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Judgment
N.K. Patil, J—These two appeals respectively by the insurer and injured claimant are directed against the impugned judgment and award dated 13th December 2013 passed in MVC No. 5214/2011 on the file of the VIII Addl. Small Causes Judge & XXXIII ACMM Member-MACT, Bengaluru (SCCH-5) (hereinafter referred to as ''Tribunal'' for short).
By its judgment and award, the Tribunal has awarded a sum of Rs. 38,18,000/- with interest at 8% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by claimant in the road traffic accident.
It is the case of the insurer that the quantum of compensation awarded by the Tribunal is disproportionate and it requires re-assessment fixing the contributory negligence on the part of the claimant and the impugned judgment and award passed by the Tribunal is liable to be modified. It is the case of the claimant that the quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement. Hence, these two appeals, seeking appropriate reliefs as stated supra.
It is the case of the claimant that, he was aged about 25 years as on the date of accident, hale and healthy and was a Doctor and student of Higher Education (MD) at Yoga and nature cure hospital, Shanthivana Trust, Dharmasthala and earning Rs. 15,000/- per month. On 22.04.2011 at about 5.30 p.m the claimant was riding his motor cycle bearing registration No. KA.7EC.9136 on Dharmasthala-Ujire road, slowly and cautiously, near Nethravathi river. At that time, a lorry bearing registration No. KA.14/A 2742 by its driver came in a rash and negligent manner and dashed against the motor cycle of claimant and caused accident. As a result of this, the claimant fell down and sustained multiple injuries. He was shifted to City hospital, Mangalore, where he was diagnosed for crush injury to right leg, fracture of right clavicle comminuted fracture of right proximal humerus, right knee posterior dislocation with chip and Popliteal artery injury rhabdomyolysis and pre rental ARF concussive head injury. He was treated conservatively. Right leg of injured above knee was amputated on 30.4.2011. He was discharged with advice of follow-up treatment. Claimant was again admitted to SSIMS hospital, Davanagere on 23.5.2011 where he under went a surgery and also internal fixation and discharged on 7.6.2011. He was in-patient for 31 days in hospital. Due to the accidental injuries and physical disability, it is not possible for him to carry on his profession as before. The doctors have advised the claimant to take complete bed rest. The claimant is taking follow up treatment. The doctor has assessed disability so far as future loss of income at 100% and 85% permanent disability. As per PW4 Dr. S. Rajanna, Orthopaedic Surgeon of Bowring and Lady Curzon Hospital, Bangalore, he found the following physical impairments:--
"Pain in right shoulder, stiffness and weakness of right upper limb, pain in right thigh, recurrent discharging wound from amputed stump of right thigh.
On examination, found the following disability:
Patient walk with help of auxiliary crutches
Above knee amputation of right lower limb, stump length 36 cms.
Puckered scar over amputed stump.
Muscle power around right hip is grade IV against grade V.
Operated scar on anterior aspect of right clavicle and right arm.
Limitation of right shoulder movements by 60%
Limitation of right elbow movements by 20%.
Muscle power around right elbow is grade IV against grade V.
Check X-ray No. 23081 dt: 1.7.2013 shows old united fracture mid 1/3rd right clavicle and neck of right humures with implants fixation insitu. Non visualization of distal shaft right femur with soft tissue covering noted post evaluation.
He is advised active right shoulder, elbow and hip exercises. Use of above; knee prosthesis of right lower limb needs to undergo surgery for removal of implants.
Due to the above mentioned disability, he cannot stand without support, cannot walk on slope, needs assistance to move from one place to other place, cannot tie dhoti, cannot lift over head objects, difficulty to eat in Indian style, combing is not possible, buttoning is difficult."
