Rathnamma vs The Managing Director, KSRTC

N.K. Patil, J—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 21/10/2014, passed in MVC No. 4219/2013, by the Judge, Court of Small Causes and XXVI ACMM, Motor Accident Claims Tribunal, Bangalore (SCCH-09), (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 5,01,000/- awarded by the Tribunal with interest at 6% p.a., from the date of petition till its realization, as against the claim of Rs. 25,00,000/-, on account of the injuries sustained by her in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellant claims to be aged about 40 years at the time of the accident. She was hale and healthy prior to the accident, working in a Printing Press at Rajajinagar and earning Rs. 10,000/-per month. That on 9.6.2013 at about 5.15 p.m. at Thippasandra village near Lakkaiah''s land, appellant was going as a pillion rider in the motorcycle bearing Reg. No. KA.41.W.7234, at that time, the driver of the KSRTC bus bearing Reg. No. KA.42.F.031 came in a rash and negligent manner and dashed to the motorcycle. Due to which, appellant fell down and sustained grievous injuries. Immediately, she was shifted to M.S. Ramaiah Hospital, where she took treatment as inpatient for 9 days, underwent surgery and amputation of right leg above knee on account of crush injury sustained in the accident was done and thereafter, on the advise of the Doctor, she has taken bed rest and follow up treatment."

It is the further case of the appellant that, she spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, she has suffered permanent disability. The Doctor has assessed the physical disability at 85% to right lower limb as her right leg was amputated above knee and at 42.5% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal 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. 5,01,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till its 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 respondent-Corporation.

The submission of the learned counsel Sri. N.R. Rangegowda, appearing for appellant, at the outset is that, the Tribunal has erred in not assessing reasonable income of the appellant and what is assessed is on the lower side and is liable to be re-assessed, on the ground that, appellant was aged about 40 years, working in a Printing Press at Rajajinagar and earning Rs. 10,000/- per month. Further he submits that, appellant has undergone amputation of her right leg above knee on account of crush injury sustained in the accident. Further, he submits that in the light of the judgment of the Apex Court in the case of Sanjay Kumar Vs. Ashok Kumar and Another, (2014) 1 ACC 372 : (2014) ACJ 653 : (2014) AIRSCW 1236 : (2014) 3 JT 237 : (2014) 1 SCALE 584 : (2014) 5 SCC 330 , the permanent disability has to be re-assessed at 70% on account of amputation of right leg above knee instead of 35% as assessed by the Tribunal. Further, he submits that the compensation awarded by the Tribunal under all the heads is inadequate and is liable to be enhanced reasonably, on the ground that, on account of the injuries sustained by the appellant, she has taken treatment as inpatient for 9 days, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, she might have taken bed rest and follow up treatment for more than six months, discomforts and unhappiness persists through out her life and it would affect her earning capacity as she is not in a position to do her work as she was doing earlier and she requires some amount towards future medical expenses for purchase of artificial limb including incidental expenses. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Further, he submits that the rate of interest awarded by the Tribunal at 6% p.a., is on the lower side and is liable to be enhanced since the accident is of the year 2013. Therefore, he has submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for Corporation, 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. However, after going through the judgment of the Apex Court in Sanjay Kumar''s case (as stated supra) he fairly submitted that the same may be considered and appropriate orders may be passed in accordance with law.

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 as per Ex. P2-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 40 years, working in a Printing press. On account of the grievous injuries sustained by her in the accident, her right leg was amputated above knee, due to which, she is not in a position to do her work and she suffers permanent disability. Further, the Tribunal has assessed the income of the appellant at Rs. 5,000/- per month which is on the lower side. Having regard to the age, occupation and the year of accident, we re-assess the income of the appellant at Rs. 7,000/- per month to meet the ends of justice. As per the evidence of PW2-Doctor, on account of amputation of right leg of the appellant above knee due to crush injury sustained by her in the accident, she suffers from permanent physical disability at 85% to the right lower limb and at 42.5% to the whole body. But the Tribunal has assessed the disability at 35% to the whole body which is on the lower side. Having regard to the nature of injuries sustained by the appellant as there is an amputation of right leg above knee and in the light of the judgment of the Apex Court in Sanjay Kumar''s case (stated supra), we re-assess the permanent disability to the whole body at 70% instead of 35% assessed by the Tribunal to meet the ends of justice. Discomforts and unhappiness persists through out her life and it would affect her happiness in future life and also affects her earning capacity.

Further, it emerges that, during the course of treatment, appellant might have undergone pain and agony, she would have sustained financial loss, as she could not have attended her work regularly and the disability is permanent in nature and as there was an amputation of right leg above knee, she has to replace the artificial limb once in three years and for that, she may require some amount including incidental expenses. The proper multiplier applicable would be ''15'' as rightly adopted by the Tribunal since the appellant was aged about 40 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. 1,50,000/- towards injury, pain and suffering instead of Rs. 40,000/-, Rs. 42,000/- towards loss of income during the period of treatment for six months at the rate of Rs. 7,000/- per month instead of Rs. 20,000/-; Rs. 10,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 4,000/-, Rs. 1,00,000/-towards loss of amenities, discomforts and unhappiness instead of Rs. 25,000/-, Rs. 8,82,000/- ( Rs. 7,000 x 12 x 15 x 70%) towards loss of future earnings instead of Rs. 3,15,000/-, Rs. 1,00,000/- towards future medical expenses including purchase of artificial limb.

However, a sum of Rs. 67,000/- 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. 13,51,000/- instead of Rs. 5,01,000/- and the break-up is as follows:

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellants, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 6% awarded by the Tribunal.

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 21/10/2014, passed in MVC No. 4219/2013, by the Judge, Court of Small Causes and XXVI ACMM and Motor Accident Claims Tribunal, Bangalore (SCCH-09), stands modified, awarding the compensation of Rs. 13,51,000/- instead of Rs. 5,01,000/-. There would be an enhancement of Rs. 8,50,000/- with interest at 9% p.a., from the date of petition till its realization.

The respondent-Corporation is directed to deposit the enhanced compensation of Rs. 8,50,000/- with interest at 9% 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. 8,50,000/-, a sum of Rs. 6,00,000/- 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 10 years, with liberty reserved to her to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 2,50,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.