Narasegowda vs Shankar K. and Others

N.K. Patil, J—This appeal is filed by the claimant against the impugned judgment and award dated 01.07.2013 passed in MVC No. 6110/2011 on the file of the XI Additional Judge & MACT, Court of Small Causes (SCCH-12), Bangalore City (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 4,09,366/- with interest at 6% p.a., on account of the injuries suffered in a road traffic accident.

The brief facts of the case are:

The appellant was aged about 41 years as on the date of the accident. He was working as an Attender in Karnataka Cooperative Bank and earning Rs. 8,221/- p.m. He was hale and healthy prior to the accident. Be that as it may, that on 11.11.2011, at about 8.30 p.m., when the appellant along with another person was traveling on Bajaj Discover motorcycle bearing registration No. KA-05-HD-1267, by following traffic rules and regulations, from Narogehalli towards Bangalore, at that time, many vehicles going towards Kunigal from Bangalore, were in starting position along with the lights. Hence, the driver of the motorcycle was unable to control his vehicle and as a result, the rider of the motorcycle dashed the tank bund stones, thereby, the appellant fell down and sustained grievous injuries as under:

a. Goregules laceration of occipital region right with laceration of right ear pinna, with crushing of appear penile of pinna;

b. Laceration wound 4 x 3 c.m. over left knee.

c. Laceration 5 x 2 c.m. over left arm.

d. Cut lacerated wound 4 x 2 x 1 c.m. over scalp and as per the discharge summary the doctor opined that as follows

i. Type II open fracture left patella degloving injury of knee.

ii. Crush injury right ear and scalp with nasal bone fracture.

Out of which, injury Nos. 2 to 4 are simple in nature and injury Nos. d(i) and d(ii) are grievous in nature. He was treated as an inpatient in Government Hospital, Kunigal and for further treatment he was admitted to Hosmat and NIMHANS, Bangalore. Totally, he was inpatient for 11 days in the hospital on different occasions and has also undergone a surgery. He has examined the doctor - P.W. 2, who after clinical and radiological examination has assessed the disability to the left lower limb at 63% and whole body disability at 33%. The doctor has also stated that the appellant needs future treatment like excision of the left patella and reconstruction of the extensor mechanism to left knee, which may cost Rs. 80,000/-. He has also undergone plastic surgery. He has taken bed rest for a period of three months as per the advice of the doctor and has undergone discomforts, unhappiness and has to suffer permanent disability throughout his life. He has suffered mental pain and agony during the treatment period. He has spent huge amount towards conveyance, nourishing food and attendant charges and medical expenses. On account of the injuries sustained, the appellant was constrained to file a claim petition under Section 166 of the M.V. Act before the Tribunal seeking compensation of Rs. 25,00,000/- against the respondents. The Tribunal after assessing the oral and documentary evidence and other relevant material available on file allowed the claim petition in part, awarding compensation of Rs. 4,09,366/- with interest at 6% p.a., from the date of claim petition till the date of realisation. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented the instant appeal seeking enhancement contending that the compensation awarded by the Tribunal and the rate of interest is on the lower side.

We have heard the learned Counsel appearing for the appellant and learned Counsel appearing for the second respondent - Insurance Company.

Sri Lohitaswa Banakar, learned Counsel for the appellant submits that the Tribunal has erred in not awarding just and reasonable compensation towards loss of income during laid up period, loss of amenities, discomforts and unhappiness and future medical expenses. He also pointed out that the appellant suffered grievous and simple injuries and was admitted in the hospital for 11 days and undergone one surgery. The doctor has assessed the disability at 33% to the whole body and has stated that the appellant requires future medical treatment. He has spent reasonable amount towards conveyance, nourishing food and attendant charges and has taken up rest and follow up treatment. The appellant has suffered pain and sufferings and has to suffer unhappiness and discomforts throughout his life. He further submitted that the rate of interest at 6% p.a. awarded by the Tribunal is also on the lower side. As per the catena of judgments of the Apex Court and this Court, the rate of interest may be modified and at least interest at the rate of 9% to 10% p.a. may be awarded. Therefore, he prays that the claimant may be awarded just and reasonable compensation by modifying the impugned judgment and award passed by the tribunal.

