National Insurance Co. Ltd. and Others vs Sanjeev Kumar and Others

B. Sreenivas Gowda, J—MFA No. 30446/2009 is filed by the insurer of offending vehicle challenging the judgment and award passed by the Tribunal on the ground of liability. Whereas, MFA No. 30783/2009 is filed b y the claimant seeking enhancement of compensation awarded by the Tribunal.

As these two appeals are arising out of a common judgment and award of the Tribunal, with the consent of learned counsel appearing for the parties, they are heard together and disposed of finally by this common judgment.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 23.05.2003 due to rash and negligent driving of an auto-rickshaw bearing registration No. KA-39/2046, the points remain for consideration in these appeals are:

"1. Whether the finding of the Tribunal on liability directing the insurer of offending auto-rickshaw to pay compensation awarded by the Tribunal to the claimant with liberty to recover it from the owner is sustainable in law?

Whether the compensation of Rs. 5,44,000/- with interest at 6% per annum is just and reasonable or does it call for enhancement?"

Regarding liability Sri Sharanabasappa K. Babshetty, learned counsel appearing for the claimant submits in the very accident two persons including the claimant in this case had sustained injuries and two separate claim petitions were filed. The Tribunal by separate judgment allowed the claim petitions and awarded compensation and directed the insurer of offending auto-rickshaw to pay compensation with a liberty to recover the same from the owner of the offending auto-rickshaw.

The appeal filed by the insurer in MFA No. 30445/2009 challenging the judgment and award of the Tribunal passed in MVC No. 16/2004 arising out of the very same accident on the ground of liability was dismissed by this Court on 18.08.2014 confirming the finding of the Tribunal on liability. Learned counsel appearing for the insurer does not dispute the said fact. If that is so, finding of the Tribunal on liability is to be confirmed and appeal filed by the insurer is to be dismissed.

Regarding quantum:

As per Ex. P.6 and P. 55 medical certificates issued by Yashodha Super Specialty Hospital, Hyderabad claimant was admitted in the said hospital on 24.05.2003 and was discharged on 09.06.2003. It was diagnosed that he sustained wedge compression of L1 body. In Ex. P.56 - discharge summary of Yashodha Hospital, Hyderabad it is mentioned that he was operated on 24.05.2003. The compensation awarded by the Tribunal is re-determined as under;

Considering the nature of injuries sustained by the claimant, a sum of Rs. 1,50,000/- is awarded towards pain and suffering.

As a sum of Rs. 1,18,375/- awarded by the Tribunal towards medical expenses as per the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head.

He was treated as inpatient for about 75 days at Yashodha Super Specialty Hospital, Hyderabad. Considering the duration of treatment, a sum of Rs. 40,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs. 30,800/- awarded by the Tribunal.

Considering nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness that he has to suffer in his future life, a sum of Rs. 1,50,000/- is awarded towards loss of amenities.

Regarding awarding of compensation towards loss of future income, the learned counsel for the claimant submits, in view of wedge compression of L1 sustained by the claimant in the accident, his lower limbs are immobilized and he is confined to a wheel chair and he has no sensation below the waist level and even to attend nature calls and he is put on catheter. Therefore the Tribunal has rightly taken the disability at 100% while computing loss of future income but it has committed an error in deducting 1/3rd of it towards personal expenses of the claimant and therefore he prays for awarding compensation towards loss of future income by taking reasonable income with 100% functional disability as has been done by the Tribunal without deducting any sum towards personal expenses.

Learned Counsel appearing for the insurer opposed for awarding loss of future income by considering the functional disability at 100%.

Wedge compression of L1 sustained by the claimant in the accident is not in dispute. It is also not in dispute that the Tribunal has considered the functional disability at 100%. The grievance of the claimant in the appeal is income of the claimant taken by the Tribunal at Rs. 3,000/- per month is on the lower side and deduction of 1/3rd of the said income by the Tribunal towards personal expenses while computing loss of future income is not proper. Claimant was kept present before the Court with the help of a wheel chair and he was fixed with catheter for urination. His condition was seen by the Court as well as by the learned Counsel appearing for the insurer. He was also asked to be examined by the Physician working in the High Court Dispensary, who after examining the claimant has opined that, it is a case of paraplegia and claimant does not have sensation in his lower limbs and he has also developed bedsores. Considering this, the Tribunal was justified in computing loss of future income by considering functional disability at 100%. But it has committed an error in deducting 1/3rd of the income of the claimant towards his personal expenses while computing loss of future income, which is not proper.

The claimant claims to have been earning Rs. 15,000/- per month by doing business in Kirana and has produced licence at Ex. P.72 and receipts produced at Ex. P.73 to 101 to show that he used to purchase Kirana from different traders and agencies. Ex. P.72 would show he was possessing licence to carry on business in Kirana. Ex. P.73 to P. 101 would show that he used to purchase provision from different traders and agencies. No Income-Tax returns were produced to show how much income he was earning by doing Kirana business. Therefore, considering his age as 27 years, year of accident as 2003 and avocation as Kirana business, his income could be assessed at Rs. 3,500/- per month. The multiplier applicable to his age group is 17. If so, loss of future income works out to Rs. 7,14,000/- (Rs. 3,500/- X 12 X 17) and it is awarded as against Rs. 3,84,000/- awarded by the Tribunal.

In view of awarding loss of future income by considering functional disability at 100%, awarding compensation towards loss of income during laid up period does not arise.

Claimant is put on catheter, which is required to be changed frequently. Therefore, a sum of Rs. 1,00,000/- is awarded towards future medical and attendant charges.

Thus, he is entitled for the following compensation:

Hence, the following:

"ORDER

MFA No. 30446/2009 filed by the Insurance Company is dismissed confirming the finding of the Tribunal on liability.

MFA No. 30783/2009 filed by the claimant is allowed in part. Claimant is entitled for an additional compensation of Rs. 7,28,375/- with interest at 6% per annum from the date of petition till the date of realization excluding interest on Rs. 1,00,000/- awarded towards future medical expenses.

Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From the additional compensation amount to be deposited by the Insurance company, a sum of Rs. 1,28,375/- is ordered to be released in favour of the claimant and remaining amount of Rs. 6,00,000/- with interest is to be invested in Fixed Deposit in the name of claimant in any Nationalized Bank/Scheduled Bank/Grameena Bank for a period of ten years with a right of option for the claimant to withdraw interest periodically.

The Tribunal while releasing the remaining amount is also directed to issue FD slip in favour of the claimant, so that he can withdraw the FD amount on maturity and the Bank in which the FD will be invested is also directed to release FD on maturity without insisting for further order from the Tribunal.

Draw up the award accordingly.

No order as to costs."