Further after medical and radiological examination and after referring to various guidelines including the one issued by the Social Justice and Empowerment 2007, the doctor is of the opinion that respondent/claimant is having 80% disability to right lower limb and 50% to right upper limb and 85.5% to the whole body. Further, the case of the claimant is that, he has spent huge amount for conveyance, nourishing food and attendant charges. The injury sustained by him is permanent in nature and he has to suffer the same through out his life. He is not in a position to continue his profession as before. He requires one assistant to carry on his day to day activities. Taking all these aspects, he filed a claim petition under Section 166 of MV Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. To substantiate his case, he examined himself as P.W. 1, Sri. Govardhan Rao as PW2, Dr. Ramesh Kotian as PW3, Dr. S. Rajanna as PW4 and Manjunatha MN as PW5 and got marked documents as Exs. P1 to P26. Claimant did not get marked any documents. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence allowed the said claim petition in part and awarded a sum of Rs. 38,18,000/- as compensation under different heads with interest at 8% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, insofar as it relates to pain and sufferings, medical and traveling expenses, attendant charges, special diet etc. loss of future earning capacity, loss of marriage prospects and also disability on account of the injuries sustained in the road traffic accident, claimant has presented the appeal, seeking enhancement of compensation.
We have heard the learned counsel appearing for the Insurance Co. and the learned counsel appearing for the claimant.
Sri K. Suryanarayana Rao, learned counsel appearing for the appellant-insurer submits that, the Tribunal has erred in not fixing contributory negligence on the part of the respondent-claimant. Tribunal erred in awarding compensation towards different heads and the compensation awarded by the Tribunal is on the higher side and hence, it is liable to be modified. To substantiate his submission, he pointed out and taken through Ex. P3 the sketch, Ex. P4-Mahazar, Ex. P5 IMV report and Ex. P6 wound certificate, wherein the Tribunal has assessed the disability at 85.5% towards whole body and applied multiplier of ''18'' which is contrary to the evidence on record. Therefore he submitted that contributory negligence may be fixed on the part of the claimant. The vehicles involved in the accident are motor cycle and lorry. He prayed that the appeal filed by the Insurer may be allowed by modifying the impugned judgment and award passed by the Tribunal.
As against this, the learned counsel appearing for the claimant submitted that the Tribunal erred in not taking into consideration the pain and sufferings and mental agony for the reason that the claimant was admitted to the hospital as in-patient for 31 days and has under gone two surgeries on account of several grievous injuries sustained by him. As per the evidence of Doctor PW4 Dr. S. Rajanna, Orthopaedic Surgeon of Bowring and Lady Curzon Hospital, Bangalore, he found physical impairments of pain in right shoulder, stiffness and weakness of right upper limb, pain in right thigh, recurrent discharging wound from amputated stump of right thigh and other injuries and he cannot walk and stand without support, cannot walk on slope, needs assistance to move from one place to other place, cannot tie dhoti and lift over head objects, difficulty to eat in Indian style, combing is not possible and buttoning is difficult. He has to depend upon one assistant through out his life and he cannot do his day to day activities. He is not in a position to do his job as before. Therefore he submitted that having regard to the evidence of doctor and nature of the injuries sustained by him, the disability may be reassessed at 100% as against 85.5% assessed by the Tribunal. Further submitted that the discomfort and unhappiness are persists throughout his life and it affects the marital obligation of the claimant and it requires for reconsideration. These aspects are not appreciated by the Tribunal nor taken into consideration while awarding compensation and that the rate of interest awarded at 8% per annum is also on the lower side since the accident is of the year 2011 and the same may be enhanced to 9% to 10% per annum. Therefore, impugned judgment and award passed by the Tribunal is liable to be modified awarding just and reasonable compensation.
