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Judgment
A.V. Chandrashekara, J.—Main appeal is filed by the claimants of a case bearing MVC No. 573/2007 claiming higher compensation than the one awarded by the tribunal in MVC No. 573/2007, which was pending on the file of MACT-VII at Bijapur. The connected appeal is filed by the Insurance Company on the ground that the death of injured Babu was not due to the injury sustained in the accident. Apart from this, the insurer has challenged the quantum of compensation awarded by the tribunal on the ground that the same is excessive.
The appellants in the main appeal are the wife, minor child and parents of the deceased, who was injured in a motor vehicle accident that occurred on 11.12.2005 at 10.30 a.m. on NH-13 at Kannal cross. He was stated to be proceeding on his motorcycle bearing No. KA-28/L-7771 towards his garden and when he reached a place near Kannal cross, a truck bearing No. HR-38/N-5777 came from the opposite direction, being driven in a rash and negligent manner and dashed against the motorcycle, as a result of which, he fell down and sustained severe injuries all over the body mainly on the head and neck. He was immediately shifted to Government Hospital, Bijapur, thereafter he was shifted to BNM Rural Ayurvedic Hospital at Bijapur for treatment of his head injury. Subsequently, he was shifted to Deenanath Mangeshakar Hospital at Pune for higher treatment of his head injury and was discharged from that hospital for the last time on 20.12.2006. He succumbed to the injuries on 12.01.2007. According to the claimants, there was complete nexus between the injuries sustained in the accident and consequential death. They had laid a claim for awarding compensation of Rs. 21,00,500/- under various heads. According to them, the accident took place solely due to the negligence of the truck.
The 1st respondent is the registered owner of the offending vehicle and 2nd respondent is the insurer of the said vehicle. The 1st respondent was placed exparte and 2nd respondent alone contested the claim denying the main averments and contested the petition strictly. According to the insurer, the deceased had contributed to the accident and that there was no nexus as to the death and injuries sustained in the accident. They have admitted the validity of the insurance policy relating to the vehicle in question as on the date of the accident. With these pleadings they had requested the tribunal for dismissal of the petition.
On the basis of the above pleadings, the following issues came to be framed:
Whether the petitioners prove that on 11.12.2005 at about 10.30 a.m. on Solapur NH-13 road near Kannal cross the road traffic accident took place due to the actionable negligence of the driver of the truck bearing registration No. HR-38/N-5777 by which deceased Babu Arjun Koulagi succumbed to the injuries?
Whether petitioners prove that they are entitled for compensation if so, what amount and from whom?
What order or award?
Ultimately, the claim petition came to be allowed on 06.07.2012 awarding compensation of Rs. 8,20,825/- with interest at 6% per annum from the date of filing of petition till realization. It is this judgment and award, which is called in question by the appellants/claimants as well as the insurer by filing a separate appeal.
Heard learned counsel for the parties and perused the entire records summoned by the tribunal.
PW. 1-Renuka is the wife of the deceased and mother of 2nd claimant. Prashant is examined as PW. 2. He is who treated the injured in BNM Rural Ayurvedic Hospital at Bijapur. Dr. Sachin is examined as PW. 3 who treated the injured in Deenanath Hospital at Pune. PW. 4-Dharmanna is an eyewitness to the incident. In all 26 exhibits have been get marked on behalf of the claimants and one document has been marked on behalf of the insurer vide Ex. R1 and no oral evidence have been marked on behalf of the insurer.
Admittedly, issue No. 1 has been answered in the affirmative holding that Babu sustained severe injuries in a motor vehicle accident involving his motorcycle and truck bearing No. HR-38/N-5777 near Kannal cross. The tribunal has further held that the subsequent death of Babu was due to the injuries sustained in the said accident. This aspect of the matter has been seriously contested by the insurer contending that no acceptable evidence is placed on record to substantiate the fact that the death of Babu was due to the gravity of injuries sustained by him in the accident.
Dr. Prashant who is treated the deceased initially at Bijapur is a competent doctor to speak about the injuries noticed by him. Deceased was admitted to BNM Rural Ayurvedic hospital at Bijapur and on his advice, he was shifted to Deenanath hospital at Pune. Dr. Sachin is an experienced ENT surgeon who treated the injured for longtime at Pune.
The medical records summoned from Regional Neuroscience Centre at Bijapur discloses that he had sustained injuries to the head as well as to throat and face. He was treated on various occasions at Bijapur. Later he was admitted to Deenanath hospital at Pune. Ex. C24 to C26 have been got marked through PW. 2 who treated him at Pune.
Dr. Prashant who is owning Health City Hospital at Bijapur has deposed that Babu was admitted in his hospital and was discharged on 26.01.2006 and again he was treated on 2.3.03.2006 as an inpatient. He has specifically deposed that the injured was conscious but was not able to speak and food was being given through pipe. He was treated as inpatient and was not able to take food by mouth because of trachea becoming narrow due to the impact to the injuries. He had undergone operation and to that effect he has been cross-examined at length. Nothing is called about to discredit the his deposition in so far as it relates to the surgery undergone by the deceased in the said hospital. The suggestion put by him that after 09.03.2006 that he was all right has been specifically denied.
Dr. Sachin treated the deceased in Deenanath hospital at Pune. He is examined by the Court Commissioner at Pune. He has specifically deposed that Babu was admitted in their hospital with a history of subglotic stenosis. Hence, surgery was done and discharged on 10.06.2006 with a clear advice to approach him for follow-up treatment. He was admitted on 15.06.2006 and was operated for cleaning air passage and discharged on 18.06.2006. He was again admitted on 15.12.2006 because he noticed some swelling in airway on the operated side. Hence, surgery was again done to reduce ocdema. All the medical case sheets in the said hospital relating to Babu have marked at Exs. C24 to C26.
