Punith vs J.H. Patel 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 06/03/2012, passed in MVC No. 2188/2008, by the Additional Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hassan, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 7,13,100/- awarded by the Tribunal with interest at 6% p.a., from the date of petition till the date of deposit, as against the claim of Rs. 25,89,175/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

The appellant claims to be aged about 24 years at the time of the accident. He was hale and healthy prior to the accident and an Agriculturist by profession and earning Rs. 5,000/- per month. That on 4.1.2008 at about 1.15 p.m. petitioner was proceeding towards Hassan from Marenahally along with his friend Gurumurthy in Hero Honda motor bike bearing Reg. No. KA. 13. R. 5912 and when he came near Kuppally village, at that time, the driver of the Lorry bearing Reg. No. KA. 18. A. 1241 came from Hassan side in a rash and negligent manner and dashed against the motor bike of the appellant. Due to which, he fell down and sustained injuries. Immediately, he was shifted to S.S.M. Hospital, Hassan and then shifted to Sagar Apollo Hospital, Bangalore, where he took treatment as inpatient for 68 days on different dates, underwent surgery and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment.

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. Therefore, appellant has filed a claim petition before the Tribunal through his natural guardian, father, 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. 7,13,100/- as compensation under different heads with interest at 6% p.a., from the date of petition till the date of realization.

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in not assessing the income of the appellant and what is assessed is on the lower side and is liable to be reassessed, on the ground that, the accident has occurred in the year 2008 and agriculturist by profession aged about 24 years. Further he submits that the Tribunal has erred in assessing the permanent disability at 36% contrary to the evidence of the Doctor, who has assessed the disability at 76.66%. Therefore, he submitted that the percentage of disability assessed by the Doctor may be accepted. Further, he submits that on account of the injuries sustained by the appellant, he has taken treatment as inpatient for 68 days, on different occasions at different hospitals, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, he has taken bed rest and follow up treatment for more than six months, discomforts and unhappiness persists through out his life and it would affect his earning capacity as he was an agriculturist and now he is not in a position to do his work as he was doing earlier. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Therefore, he submitted that taking into consideration the nature of injuries, the percentage of disability and after re-appreciation of the oral and documentary evidence, the instant appeal may be allowed and the impugned judgment and award be modified by enhancing the compensation reasonably.

Per contra, learned counsel 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 therefore, it does not call for interference.

After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials 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 are not in dispute. It is the case of the appellant that, he was aged about 24 years, agriculturist by profession and on account of the grievous injuries sustained by him, he suffers from disability. The Tribunal has assessed the income of the appellant at Rs. 3,000/- per month which is on the lower side and it needs to be enhanced reasonably. Considering the age, occupation and the year of accident, we reassess the income of the appellant at Rs. 5,000/- per month to the meet the ends of justice.

As per Ex. P5 - Wound certificate, appellant has sustained three injuries viz., lacerated wound on left wrist which has sutured, left ear bleeding and diffuse axonal injury and out of which, injury Nos. 1 and 2 are simple in nature and injury No. 3 is grievous in nature. Appellant has also produced the wound certificate issued by Sagar Apollo Hospital, Bangalore, wherein the following injuries are mentioned viz., abrasion over right side face, laceration over left ear pinning, head injuries-cerebral oedema and laceration splenic. Out of which, injury Nos. 2, 3 and 4 are grievous in nature and injury No. 1 is simple in nature. To prove the same, appellant has examined one Dr. Muni Reddy, Surgeon, Sagar Apollo Hospital as PW3. PW3 has deposed that CT scan of the abdomen revealed evidence of splenic injury in the abdomen with blood in the abdominal cavity and deposed that he has got permanent physical disability to the extent of 11% to the whole body. Further, appellant has examined Dr. Anwesh Abhaykumar Saktpar as PW4. PW4 has deposed that CT scan showed defused cerebral edema with defuse axonal injury and opined that he has got physical disability to the extent of 76.66% in respect of neurobehavioral and cognitive disability. Taking into consideration the percentage of disability as assessed by the Doctors and the nature of injuries sustained by him, we re-assess the disability at 50% to the whole body to meet the ends of justice. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity.

Further, it emerges that, during the course of treatment, appellant might have undergone pam and agony, he might have spent considerable amount towards conveyance, nourishing food and attendant charges as he has taken treatment for 68 days in different hospitals on different occasions and he might have sustained financial loss, as he could not have attended his work regularly during the period of treatment and follow up treatment atleast for six months, the disability is permanent in nature. The appropriate multiplier applicable would be ''18'' as rightly adopted by the Tribunal since the appellant was aged about 24 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, pam and sufferings as against Rs. 60,000/-, Rs. 27,000/- towards loss of income during the period of treatment for six months at the rate of Rs. 4,500/- per month as against Rs. 12,000/-; Rs. 30,000/- towards conveyance, nourishing food and attendant charges as against Rs. 15,000/-, Rs. 50,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 30,000/- and Rs. 4,86,000/- Rs. 4,500 x 12 x 18 x 50%) towards loss of future earnings as against Rs. 2,33,300/-.

However, a sum of Rs. 3,52,400/- awarded by the Tribunal towards medical expenses is just and reasonable and after due appreciation of the medical bills produced by the appellant and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 10,20,400/- instead of Rs. 7,13,100/- and the break-up is as follows:

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 06/03/2012, passed in MVC No. 2188/2008, by the Additional Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hassan, stands modified, awarding the compensation of Rs. 10,20,400/- instead of Rs. 7,13,100/- as awarded by the Tribunal. There would be an enhancement of Rs. 3,07,300/- with interest at 6% p.a., from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,07,300/- with interest at 6% 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 and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 3,07,300/-, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 10 years and renewable by another 05 years, with liberty reserved to the natural guardian, father of the appellant to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 1,07,300/- with proportionate interest shall be released in favour of the appellant, through his natural guardian, father, immediately.

Draw the award, accordingly.