After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for consideration is:
"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"
Occurrence of the accident resulting in the injuries to the claimant is not in dispute. Further it is not in dispute that the claimant was aged about 25 years as on the date of accident and hale and healthy. It is stated that he was the doctor and student of Higher Education (M.D.) at Yoga and nature cure hospital, Shanthivana Trust, Dharmasthala and earning a sum of Rs. 15,000/- p.m. He was a bright student and had a bright career in education and unfortunately, he met with an accident on 22.04.2011 and sustained grievous injuries as stated supra. On account of injuries sustained, he has taken treatment as in-patient for 31 days in different hospitals on different dates and also under gone two surgeries to right leg above knee and other grievous injuries as stated supra. He was getting salary of Rs. 15,000/- p.m as per Ex. P25 - salary slip. He sustained mental agony and doctor advised him to take follow up treatment for six months, he lost bright future career and marital prospects in life and he has to incur future medical expenses including purchase of artificial limb. Taking all these aspects into consideration, we are of the view that claimant has made out a case for enhancement of reasonable compensation under different heads and taking all these aspects, we deem it fit to assess disability at 100% to the whole body and award Rs. 2,00,000/- towards pain and sufferings as against Rs. 1,50,000/-, Rs. 90,000/- (Rs. 15,000/- x 6 months) towards loss of income during laid up period, Rs. 1,50,000/- towards loss of Amenities as against Rs. 1,00,000/-, Rs. 32,40,000/- (Rs. 15,000/- x 12 x 18,100/100) towards loss of earning capacity as against Rs. 27,18,000/-. Rs. 1,00,000/- towards marriage prospects as against Rs. 50,000/-. Rs. 1,00,000/- towards future medical expenses as against Rs. 14,000/-.
However, the Tribunal has rightly awarded a sum of Rs. 6,86,000/- towards medical expenses, Rs. 50,000/- towards conveyance charges. Therefore, interference by this Court is not called for.
As rightly pointed out by the learned counsel appearing for the respondent/claimant that the rate of interest awarded by the Tribunal at 8% is on the lower side and accident occurred in the year 2011 and in the light of catena of Judgments, we deem it fit to award 9% interest per annum on enhanced compensation.
Having regard to the submission made by Sri K. Suryanarayana Rao, learned counsel appearing for appellant/Insurer that contributory negligence ought to have been fixed on the part of the rider of the motor cycle also i.e. the claimant it could be seen that the Tribunal neither looked into the facts nor appreciated Ex. P3 the sketch, Ex. P4 the IMV report and Ex. P5 the contents of Mahazar report. On going through these documents, which are available on record, it emerges that there is no contributory negligence on the part of the claimant. The submission made by the learned counsel appearing for the appellant-insurer cannot be accepted. The Tribunal has appreciated the oral and documentary and other material evidence available on record i.e., Ex. P1-police notice, Ex. P2 FIR copy, Ex. P3 Sketch, Ex. P4 Mahazar and Ex. P5 IMV report. These documents make it clear that claimant met with a road traffic accident, on account of involvement of his motor cycle and the offending lorry and the said accident was reported by the claimant within the reasonable time without delay and Jurisdictional police after thorough investigation found the negligent act of driver of offending lorry for cause of accident and grievous injuries sustained by the claimant. The accident occurred due to the rash and negligent act on the part of the driver of the offending lorry and therefore there are no authenticated documents produced by the appellant-insurer to prove their stand. The said aspect has been rightly considered by the Tribunal and after appreciating oral and documentary evidence by assigning cogent reasons at para No. 11 of its Judgment, fixed 100% negligence on the part of the Insurer. There is no error or illegality in fixing 100% negligence on the part of the driver of the lorry/Insurer. Therefore, interference by this Court is not called for.
Having regard to the facts and circumstances of the case, as stated above, appeal filed by the appellant-insurer is dismissed and appeal filed by the claimant for enhancement is allowed in part. The impugned judgment and award dated 13th December 2013 passed by the Tribunal in MVC No. 5214 of 2011 is hereby modified. The total compensation payable comes to Rs. 46,16,000/- with 9% interest per annum on the enhanced sum as against Rs. 38,18,000/- and the break- up is as follows:
Enhanced compensation comes to Rs. 7,98,000/-. The appellant-insurer is directed to deposit the enhanced compensation of Rs. 7,98,000/- 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.
Out of the enhanced compensation Rs. 7,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled/Grameena Bank, in the name of the claimant for a period of ten years and renewable for five years, with liberty to him to withdraw the periodical interest accrued on it.
The remaining 98,000/- with proportionate interest shall be released in favour of the claimant immediately, on deposit by the Insurer.
The amount in deposit in M.F.A. No. 1862/2014 shall be transmitted to the jurisdictional Tribunal forthwith.
Draw the award, accordingly.