During the cross-examination, Dr. Sachin has specifically deposed that all earlier medical records were perused by him. He has deposed that the patient was discharged on 20.12.2006. He was discharged, after trachaostomy by inserting food pipe. He has deposed that other doctors also assisted him while conducting the operation to Babu. Three surgeries were done at Pune and one at Bijapur. Those surgeries were done on sensitive parts. Though, the operations were done by the competent doctors, in view of the gravity of injuries, he developed complications and ultimately died on 12.01.2007.
Taking into consideration the depositions of the Dr. Prashant and Dr. Sachin and the available medical records, it can be definitely said that the death of Babu was due to the injuries sustained by him in the accident. Babu developed complications as he had undergone operations as many as four operations to his lungs.
Dr. Sachin has specifically deposed that he had advised the injured to come for follow-up treatment. In fact he had meticulously followed his advice. Thus, he had gone to his hospital for three times. There is no reason to disbelieve his deposition.
The tribunal has carefully considered the medical evidence placed on record and has come to the conclusion that the death of Babu was due to the effect of the injuries sustained by him in the accident.
Then question that arise for consideration before this Court is:
"Whether the quantum of compensation awarded in the present case is just and proper?"
A Division Bench of this Court in the case of K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, , has discussed about the role of MACT in granting just compensation in the cases of the personal injuries and death cases. Admittedly, the deceased Babu was not able to do any work right from the date of the accident. Sufficient amount has been spent towards his treatment and the tribunal has granted suitable compensation under the head "medical expenses". The tribunal has awarded in all a sum of Rs. 3,46,825/- under the head "medical expenses" and the same is supported by valid medical bills and prescriptions. This does not require any interference.
Taking into consideration conveyance charges spent by the family members in respect of his treatment, a sum of Rs. 40,000/- would be a reasonable amount and the same is awarded under the head "conveyance charges".
One of the family member had to look after him throughout i.e., from the date of the accident till his death. He was not in a position to move because of the injuries sustained by him and the operations undergone by him. Even if Rs. 75/- is taken as attendant charges per day, the monthly attendant charges would be Rs. 2,250/-. This monthly attendant charges of Rs. 2,250/- will have to be multiplied by 12 months and the total amount would be Rs. 27,000/- on the head "conveyance charges".
He required nutrition food because of injuries. A sum of Rs. 15,000/- is awarded under the heads "nutrition and diet"
A sum of Rs. 5,000/- each is awarded under the heads like "loss of estate", "loss of consortium" and "funeral expenses". The amount so awarded under these heads is grossly inadequate. Apart from this, under the head "loss of love and affection" no compensation is awarded as his parents lost him at a young age. He has left behind a small child aged about one year. Therefore, awarding in all a sum of Rs. 1,00,000/- under these conventional heads would meet the ends of justice and the same is awarded.
The tribunal has assessed the probable income of the deceased at Rs. 3,000/- per month. In the light of the absence of specific materials regarding exact income of the deceased, the same will have to be granted on the basis of broad preponderance of probabilities of law. Admittedly, the deceased was hardly aged about 30 years and he was hale and healthy and had a small baby. Ex. P17 is the certificate to show that he had passed ITI examination. Thus, he had good prospects in his future life in the matter of earning.
Taking into consideration that he was married and had small baby and his parents were dependent upon him, he could not have maintained the whole family with a sum of Rs. 3,000/- per month. Hence, it is useful to refer the decision of the Apex Court in the case of Chaturbhuj Pande and Others Vs. Collector, Raigarh, . What is held in the said decision is that when the evidence is hazy in regard to the assessment of compensation, the Judges will have to call in aid their experience of life and test the evidence on the basis of the broad preponderance of probabilities of law. Taking the totality of the family conditions of the deceased, it would be just and proper to assess his income at Rs. 5,000/- per month in the light of the deceased having passed ITI. If it is assessed of is 5,000/- per month, the annual income would be Rs. 60,000/-. In the light of four persons being dependent upon him, 1/4th will to be deducted. The annual loss of dependency would be Rs. 45,000/- per annum. The proper multiplier applicable would be 17 as the deceased was 30 years old as on the date of the accident. Thus, the total loss of dependency would be Rs. 7,65,000/- instead of Rs. 4,59,000/- as awarded by the tribunal. Thus, a sum of Rs. 7,65,000/- is to be awarded under the head "loss of dependency".
Thus, the appellants/claimants are entitled for total compensation of Rs. 12,93,825/-. Out of this, a sum of Rs. 8,20,825/- will have to be deducted as awarded by the tribunal. Thus, the appellants/claimants entitled for enhanced compensation of Rs. 4,73,000/-. They are entitled to interest 6% per annum thereon from the date of filing of petition till realization.
In view of the facts and circumstances of the case, enhancing the compensation by Rs. 4,73,000/- would meet the ends of justice. The total compensation of Rs. 12,93,825/- is the just and reasonable compensation.
ORDER
The appeal filed by the insurer is dismissed.
The appeal filed by the appellants/claimants is allowed in part enhancing compensation from Rs. 8,20,825/- to Rs. 12,93,825/-. Thereby, the appellants/claimants in the main appeal are entitled for enhanced compensation of Rs. 4,73,000/- with interest at 6% per annum thereon from the date of filing of petition till realization.
The enhanced compensation shall be apportioned on the basis of the apportionment already done by the tribunal.
The judgment and award passed by the tribunal stands modified.
There is no order as to costs.
The amount in deposit be transferred to the jurisdiction tribunal.