R.N. Shivakumar vs K.C. Rajesh and Others

P.D. Waingankar, J.—This appeal by the claimant is against the quantum of compensation awarded by the Tribunal by judgment and award dated 2/2/2008 in MVC No. 104/2004 on the file of Civil Judge (Sr.Dn.) Addl. MACT, Arsikere, whereby the Tribunal has awarded a total compensation of Rs. 1,88,000/- with 6% interest thereon from the date of petition till the date of realization.

On 20/4/2004 at about 5 p.m. the appellant-claimant was proceeding by walk. At that time a vehicle bearing registration No. KA-18-4282 came in a rash and negligent manner and dashed against the claimant and as a result he sustained grievous injuries for which he was initially treated as an in-patient for a period of 13 days in Hemavathi Hospital, Hassan, followed by Shekhar Hospital, Bangalore for 29 days. He spent about Rs. 2,00,000/- for his medical treatment. He lost his earnings during the period of treatment and despite the best treatment, he suffered disability.

Claiming compensation, the claimant filed the claim petition. It was opposed by the insurer of the vehicle involved in the accident. The claim petition came up for consideration before the Tribunal before whom the claimant was examined as PW-1 and one Dr. Roshan Kumar was examined as PW-2 and Exs. P1 to P12 were marked. No evidence was placed on record by the respondent - Insurance company, either oral or documentary.

The Tribunal, on appreciation of the oral and documentary evidence, awarded a sum of Rs. 15,000/-towards pain and suffering, Rs. 73,440/- towards loss of future income on account of disability, Rs. 48,300/-towards medical expenses, Rs. 10,000/- towards attendant charges, food and nourishment, Rs. 10,000/-towards loss of marriage prospects, Rs. 6,260/- towards loss of income during the period of treatment and Rs. 25,000/- towards loss of amenities. Thus the Tribunal awarded a total compensation of Rs. 1,88,000/-together with 6% interest thereon from the date of the petition till the realization, by the impugned judgment and award.

Dissatisfied with the quantum of compensation awarded by the Tribunal, this appeal is preferred by the claimant on the ground that compensation awarded by the Tribunal on all the heads is on the lower side and it requires to be enhanced. Further he has submitted that the income of the claimant taken at the rate of Rs. 80/- per day is also on the lower side and that the Tribunal has not awarded the total amount spent by him towards medical treatment and the amount awarded under the head disability, is also on the lower side. Hence the learned counsel sought to modify the award by enhancing compensation under all the heads.

Learned counsel for the insurance company, on the other hand, would submit that the Tribunal, on proper appreciation of both oral and documentary evidence, has rightly awarded compensation under all the heads and there is no merit in this appeal.

Having heard the submissions made by both the learned counsel and on perusal of the material on record, the point that would arise for my determination is,

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

It is borne out from the record that immediately after the accident, the claimant was taken to Primary Health Center, Jayachamarajendra Pura, Arsikere. Ex. P3 is the wound certificate issued by the said hospital which reveals that he was taken to the said hospital on 20/4/2004, the date of accident, and that the claimant had suffered the following injuries which were grievous in nature:

"(1) Crush injury to left foot and lacerated wound opening sole exposing bones and muscles;

(2) Suspected fracture of both bones of left leg."

Ex. P4 is the wound certificate issued by Shekhar Hospital where he was admitted on 3/5/2004 and treated as inpatient and was discharged on 10/6/2004. Ex. P4 reveals the following injuries which are grievous in nature:

"(1) Fracture both bones of left leg;

(2) Crush injury of left foot

(3) Post infective a cut inflammatory polyneuropathy"

Ex. P5 is the discharge summary issued by Shekhar Hospital. Thereafter he was also taken to NIMHANS as could be seen from Ex. P6.

The claimant has examined Dr. Roshan Kumar as PW-2. His evidence would go to show that he is an orthopedic surgeon working in Shekhar Hospital where the claimant was treated. His evidence would further go to show that the claimant had fracture of both bones of left leg, crush injury over left foot, injuries over the chest portion and adult respiratory distress syndrome.

