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Judgment
N.K. Patil, J. - Though this appeal is posted today for orders, with the consent of learned counsel appearing for both the parties, the same is taken up for Final Disposal.
This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 25-9-2012, passed in MVC No. 6598/2009, by the XXI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-XXIII), (hereinafter referred to as ''Tribunal'' for short).
The Tribunal, by its judgment and award has awarded a sum of Rs. 9,87,224/- under different heads with interest at 6% p.a., from the date of petition till deposit as against the claim of Rs. 25,00,000/-, on account of the injuries sustained by him in the road traffic accident.
In brief, the facts of the case are:
The appellant claims to be aged about 26 years at the time of the accident. He was hale and healthy prior to the accident, working as Assistant Operator at M.R.C. Transolution Pvt. Ltd., Nelamangala Branch. That on 6-9-2008 at 2.35 p.m. appellant was travelling from his company to Poweric factory on NH.4 Bangalore-Tumkur High way in his Bajaj CT-100 Bike bearing Reg. No. KA.02.EQ.7029 and he stopped his bike at Sondekoppa circle U Turn, Nelamangala Town and waiting for traffic clearance. At that time, the driver of BMTC bus bearing Reg. No. KA.01 .F.3876 which was coming from Nelamangala towards Sondekoppa in a rash and negligent manner at high speed, crossed the circle without observing traffic rules and dashed against the Canter vehicle bearing Reg. No. KA.51.A.3339 which was also being stopped beside his bike and thereafter dashed to his bike. Due to which, he fell down and sustained severe head injury. Immediately, he was shifted to Harsha Hospital, wherein, he was treated as inpatient for about two months and in coma for considerable period. He has also taken treatment at Gold star hospital.
It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. Doctor has assessed the disability at 30 to 32%. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents and against the owner and insurer of the lorry.
The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 9,87,224/- as compensation under different heads with interest at 6% p.a., form the date of petition till its deposit, directing respondent Nos. 1 and 2 to indemnify the award amount and dismissing the claim petition against respondent Nos. 3 and 4, owner and insurer of the lorry.
Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.
The submission of the learned counsel Sri. R. Kalyan, appearing for appellant, at the outset is that, the Tribunal has erred in assessing the disability at 30% to the whole body contrary to the evidence on record and therefore, it is liable to be modified. To substantiate the said submission, he quick to point out that, as per the evidence of the Doctor, upper and lower limbs of the appellant has become stiff and he has impaired present memory, his left hand and right leg have become almost inactive. Therefore, he submitted that permanent disability may be re-assessed at 50% to the whole body and reasonable amount may be awarded towards loss of future income. Further, he submits that the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness, towards loss of future earnings and what is awarded is inadequate and it requires to be enhanced reasonably. Further he submits that the Tribunal has erred in not awarding any compensation to-wards loss of marriage prospects and the same is liable to be awarded. To substantiate the said submission, he submitted that, on account of grievous injuries sustained by the appellant, he has taken treatment as inpatient for four months and out of which, for one month he was in coma, underwent lost of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, on the advice of the doctor, he has taken bed rest and follow up treatment and on account of permanent disability suffered by him, discomforts and unhappiness persists through out his life, it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier on the ground that, as per the evidence of the doctor, disability suffered by him will affect his marriage prospects. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation under different heads. Therefore, he submitted that the impugned judgment and award is liable to be modified.
Per contra, learned counsel Sr. A.M. Venkatesh, appearing for R2-insurer, inter-alia, contended and submitted that the compensation awarded bythe Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file. However, on seeing the health condition of the appellant who is present before the Court, he fairly submitted that reasonable compensation may be awarded towards injury, pain and sufferings, loss of amenities, towards loss of marriage prospects as permissible under law by modifying the impugned judgment and award passed by the Tribunal.
After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for respondent Nos. 1 and 2 and after perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:
Whether the compensation awarded by the Tribunal is just and reasonable?
