P. Radhakrishna Shetty vs The Divisional Controller, Karnataka State Road Transport Corporation

N.K. Patil, J—This appeal is filed by the claimant against the impugned common judgment and award dated 28.2.2011 passed in MVC No. 1684/2007 on the file of the Member, MACT-IV & III Addl. District Judge, D.K., Mangalore, (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 3,92,755/- with interest at 6% p.a. from the date of petition till the date of realisation, on account of the grievous injuries sustained in the road traffic accident.

The brief facts of the case are:

"The appellant was aged about 26 years and hale and healthy prior to the accident. He was working as a driver of a tanker under Kumar Agencies, Mannagudde, Mangaluru. Be that as it may, that on 22.05.2007 at about 05.45 p.m., while he was proceeding in a motorcycle bearing registration No. CNX 4375 as a pillion rider near Kaje in a village Kedhambadi in Puttur Taluk, at that time, a driver of the KSRTC Bus bearing registration No. KA-19F-1851 came in high speed in a rash and negligent manner from the opposite direction and dashed against the motorcycle. Due to the impact, the appellant fell down and sustained fracture of right femur and right tibia and other injuries. Immediately he was shifted to Adarsh Hospital, Puttur and after first aid, he was shifted to City Hospital, Mangaluru and in the said hospital he took treatment totally for a period of 57 days as inpatient till 18.7.2007 and also undergone surgeries."

It is the case of the appellant that there is an amputation of the right leg above the knee and he cannot work as a driver of heavy vehicle. He has also examined Dr. Sudhakar Shetty � P.W. 3, who inturn after periodical examination assessed the disability to the extent of 75% to the right leg. On account of the injuries sustained in the accident, he has spent huge amount towards conveyance, nourishing food and attendant charges and medical expenses. He has examined the doctor � P.W. 3, who has stated that the appellant is suffering from permanent functional disability at 75% to the right leg. 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 in a sum of Rs. 25,00,000/- against the respondent. He has examined himself as P.W. 1 and examined P.W. 2 - Vishwanatha Bhandary and also P.W. 3 - Dr. Sudhakar Shetty and placed reliance on Exs. P1 to P28.

The Tribunal after assessing the oral and documentary evidence and other relevant material available on the file allowed the claim petition in part awarding compensation of Rs. 3,92,755/- with interest at 6% 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 is inadequate.

We have heard Sri Pundikai Ishwara Bhat, learned Counsel appearing for the appellant and Sri K.N. Dayalu, learned Counsel appearing for the respondent -Corporation for considerable length of time.

Learned Counsel for the appellant submits that the Tribunal has committed an error in taking the income of the appellant as Rs. 3,600/- per month. The appellant was working as a driver of a tanker under Kumar Agencies, Mannagudde, Mangaluru and produced the Salary Certificate as per Ex. P11. It indicates that the appellant was receiving salary of Rs. 10,000/- per month. He also submitted that the doctor who treated the appellant has opined that the appellant has 75% permanent functional disability and he cannot drive the heavy vehicle as he was driving prior to the accident. Therefore, taking these aspects into consideration, the income of the appellant may be reasonably fixed at least at Rs. 9,000/- per month. Further submitted that the appellant was admitted as inpatient for a period of 57 days in the hospital and also underwent one surgery. During that period he suffered physical and mental pain and agony. The Tribunal has also not awarded reasonable compensation towards pain and sufferings, conveyance, nourishing food and attendant charges and no compensation is awarded towards loss of income during laid up period. He has to suffer future amenities, undergo discomforts and unhappiness throughout his life. He has taken follow up treatment and bed rest for more than 6 months. These aspects have not been looked into nor considered by the Tribunal while awarding compensation. Therefore, he prays to modify the impugned judgment and award, by awarding just and reasonable compensation.