Per contra, learned Counsel for the second respondent/Insurance Company inter alia submitted that the impugned judgment and award passed by the tribunal is after appreciating oral and documentary evidence on record and interference by this Court is uncalled for.

After critical evaluation of the oral and documentary evidence available on record, considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the only point that arises for our consideration is:

Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

The occurrence of the accident and the injuries sustained by the appellant are not in dispute. He was aged 41 years, working as an Attender in Karnataka Co-operative Bank and earning Rs. 8,221/- p.m. He has produced salary certificate at Ex. P. 9 and the same is accepted. He has undergone treatment for a period of 11 days as inpatient on different dates. The doctor has assessed the permanent disability at 33% to the whole body. It is the case of the appellant that he has spent huge sum towards medical expenses, conveyance, nourishing food and attendant charges. Having regard to the age, avocation and the year of the accident being 2011, we deem it fit to award Rs. 49,326/- (Rs. 8,221/- x 6 months) towards loss of income during laid up period, to meet the ends of justice.

The tribunal has rightly awarded compensation of Rs. 70,000/- towards pain and sufferings, Rs. 2,32,866/- towards medical expenses and Rs. 10,000/- towards conveyance, nourishment and attendant charges of the claimant and interference is uncalled for.

However, the tribunal has erred in awarding compensation of only of Rs. 50,000/- towards loss of future income and Rs. 10,000/- towards loss of amenities, discomforts and unhappiness in life and Rs. 20,000/- towards future medical expenses. The appellant was aged about 41 years. As per the evidence of the doctor, the appellant has sustained disability at 63% to the left lower limb and whole body disability at 21%. The Plastic Surgeon has evaluated the whole body permanent disability at 16%. Totally, the appellant has suffered whole body disability at 33%. The doctor has stated that the appellant requires future treatment of excision of the left patella and reconstruction of the extensor mechanism to left knee. He might have suffered pain and agony during treatment period and he has to undergo discomforts and unhappiness throughout her life. Having regard to the facts and circumstances discussed above, a sum of Rs. 1,50,000/- is awarded towards loss of amenities, discomforts and unhappiness in life and Rs. 1,00,000/- towards future medical expenses. The total compensation works out to Rs. 6,12,192/- as against Rs. 4,09,366/-, awarded by the Tribunal. There would be enhancement of compensation by Rs. 2,02,826/-.

As rightly pointed out by the learned Counsel for the appellant, the rate of interest at 6% p.a. awarded by the tribunal is on the lower side. As per catena of judgments rendered by the Apex Court and this Court, we deem it fit to award the interest at the rate of 8% p.a. on the enhanced compensation.

In the light of the facts and circumstances of the case, as stated above, the instant appeal filed by the appellant is allowed in part. The judgment and award dated 01.07.2013 passed in MVC No. 6110/2011 on the file of the XI Additional Judge & MACT, Court of Small Causes (SCCH-12), Bangalore City, is hereby modified. The break up is as follows:

The appellant is entitled for an additional compensation of Rs. 2,02,826/- with interest at 8% p.a. from the date of petition till the date of realization.

The Respondent No. 2 - Insurance Company is directed to deposit the enhanced compensation of Rs. 2,02,826/- together with interest at 8% p.a., within a period of three weeks from the date of receipt of copy of the judgment.

Out of the enhanced compensation of Rs. 2,02,826/-, a sum of Rs. 1,50,000/- with proportionate interest shall be invested in F.D. in the name of appellant, in any Nationalised or Scheduled or Grameena bank for a period of 5 years and renewable for another 5 years, with liberty to withdraw the interest periodically.

Remaining Rs. 52,826/- with proportionate interest shall be released in favour of the appellant immediately on deposit by R2-Insurance Company.

Office to draw the award, accordingly.