Master Nikhil vs R. Divakar and Others

B. Sreenivas Gowda, J.

As these appeals are arising out of a common road traffic accident, they are heard together and disposed of finally by this common Judgment with the consent of the learned counsel appearing for the parties.

Appellants having sustained certain injuries in a road traffic accident filed claim petitions before MACT-8, Sagar seeking compensation under Section 166 of MV Act from the driver, owner and the insurer of the offending vehicle.

The Tribunal by the impugned Judgment and awards has awarded a sum of Rs. 10,500/- as global compensation to the minor claimant in MFA No. 1900/11 (MVC 88/2007), Rs. 3,34,100/- in MFA 1901/11 (MVC 84/2007) and Rs. 2,75,200/- in MFA 1902/11 (MVC 86.2007) with interest at 6% p.a.

The appellants aggrieved by the sum awarded have preferred these appeals seeking enhancement of compensation.

As there is no dispute regarding, certain injuries sustained by the claimants in the road traffic accident that occurred on 26.12.2006 due to rash and negligent driving of the offending lorry bearing Regn. No. KA-14-M-6430 by its driver and the liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is:

"Whether the quantum of compensation awarded by the Tribunal in these cases is just and proper or does it call for enhancement?

After hearing the learned counsel for the parties and perusing the Judgment and awards of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and proper, it is on the lower side and therefore it is required to be enhanced.

In MFA 1900/2011 (MVC No. 88/07), the injured claimant is one Master V. Nikhil aged about 9 years at the relevant point of time. As per Ex. P8, he sustained injury on the front temporal region left side which the doctor has opined that it is simple in nature. He was hospitalized for eight days. The nature of injuries sustained and treatment taken by the appellant are also evident from Ex. P15 Discharge Summary, Ex. P17 and 18 photos and Ex. P. 19 CT scan(X-ray) and supported the oral evidence of father of the claimant viz. Vinod K.G. examined as P.W. 1. The Doctor has not been examined.

Considering the nature of injuries sustained by the claimant, a sum of Rs. 10,000/- is awarded towards pain and suffering as against Rs. 5,000/-. As Rs. 5,500/- awarded by the Tribunal towards medical expenses is as per the medical basis there is no scope for enhancement under this head. He was treated as in-patient for 8 days and during that time he was looked after by his parents leaving their work. Thus a sum of Rs. 10,000/- is awarded towards incidental expenses including the loss of income of the parents of the claimant. The Doctor is not examined regarding disability and its impact on future life. Even otherwise, nature of injuries do not suggest that claimant has suffered disability. Therefore, awarding compensation either towards loss of amenities or towards loss of future income does not arise.

Thus the claimant in this case is entitled for the following compensation:

In MFA 1901/2011 (MVC No. 84/07) injured appellant is one Smt. Rashmi Rozi aged 36 years. She is the wife of one Vinod K.G. who is the appellant in the connected appeal No. MFA 1902/11. As per wound certificate Ex. P. 86, he has sustained fracture of neck and shaft of left femur and middle third (2) intra articulator fracture of left calcaneus(3) Bimalleolar fracture of right ankle (4) Fracture middle 1/3rd of shaft of right humorous with radial nerve palsy (5) fracture supracondylar of right humorous (6) fracture middle third of left clavicle. Injuries sustained and treatment taken by the claimant are also evident from Ex. P84 and P85 the CT scan films and supported by oral evidence of claimant and also the Doctor who were examined as P.Ws. 1 and 2 respectively. P.W. 2 Dr. Siddesh in his evidence has stated that claimant has suffered permanent partial disability of 42% to left lower limb, 18% of permanent partial disability to right upper limb and 12% permanent partial disability to right lower limb. He advised the claimant to take rest for six months.

Considering the nature of injuries sustained by the claimant, a sum of Rs. 75,000/- is awarded towards pain and sufferings as against Rs. 50,000/- awarded by the Tribunal. As Rs. 1,28,471,05/- awarded by the Tribunal is as per medical bills produced by the claimant the same is just and proper and there is no scope for enhancement under this head. She was treated as in-patient for 19 days in a private hospital. Considering the same, Rs. 10,000/- is awarded towards incidental expenses such as conveyance, nourishing food and attendant charges. She claims to have been earning Rs. 15,000/- per month by teaching students in the Computer firm running by her husband apart from doing household work and the same is not established by adducing evidence.

