Nagamma vs National Insurance Co. Ltd. and Others

N.K. Patil, J.—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 28/03/2013, passed in MVC No. 8070/2010, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), (hereinafter referred to as ''Tribunal'' for short).

The Tribunal, by its judgment and award has awarded a sum of Rs. 2,84,269/- under different heads with interest at 6% p.a. excluding interest on future medical expenses, from the date of petition till its realization as against the claim of Rs. 25,00,000/-, on account of the injuries sustained by the appellant in the road traffic accident.

In brief, the facts of the case are:

The appellant claims to be aged about 21 years at the time of the accident. She was hale and healthy prior to the accident, working as Coolie under Private Building Contractor and earning Rs. 6,000/- per month. That on 31.10.2010 at about 10.15 a.m. on Hoskote-Kadugodi main road infront of Sai Lakshmi Company, Bangalore, when the appellant was waiting for the bus in the bus stop, at that time, the driver of Tempo bearing Reg. No. KA.53.2568 came in a rash and negligent manner from Kadugodi side and dashed against the appellant and others and due to which, she fell down and sustained injuries. Immediately after the accident, appellant was shifted to Vydehi Hospital, Bangalore, for first aid and then she was shifted Chinmaya Mission Hospital, Bangalore, where she took treatment as inpatient, underwent three surgeries, implants were inserted and thereafter, on the advise of the Doctor, she has taken bed rest and follow up treatment.

It is the further case of the appellant that, she spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, she has suffered permanent disability of left leg component at 17.3% and right upper limb component at 24.34% and totally, she is having 41.6% of left leg and right upper limb. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 2,84,269/- as compensation under different heads with interest at 6% p.a. excluding interest on future medical expenses, from the date of petition till its realization and directed the Insurer to deposit the compensation amount.

Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal.

The submission of the learned counsel Sri H.B. Somapur, appearing for appellant, at the outset is 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 and what is awarded is inadequate and it requires to be enhanced reasonably. To substantiate the said submission, he submitted that, appellant was aged about 21 years working as Coolie and in the accident that occurred on 31.10.2010, she sustained grievous injuries, for that, she has taken treatment as inpatient for 14 days, underwent three surgeries and implants were inserted. She examined the Doctor, who has assessed the permanent disability of left leg component at 17.3% and right upper limb component at 24.34% and totally at 41.6% and she being a coolie by profession, she is not in a position to do her work as she was doing earlier and therefore, 100% permanent disability has to be taken so far as her avocation is concerned. Due to which, she has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for six months, discomforts and unhappiness persists through out her life, it would affect her earning capacity. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation under different heads. He further submits that the rate of interest awarded by the Tribunal is on the lower side and is liable to be enhanced atleast to 8 to 9% in the light of the judgments of the Apex Court and this Court since the accident has occurred in the year 2010. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel Smt. Manjula N. Tejaswi, appearing for insurer, inter-alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and the nature of injuries sustained by the appellant and therefore, it does not call for interference.

After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for Insurer 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 and the resultant injuries sustained by the appellant as per Ex. P6-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 21 years and working as Coolie. It is the case of the appellant that she was drawing the salary of Rs. 6,000/- per month. The Tribunal has assessed the income at Rs. 5,850/- per month after adding 30% to Rs. 4,500/- per month and we accept the same. On account of fracture of right olecranon process, fracture of left tibia and fracture distal right radius, appellant has taken treatment as inpatient for 14 days, underwent three surgeries and implants were inserted. During the said period, she might have undergone lot of pain and agony, she might have spent considerable amount towards medical expenses, conveyance and other incidental expenses, and as per the advise of the Doctor she might have taken bed rest and follow-up treatment atleast for six months, during the said period, she might have incurred financial loss as she could not have attended her work regularly. Further, it is the case of the appellant that, on account of grievous injuries sustained by her in the accident, she has suffered permanent disability. To prove the same, she examined the Doctor as PW 3, who after clinical examination has assessed the permanent disability of left leg component at 17.3% and right upper limb component at 24.34% and the Tribunal, after assigning valid reasons has assessed the disability at 14% to the whole body and we accept the same. Discomforts and unhappiness persists through out her life and it would affect her happiness in future life and also affects her earning capacity. As per the evidence of the Doctor, appellant has to undergo one more surgery for removal of implants and for that, she may require some reasonable amount towards medical and incidental expenses. Therefore, the appellant has to be compensated reasonably. The proper multiplier applicable is ''18'' as rightly adopted by the Tribunal since appellant was aged about 21 years as on the date of the accident and we accept the same. Taking all these aspects into consideration, we award a sum of Rs. 75,000/- towards injury, pain and suffering as against Rs. 25,000/-, Rs. 35,100/- towards loss of income during the treatment period at the rate of Rs. 5,850/- per month for six months as against Rs. 11,100/-, Rs. 20,000/- towards conveyance, nourishing food and attendant charges as against Rs. 2,800/- and Rs. 50,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 31,000/- awarded by the Tribunal.

The Tribunal, after due appreciation of the oral and documentary evidence available on file has justified in awarding a sum of Rs. 17,465/- towards medical expenses, Rs. 1,76,904/- towards loss of future earnings and Rs. 20,000/- towards future medical expenses and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 3,94,469/- instead of Rs. 2,84,269/- and the break-up is as follows:

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellant, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2010. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 8% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

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 28/03/2013, passed in MVC No. 8070/2010, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-9), stands modified, awarding the compensation of Rs. 3,94,469/- instead of Rs. 2,84,269/- as awarded by the Tribunal. There would be an enhancement of Rs. 1,10,200/- with interest at 8% p.a., from the date of petition till its realization.

The first respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,10,200/- with interest at 8% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,10,200/-, 50% 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 her to withdraw the interest accrued on it, periodically.

Remaining 50% with proportionate interest shall be released in favour of the appellant immediately.

Draw the award, accordingly.