Mrs. S.R. Shanthala Murthy vs Sri. V. Ramesh and M/s. United India Insurance Co., Ltd.

N.K. Patil

This appeal by the claimant is directed against the judgment and award dated 16th September 2011, passed in MVC No. 7308/2010, by the 14th Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Bangalore (SCCH-10), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,40,200/- with interest @ 6% p.a. awarded in favour of the claimant as against her claim for Rs. 10,00,000/-, is inadequate. The appellant claims to be aged about 43 years and working as Freelance Consultant at different places for organization of Seminars, drafting and preparation of news letters, provision of economics and research data, arrange business meeting with foreign nationals, earning a sum of Rs. 25,000/- per month and was hale and healthy prior to the date of accident. That the occurrence of accident at about 2:45 P.M., on 16-09-2010, at Hulimavu main road from Bannerghatta Road, when the appellant was riding her Honda Activa Scooter bearing Registration No. KA-51/L-1692 from East to West, on account of rash and negligent driving by the driver of a Tata Indica Del Taxi bearing Registration No. KA-51/7096 is not in dispute. It is also not in dispute that the appellant has sustained comminuted fracture upper end of Tibia involving Articular surface and fracture neck of fibula of right leg. She has also undergone an operation for ORIF of fractures of tibia with buttress plates and screws on 20-09-2010. Due to the injuries sustained in the accident, she was shifted to Mathru Nursing Home for first aid and thereafter to Garden City Health Care Academy, 3rd block, Jayanagar, Bangalore for better treatment.

It is her further case that, on account of the accident, she sustained comminuted fracture upper end of Tibia involving Articular surface and fracture neck of fibula of right leg. She has also undergone an operation for ORIF of fractures of tibia with buttress plates and screws on 20-09-2010. The Doctor, on clinical and radiological examination has observed that fracture of tibia showed partial union with implants in situ and fracture of fibula is united and that the appellant has sustained permanent residual physical disability of 19% towards whole body and she has to undergo one more operation for removal of implants. For the treatment of the said injuries, she has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, she has to be compensated reasonably.

On account of the injuries sustained in the accident, the appellant filed the claim petition u/s 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 10,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 16th September, 2011. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 1,40,200/- under different heads, with interest at 6% per annum, from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant and the Insurer.

After hearing the learned counsel appearing for the appellant and the Insurer and after going through the impugned judgment and award passed by Tribunal, I am of the view that, the Tribunal, grossly erred in not awarding reasonable compensation towards pain and sufferings, medical expenses, conveyance, nourishing food and attendant charges, loss of amenities, discomfort and unhappiness on account of disability, etc. Further, the Tribunal failed to award any compensation towards future medical expenses.

After perusal of the impugned judgment and award passed by Tribunal, it can be seen that the appellant has sustained comminuted fracture upper end of Tibia involving Articular surface and fracture neck of fibula of right leg. She has also undergone an operation for ORIF of fractures of tibia with buttress plates and screws on 20-09-2010. The Doctor, on clinical and radiological examination has observed that fracture of tibia showed partial union with implants in situ and fracture of fibula is united and that the appellant has sustained permanent residual physical disability of 19% towards whole body and she has to undergo one more operation for removal of implants. But, the Tribunal has re-assessed the disability at 10% and awarded compensation towards loss of amenities, discomfort and unhappiness as also towards disability. The same is on the lower side and needs to be redetermined. The appellant being aged about 43 years has to endure this disability for the rest of her life and it comes in the way of her discharge of duties. Further, the monthly income of Rs. 4,000/- assessed by Tribunal is also on the lower side and needs to be re-assessed. Therefore, having regard to the age, avocation and the year of accident, etc. I re-assess the monthly income of the appellant at Rs. 12,000/-. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for a couple of weeks. During the period of treatment, the appellant must have undergone lot of unsaid pain and agony. Having regard to the nature of injuries sustained, I presume that she should have taken bed rest and follow-up treatment at least for a period of three months. Further, during the period of treatment, she would have spent reasonable sum towards conveyance, nourishing food and attendant charges apartment from incidental and medical expenses. Therefore, having regard to the nature of injuries sustained, age, avocation and the nature and duration of treatment, disability assessed by Doctor, year of accident, etc., I award a sum of Rs. 1,50,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 10,000/- towards loss of amenities and Rs. 67,200/-towards disability; Rs. 40,000/- towards pain and sufferings as against Rs. 25,000/-; Rs. 36,000/- towards loss of income during treatment period, at the rate of Rs. 12,000/- per month for a period of three months as against Rs. 8,000/-; Rs. 50,000/- towards medical expenses including conveyance, nourishing food and attendant charges as against Rs. 30,000/- awarded by Tribunal and Rs. 10,000/- towards future medical expenses. Thus, the appellant in all, would be entitled to a total compensation of Rs. 2,86,000/-, with interest at 6% per annum as against Rs. 1,40,200/- awarded by Tribunal, and the break up is as follows:

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 16th September 2011, passed in MVC No. 7308/2010, by the 14th Additional Judge, Court of Small Causes, Motor Accident Claims Tribunal, Bangalore (SCCH-10), is hereby modified, awarding compensation of a sum of Rs. 2,86,000/-, with interest at 6% per annum, as against Rs. 1,40,200/-, awarded by Tribunal. There would be an enhancement of compensation of Rs. 1,45,800/- with 6% interest per annum.

The second respondent - Insurer is directed to deposit the enhanced compensation, with interest thereon at 6% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment and award.

On such deposit by the Insurer, 50% shall be deposited in the name of the appellant in Fixed Deposit, in any nationalized or scheduled Bank, for a period of ten years, renewable for another ten years, with liberty reserved to the appellant to withdraw the periodical interest.

Remaining 50% shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.