In the absence of proof of income, considering her age as 32 years, year of accident as 2006 and avocation as home-maker, her income is assessed at Rs. 5,000/-. Nature of injuries suggest, she must have been under rest and treatment for at least six months. Thus, Rs. 30,000/- is awarded towards loss of income during laid-up period. Considering the nature of injuries sustained, the disability stated by the Doctor and an amount of discomfort and agony she has to undergo in her future life, a sum of Rs. 40,000/- is awarded towards loss of amenities as against Rs. 20,000/- awarded by the Tribunal.

The income of the claimant is assessed at Rs. 5,000/- per month. As per the disability stated by the Doctor i.e. 42% of permanent partial disability of left lower limb, 18% of permanent partial disability of right upper limb and 12% permanent partial disability of right lower limb. The Tribunal is justified in taking permanent disability at 20%. Multiplier applicable to her age is Rs. 16''. Thus, the Loss of future income works out to Rs. 1,92,000/- (Rs. 5,000/- x 20/100 x 12 x 16) and it is awarded.

Thus the appellant-claimant is entitled for the following compensation in the appeal:

In MFA 1902/2011 (MVC No. 86/07) injured claimant is one Sri Vinod K.G. S/o. late Krishna aged 37 years. As per wound certificate Ex. P108, the claimant has sustained fracture of right knee and other injuries to left hand. He was treated as in-patient for a period of 14 days. Injuries sustained and treatment taken by the claimant are also evident from Ex. P115 to 117 X-rays and supported by oral evidence of claimant and also the Doctor who were examined as P.Ws. 1 and 2 respectively. Based on medical evidence, the Tribunal has taken permanent disability at 5%. The same is just and proper. Considering the nature of injuries sustained by the claimant, Rs. 75,000/- awarded by the Tribunal towards pain and suffering is just and proper and there is no scope for enhancement. As Rs. 28,557.15 awarded by the Tribunal towards hospital and medical charges is as per the medical bills and prescriptions produced by the claimant the same is just and proper and there is no scope for enhancement.

Considering the duration of treatment, Rs. 29,200/- awarded by the Tribunal towards incidental expenses such as traveling expenses, extra nourishment food and attendant charges is just and proper and there is no scope for enhancement under this head. He claims to have been a partner in a Computer firm. Therefore, awarding compensation under loss of income during laid-up period and loss of future income does not arise. Nevertheless. Claimant has to bear with the disability stated by the Doctor and certain amount of discomfort and unhappiness in future life. Therefore, Rs. 54,000/- awarded by the Tribunal towards loss of future income and Rs. 20,000/- awarded towards amenities are treated as one awarded towards loss of amenities and disability (total Rs. 74,000/-). Rs. 8,000/- awarded towards damages for the damage caused to his vehicle is just and proper. As the total amount of compensation of Rs. 2,75,200/- awarded by the Tribunal is found to be more than just entitlement and there is no scope for enhancement. Thus, this appeal is liable to be dismissed as devoid of merit.

Accordingly, MFA Nos. 1900/2011 and 1901/2011 (MVC Nos. 88/2007 and 84/2007) are allowed in-part and the Judgment and awards of the Tribunal are modified to the extent stated herein above. MFA No. 1902/2011 (MVC 86/2007) is dismissed.

The appellant-claimant in MFA 1900/2011 (MVC No. 88/2007) is entitled for a total compensation of Rs. 25,500/- as against global compensation of Rs. 10,500/- awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 15,000/- from the date of claim petition till the date of realization.

The appellant-claimant in MFA No. 1901/2011 (MVC No. 84/2007), is awarded the compensation of Rs. 4,90,471,05/- against Rs. 3,34,071-05 awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 1,56,400/- from the date of claim petition till the date of realisation.

The Insurance Co. is directed to deposit the enhanced compensation amount in the above two MFAs with interest within two months from the date of receipt of a copy of this judgment.

Out of the enhanced compensation in both the above appeals, 75% with proportionate interest is ordered to be invested in F.D. in any nationalized or scheduled Bank in the name of the claimants for a period of 3 years and the remaining 25% of the amount with proportionate interest is ordered to be released in their favour.

The Tribunal while releasing 25% of the amount is also directed to issue FD slip in favour of the claimants, so that they can withdraw FD amount on its maturity. The Bank or post office in which amount will be kept in FD is directed release the FD amount on its maturity without insisting for an order from the Tribunal.

No order as to costs.