N.S. Vijayakumar vs The Medical Officer General Hospital Chikkanayakanahalli and Others

N.K. Patil, J.—This appeal by the claimant is arising out of the impugned judgment and award dated 26th November 2012 passed in MVC No. 144/2011 on the file of the Presiding Officer, FTC-I, Additional MACT, Tumkur (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 7,27,000/- with interest at 6% p.a., on Rs. 7,07,000/- from the date of judgment till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road traffic accident.

It is the case of the appellant that, he was aged about 30 years as on the date of the accident and hale and healthy prior to the accident. He had passed ITI course and earning Rs. 10,000/- p.m. Be that as it may, on 6.11.2010 he met with an accident, when he was riding a motor cycle bearing registration No. KA.44/H.359 along with his friend one Mahesh. While they were proceeding towards C.N. Halli from Tiptur road at about 11.15 p.m., when they reached near Kedigehalli, at that time, an ambulance bearing Registration No. KA-06-G 248 came in a rash and negligent manner and hit the appellant''s vehicle causing the accident. Due to the impact, he fell down and sustained the following injuries:

"1. Patient unconscious due to mild head injury -report from Tirumala Hospital, Bangalore - diffuse asconal injury.

CLW measuring 2 x 0.5 over right eye i.e., supra orbital ridge.

Right ear pinna missing

Swelling and deformation present over right thigh, right shaft femur mid/3.

CLW measuring 2x6 cms present between right index & middle finger # Promial phalynx middle finger # middle phalynx index finger.

Swelling and tenderness over right clavicle & swelling and tenderness over right wrist joint - report shows right clavicle, distal end of radius and ulna."

On account of injuries sustained, the appellant underwent treatment for a period of 35 days in the hospital and undergone surgery and examined the doctors as PW2 to PW4. After clinical and radiological examination, the doctors assessed the permanent disability towards lower limb at 29% and towards right hand at 18% and permanent disability at 20% to the whole body. It is further case of the appellant that he has spent huge amount towards treatment, conveyance and he suffered mental pain and agony during treatment period and has to suffer discomfort through out his life. Therefore, taking all these aspects, he filed a claim petition under Section 166 of MV Act before the Tribunal 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 appreciating the oral and documentary evidence has allowed the said claim petition in part and awarded a sum of Rs. 7,27,000/- as compensation under different heads with interest at 6% p.a., on Rs. 7,07,000/- from the date of judgment till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed the appeal seeking enhancement of compensation.

We have heard the learned counsel appearing for the appellant and the learned Government Pleader appearing for the 2nd respondent/insurer.

Learned counsel appearing for the appellant submits that, the Tribunal has erred in not assessing the reasonable income of the appellant, as he was aged about 30 years, passed ITI and getting income of Rs. 10,000/- p.m. The appellant underwent treatment for a period of 35 days. The doctor assessed the functional disability towards lower limb at 29% and towards right hand at 18% and whole body disability was assessed at 20%. Further, he submits that income assessed by the Tribunal be reassessed and reasonable compensation may be awarded under all different heads by modifying the impugned judgment and award passed by the Tribunal.

Per contra, learned Government Pleader inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is after considering the oral and documentary evidence. He further submits that the appellant has not produced any documents to show that he has passed ITI course and also the income. Therefore, the Tribunal presumed that if he was a coolie, then he could have earned an income of Rs. 3,000/- p.m. The same is just and proper and the Tribunal has also awarded compensation towards future medical expenses and therefore, interference by this Court is not called for.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:

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

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that the appellant was aged about 30 years as on the date of accident and hale and healthy. It is also not in dispute that he has also examined three doctors. Having regard to the nature of injuries and evidence of the doctors, the Tribunal assessed the permanent disability at 20% to the whole body. The same is accepted. Considering all these aspects, we can safely re-assess the income of the appellant at Rs. 5,500/- p.m., to meet the ends of justice. Due to the injuries sustained by the appellant, he has to be compensated for loss of income during laid up period. He has to endure the said difficulty through out his life. Thus we are of the view that the appellant has made out a case for enhancement of reasonable compensation under different heads. Taking into consideration all these aspects, we deem it fit to award Rs. 66,000/- (Rs. 5,500 x 12) as against Rs. 36,000/- towards loss of income during laid up period, Rs. 50,000/- as against Rs. 30,000/- towards loss of amenities and Rs. 2,11,200/- as against Rs. 1,16,000/- towards loss of future income due to disability awarded by the Tribunal. For the age of the appellant, the proper multiplier applicable is 16. However, a sum of Rs. 4,50,000/- awarded towards medical expenses, Rs. 75,000/- awarded towards pain and suffering and Rs. 20,000/- awarded towards future medical expenses is just and proper and does not call for interference by this Court.

The accident is of the year 2010. Therefore, in the light of the judgment of the Hon''ble Apex Court and this Court, we award interest at the rate of 8% p.a. on the enhanced compensation.

Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award dated 26th November 2012 passed by the Tribunal in MVC No. 144/2011 is hereby modified. The total compensation payable comes to Rs. 8,72,200/- with interest at the rate of 8% per annum on the enhanced sum as against Rs. 7,27,000/- and the breakup is as follows:

Enhanced compensation comes to Rs. 1,45,200/-. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,45,200/- with interest at the rate of 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment and award.

Rs. 1,45,200/- with interest shall be released in favour of the appellant immediately, on deposit by the Insurer.

Draw the award, accordingly.