Manjunatha N. vs Bharati Axa General Insurance Co. Ltd. and Others

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 27th February 2013 passed in M.V.C. No. 8469/2009 on the file of the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, (SCCH-9), Bangalore, (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. 3,41,821/- 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.

Brief facts of the case of the appellant are that, he was aged about 23 years, hale and healthy prior to the accident, Mason by profession. Be that as it may, he met with an accident on 25.11.2009 at about 6.30 p.m. on Bangalore - Mysore Road near Ghousia College, Ramanagara Town, when he was travelling in a TVS XL Motor cycle bearing registration No. KA-42/J-4625 as a pillion rider towards Bangalore City and the said vehicle was ridden by its rider with due care and caution and observing traffic Rules and Regulations. At that time, the driver of Hyundai Car bearing registration No. KA-51/Z-2989 drove the same at a high speed in a rash and negligent manner and dashed against the said TVS XL from back side, on account of which, he fell down and sustained grievous injuries i.e. fracture shaft of upper 1/3rd of left femur. On account of which, he was initially admitted in the Hospital and thereafter undergone treatment as inpatient for a period of 46 days. It is the case of the appellant that he suffered mental pain and agony, discomfort, unhappiness and frustration during the treatment period and had spent considerable amount towards conveyance, nourishing food and attendant charges and Doctor advised bed rest and follow up treatment for about six months. He examined P.W. -2 - Dr. B. Vishwanath, who after clinical and radiological examination has opined 48% disability to the left lower limb, out of which 1/3rd is taken, i.e. 16% which is the permanent disability to whole body. On account of which the appellant suffered discomfort, unhappiness and frustration throughout treatment period and also has to endure the same throughout his life. Therefore, the same may be compensated towards loss of future income and also as per the evidence of Doctor the claimant requires reasonable expenses towards future medical expenses. 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 and other material available on record, allowed the said claim petition in part and awarded a sum of Rs. 3,41,821/- under different heads with interest at 6% p.a., from the date of petition till its realization, directed the respondents No. 1 and 4 to deposit the compensation in the ratio of 70:30. Being dissatisfied with the impugned Judgment and Award passed by the Tribunal, the appellant has presented 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. R. Lakshmana appearing for Sri. H.B. Somapur at the outset that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and agony, conveyance, nourishing food, loss of income during the laid up period, disability, discomfort, loss of future income and what is awarded is inadequate. To substantiate his contentions, he has taken us through the evidence of Doctor and submitted that the appellant had undergone treatment in the Hospital as inpatient for a period of 46 days and during the treatment the appellant has suffered mental pain and agony and had spent reasonable amount towards conveyance, nourishing food and attendant charges. The Doctor has advised bed rest and follow up treatment on account of disability, discomfort, frustration suffered throughout his life. Further, points out that the Tribunal has erred in taking the income of the appellant at Rs. 5,850/- per month, as the appellant is Mason by profession and the accident occurred on 25.11.2009. These aspects of the matter have not been looked into nor considered by the Tribunal and awarded reasonable compensation. Therefore, the income of the appellant may be reassessed at Rs. 6,500/- to Rs. 7,000/- per month and submits that the impugned Judgment and Award passed by the Tribunal is liable to be modified by awarding reasonable compensation.

Per contra, the learned Counsel appearing for the 1st and 4th respondents inter-alia contended and sought to substantiate that, the impugned judgment and award passed by the Tribunal stating that the same is passed after due consideration of oral and documentary evidence and other material available on record. 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 in the road traffic accident are not in dispute. The appellant was aged about 23 years, Mason by profession and hale and healthy prior to the accident is also not in dispute. He met with a road traffic accident that occurred on 25.11.2009 and on account of which, he sustained grievous injuries i.e. fracture shaft of upper 1/3rd left femur, undergone treatment in the Hospital as inpatient for a period of 46 days and on account of which, he suffered discomfort, unhappiness during the treatment period and he might have spent reasonable amount towards conveyance, nourishing food and attendant charges. The Doctor has opined that appellant has suffered 48% permanent disability to the left lower limb, out of which if 1/3rd is taken 16% would be the permanent disability towards whole body.

Having regard to facts and circumstances stated supra, we can safely re-assess the income of the appellant at Rs. 6,000/- per month to meet the ends of justice and also some reasonable compensation towards conveyance, nourishing food and attendant charges is to be awarded as he suffered mental pain and agony during the treatment period and Doctor has advised bed rest and follow up treatment. Therefore, we presume that he might have taken bed rest during the treatment period for six months on account of discomfort, unhappiness and frustration throughout his life and has to endure the same and further, the appellant is not in a position to do any work what he was doing prior to the accident. Considering the nature of injuries sustained and the disability suffered, we are of the view that it has to be compensated on account of permanent disability towards loss of future income. Taking all these relevant aspects for consideration, we deem it fit to award Rs. 60,000/- towards injury, pain and suffering as against Rs. 30,000/-, Rs. 25,000/- towards conveyance, nourishing food and attendant charges as against Rs. 9,200/-, Rs. 36,000/- towards loss of income during the treatment period as against Rs. 20,400/- at the rate of Rs. 6,000/- per month for a period of six months, Rs. 50,000/- towards loss of amenities, discomfort, unhappiness as against Rs. 30,000/-, Rs. 2,07,360/- towards loss of future income as against Rs. 2,02,176/- (Rs. 6,000/- x 12 x 18 x 16/100).

The Tribunal is justified in awarding Rs. 19,045/- towards medical expenses as per medical bills and Rs. 25,000/- towards future medical expenses and the same does not call for interference by this Court.

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. 4,22,405/- as against Rs. 3,41,821/- awarded by the Tribunal. There would be enhancement of Rs. 80,584/- with interest at 6% p.a. 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 27th February 2013 passed in M.V.C. No. 8469/2009 on the file of the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, (SCCH-9), Bangalore is hereby modified awarding additional compensation of a sum of Rs. 80,584/- with interest at 6% p.a. from the date of petition till the date of realization.

The respondent Nos. 1 and 4 are directed to deposit the enhanced compensation of Rs. 80,584/- in the ratio of 70:30 with proportionate interest at 6% 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.

The entire enhanced compensation of Rs. 80,584/- with accrued interest shall be released in favour of the appellant immediately on deposit by the respondent Nos. 1 and 4.

Draw the award, accordingly.