The occurrence of the accident anti the resultant injuries sustained by the appellant as per Ex. P2-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 26 years at the time of accident, working as Assistant Operator at M.R.C. Transolution Pvt., Ltd., and drawing the salary of Rs. 6,941/- per month as per Ex. P9-salary certificate.
The Tribunal, after due consideration of the oral and documentary evidence available on file, has justified in awarding a sum of Rs. 4.74,671/- towards medical expenses and therefore, interference by this Court is not called for.
However, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and sufferings, towards conveyance, nourishing food and attendant charges, towards loss of income during treatment period, towards loss of amenities, discomforts and unhappiness, towards loss of future income and in not awarding any compensation towards loss of marriage prospects. Therefore, it needs to be awarded reasonably.
As rightly submitted by the learned counsel appearing for the appellant and after going through the evidence of the doctor, it emerges that, Doctor has opined that, appellant is facing difficulty to speak, his memory is impaired, stiffness in left elbow, right leg is weak and stiff and it has become restless. Further, he opined that, with all these difficulties, he cannot return to his work and assessed permanent disability towards whole body at 30 to 32%. Therefore, we re-assess the disability at 32% instead of 30% as assessed by the Tribunal.
After re-appreciation of the evidence of the doctor and other material available on file and after seeing the health condition of the appellant who is present before the Court along with his sister, it can be seen that, the permanent disability would affect his marriage prospects and he must have suffered mental pain and agony as he was in coma for one month and thereafter, he must have taken bed rest and follow up treatment at least for six months. During the said period, he must have undergone lots of pain and agony, spent considerable amount towards conveyance and other incidental expenses, during the said period, must, have incurred financial loss as he could not have attended his work regularly. On account of 32% permanent disability suffered by the appellant, discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity and it would affect his marriage prospects. The proper multiplier applicable is ''17'' as appellant is aged about 26 years as rightly adopted by the Tribunal and we accept the same. Taking all these aspects into consideration, we award a sum of Rs. 1,50,000/- towards injury, pain and suffering as against Rs. 30,000/-, Rs. 50,000/- towards conveyance, nourishing food and attendant charges as against Rs. 20,000/- Rs. 41.646/- towards loss of income during the treatment period at the rate of Rs. 6.941/- per month for six months, Rs. 4,53,108/- ( Rs. 6,941/- x 12 x 17 x 32%) towards loss of future earnings as against Rs. 4,24,789/-, Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 10,000/- and Rs. 10,00,000/- towards loss of marriage prospects.
In all, the appellant is entitled to the total compensation of Rs. 13,69,425/- instead of Rs. 9,87,224/- and the break-up is as follows:
Towards injury, pain and sufferings
Rs. 1,50,000/-
Towards medical expenses
Rs. 4,74,671/-
Towards conveyance, nourishing food and attendant charges
Rs. 50,000/-
Towards loss of income during the period of treatment
Rs. 41,646/-
Towards loss of amenities
Rs. 1,00,000/-
Towards loss of future earnings
Rs. 4,53,108/-
Towards loss of marriage prospects
Rs. 1,00,000/-
Total
Rs. 13,69,425/-
Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 25-9-2012, passed in MVC No. 6598/2009, by the XXI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bangalore (SCCH-XXJII), stands modified, awarding the compensation of Rs. 13,69,425/- instead of Rs. 9,87,224/- as awarded by the Tribunal. There would be an enhancement of Rs. 3,82,201/- with interest at 6% p.a., from the date of petition till its realisation excluding interest for the delayed period of 835 days in filing the appeal.
The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,82,201/- with interest at 6% p.a., from the date of petition till the date of realization, excluding interest for the delayed period of 835 days in filing the appeal, within three weeks from the date of receipt of a copy of this judgment and award.
Immediately on such deposit by the second respondent-Insurer, out of the enhanced compensation of Rs. 3,82,201/-, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank, in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to the appellant to withdraw the interest accrued on it periodically.
The remaining sum of Rs. 1,82,201/- with proportionate interest shall be released in favour of the appellant immediately.
Draw the award, accordingly.