of lower 1/3rd of right leg;

4) An abrasion of 1" x 1" over the left leg; 6"

5) A laceration wound of 2" x 1" x 1/2" over the dorsum of left food;

6) A lacerated wound of 2" x 1" x 1/2" over the left side of face

7) A compound fracture of right tibia

8) Fracture of left clavicle

9) Fracture of left scapula

10) Compound fracture of right femur

11) Multiple lacerated wounds of 2" x 1" x 1/2" over The high parietal and right occipital region of scalp with active bleeding

12) Bilateral maxilla bone fracture.

P.W.3-Dr. Ashwath Acharya, who treated the appellant at Kasturba hospital has issued Ex. C5-disability certificate stating that the appellant is having permanent disability of 46% over the right lower limb function. The appellant has taken treatment for more than one month as inpatient at various hospitals and suffered grievous and fracture injuries. Regarding the monthly income, P.W.1 in his evidence, has deposed that he was earning Rs. 7,500/- p.m. and he was serving as a driver of the tractor. Therefore, perusing the materials on record, the monthly income of Rs. 3,500/- assessed by the Tribunal is on the lower side. Hence, we reassess the monthly income of the appellant at Rs. 5,000/- p.m. which is just and reasonable. The Tribunal, without considering the evidence of P.Ws.1 and 3, has assessed the permanent disability of the appellant at 15%, which is on the lower side and we deem fit to reassess the disability at 16% to the whole body. The appellant has undergone two surgeries and suffered mental agony and shock. So he is entitled to Rs. 75,000/- towards pain and suffering as against Rs. 50,000/- awarded by the Tribunal. He is also entitled to Rs. 30,000/- towards food, conveyance and attendant charges as against Rs. 20,000/-, Rs. 15,000/- towards loss of income during laid up period for three moths at the rate of Rs. 5,000/- per month, Rs. 50,000/- towards loss of amenities as against Rs. 30,000/-, Rs. 1,44,000/- towards loss of future income as against Rs. l,00,800/- (i.e. 5000x12x15x16/100). So far as compensation towards medical expenses and the future medical expenses is concerned, the Tribunal has awarded Rs. 1,04,794/- and Rs. 20,000/- respectively, which is just and reasonable and it does not call for interference. In all, the appellant is entitled to the compensation of Rs. 4,38,794/- and the break up is as follows:

The Tribunal has awarded the compensation of Rs. 3,25,600/-. If the said amount is deducted from Rs. 4,38,794/-, balance comes to Rs. 1,13,194/-. After deducting Rs. 11,194/- (Rs. 1,13,194 x 10/100), towards 10% contributory negligence on the part of the appellant from Rs. 1,13,194/-, the net amount comes to Rs. 1,02,000/-, which is the enhanced compensation. In the result, the appeal is allowed in part. The judgment and award dated 29.12.2011 passed by the Senior Civil Judge, and Addl. MACT, Karkala, in MVC No. 974/2010 is hereby modified.

The respondent insurance company is directed to deposit the enhanced compensation of Rs. 1,02,000/- with interest at 6% p.a. from the date of petition till realization before the Tribunal within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation, Rs. 50,000/- with proportionate interest shall be invested in Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant for a period of ten years and renewable for another five years, with liberty to him to withdraw the proportionate interest accrued on it.

The remaining Rs. 52,000/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the insurance company.

Draw the award, accordingly.