Per contra, learned Counsel for the Corporation inter alia submitted that the impugned common judgment and award passed by the Tribunal is after appreciating the oral and documentary evidence on record. The compensation awarded is proportionate to the injuries suffered by the appellant, and hence, interference by this Court is not called for.

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

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

After careful perusal of the impugned judgment and award passed by the Tribunal, what emerges is that, the occurrence of the accident and the injuries sustained by the appellant are not in dispute. It is also not disputed that the appellant was aged about 26 years, hale and healthy prior to the accident and working as a driver of a tanker under Kumar Agencies, Mannagudde, Mangaluru. P.W. 3 - the doctor who examined the appellant has noticed that symphysis pubis was in position with two plates and screw intact and at the time of examination, he complained of pain in the symphysis pubic while walking and that the mid thigh amputation (r) with healthy wound. He was admitted for a period of 57 days in the hospital as inpatient on different dates and also undergone a surgery and suffered mental pain and agony during the treatment period. He might have taken bed rest and follow up treatment for a period of more than six months as per the advice of the doctor. Taking the age, avocation and the year of accident, we can safely re-assess the income at Rs. 6,500/- p.m. Accordingly, we deem it fit to award Rs. 1,50,000/- towards pain and sufferings as against Rs. 75,000/- awarded by the Tribunal.

The Tribunal has erred in not awarding reasonable compensation towards loss of amenities, discomforts and unhappiness in life. The appellant was aged about 26 years and he has to undergo discomforts and unhappiness throughout his life. He is a Driver and the disability stated in the wound certificate is permanent in nature and it cannot be cured in future. It is not possible for the appellant to continue his work as he was doing earlier. Therefore, we award Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 15,000/- a sum of Rs. 20,000/- towards Conveyance, Nourishing food and Attendant Charges as against Rs. 7,500/- and a sum of Rs. 1,50,000/- towards future medical and incidental expenses as against Rs. 15,000/- awarded by the Tribunal.

Further, Tribunal has erred in not awarding just and reasonable compensation towards loss of future income. The doctor has assessed the disability at 75% to the right leg and the Tribunal has assessed the whole body disability at 1/3rd of 75% i.e. 25%. Having regard to the facts and circumstances of the case and the nature of injuries, we re-assess the disability at 60% to the whole body. The age of the appellant was 26 years and by adopting the appropriate multiplier of ''17'' for his age, the loss of future income comes to Rs. 7,95,600/- (Rs. 6,500/- x 12 x 17 x 60/100) towards loss of future income as against Rs. 1,83,600/- awarded by the Tribunal.

The Tribunal has awarded just and reasonable compensation of Rs. 96,000/- towards medical expenses and does not call for interference.

No compensation is awarded towards loss of income during laid up period. Therefore, we award a sum of Rs. 39,000/- (Rs. 6,500/- x 6 months) under this head.

The appellant is entitled for a total compensation of Rs. 13,50,600/-. The break up of the compensation is as under:--

The enhancement amount comes to Rs. 9,57,845/- with interest at 6% p.a. from the date of petition till the date of realization.

Having regard to the facts and circumstances of the case, the appeal is allowed in part. The impugned common judgment and award dated 28.2.2011 passed in MVC No. 1684/2007 on the file of the Member, MACT-IV & III Addl. District Judge, D.K., Mangaluru, is hereby modified. There will be an enhancement of Rs. 9,57,845/- with interest at 6% p.a. from the date of petition till the date of realization.

Respondent - Corporation is directed to deposit the enhanced compensation amount of Rs. 9,57,845/- with interest at 6% p.a. within a period of three weeks from the date of receipt of copy of the judgment.

Out of the enhanced compensation, a sum of Rs. 8,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank or Grameena bank, in the name of appellant for a period of ten years and renewable for another ten years, with liberty to withdraw the periodical interest accrued on it.

Remaining Rs. 1,57,845/- with proportionate interest shall be released in favour of the appellant immediately on deposit of the amount by Respondent - Corporation.

Office to draw the award, accordingly.