Having regard to the nature of the injuries and the nature of treatment for a long duration, an amount of Rs. 15,000/- awarded by the Tribunal under the head pain and suffering is definitely on the lower side. Ends of justice shall be met if an amount of Rs. 40,000/- is awarded towards pain and suffering as against Rs. 15,000/- awarded by the Tribunal.

Further the claimant has placed on record medical bills amounting to Rs. 93,780/-. Apart from that the claimant also placed on record bills worth Rs. 47,965/-towards medical expenses for having purchased medicines. I have scrutinized all those bills which appears to be genuine bills. As such, I deem it fit to award a sum of Rs. 1,42,000/- towards medical expenses as against Rs. 48,300/- awarded by the Tribunal.

Further the amount awarded towards attendant charges is also on the lower side since he was treated as an inpatient for a prolonged period. He was in need of service of an attendant for a period of about 4 months and as such, a sum of Rs. 15,000/- would be just compensation as against Rs. 10,000/- awarded by the Tribunal towards attendant charges, food and nourishment.

The Tribunal has taken the income of the claimant at the rate of Rs. 80/- per day and awarded a sum of Rs. 6,260/- towards loss of income for a period of 3 months. The injuries suffered by the claimant were such that it must have taken, at the minimum, 6 months for him to come out of the bed and thereby he lost his earnings for a period of 6 months. Considering the age of the claimant, I deem it fit to take the income of the claimant at Rs. 3,000/- p.m. Hence, an amount of Rs. 18,000/- is awarded towards loss of income during the period of treatment as against Rs. 6,260/- awarded by the Tribunal.

The claimant was hardly aged about 26 years at the time of accident and was a bachelor. Inspite of best treatment, he has suffered disability which would definitely affect his marriage prospects. To compensate the same, a sum of Rs. 25,000/- is awarded as against Rs. 10,000/- awarded by the Tribunal under the said head. The amount of Rs. 25,000/- awarded towards loss of future amenities is just and reasonable.

Coming to the loss of future income on account of disability, the Tribunal, by taking the income of the claimant at the rate of Rs. 80/- per day and permanent disability to the whole body at 15% and the multiplier having regard to the age of the claimant, awarded a sum of Rs. 73,440/- towards loss of future income on account of disability. PW-2 has deposed that the claimant has suffered 40% disability of left leg and 25% to the whole body. But the Tribunal has taken 15% disability. The fact remains that he did suffer fracture of both bones of left leg, crush injury to left foot and thereby he has suffered the disability. Apart from that, he had also injuries over chest portion and there was adult respiratory distress syndrome. Taking note of all these injuries, PW-2 has deposed that he has suffered 25% disability to the whole body. On consideration of the facts and circumstances, it would be just and proper to take the disability at 20% to the whole body. In that case loss of future income would be Rs. 1,02,000/- (300 x 20 x 17) as against Rs. 73,440/-.

PW-2 has spoken in his evidence that the claimant has to undergo another surgery for removal of the implant for which he has to shell down an amount of Rs. 15,000/-. I have no reason to disbelieve the evidence of PW-2. In that regard as such the claimant is held to be entitled for a sum of Rs. 15,000/- towards future medical expenses.

Thus the appellant-claimant is entitled for the following compensation under the various heads:

Thus the appellant-claimant is entitled for enhanced compensation of Rs. 1,94,000/- over and above the compensation awarded by the Tribunal. Accordingly I pass the following:

"The appeal is allowed in part. The judgment and award dated 2/2/2008 in MVC No. 104/2004 on the file of Civil Judge (Sr.Dn.) and Addl. MACT, Arsikere, stands modified awarding enhanced compensation of Rs. 1,94,000/- over and above the compensation awarded by the Tribunal together with 6% interest for an amount of Rs. 1,79,000/- from the date of petition till the date of realisation.

The respondent - Insurance Company is directed to deposit the enhanced compensation together with interest within a period of three weeks from the date of receipt of a copy of this order. In the event of deposit, an amount of Rs. 1,00,000/- shall be invested in the name of the claimant for a period of 5 years in any nationalized bank of his choice and the balance amount with interest shall be released to him."