Rudramani vs Cholamandalam General Insu. Co. Ltd. and Others

N.K. Patil, J.—Though this matter is listed for orders, with the consent of the learned Counsel for the parties, this matter is taken up for final disposal.

This appeal is filed by the claimant against the impugned judgment and award dated 04.04.2013 passed in MVC No. 209/2011 on the file of the II Additional Senior Civil Judge & Additional MACT - VI, Chitradurga (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 4,10,500/- with interest at 6% p.a., on account of the injuries sustained in a road traffic accident.

The brief facts of the case are:

The appellant was aged about 42 years, an agriculturist and milk vendor. He was earning Rs. 2,00,000/- per annum from agriculture and Rs. 10,000/- p.m. from milk vending. He was hale and healthy prior to the accident. He contends that on 04.01.2011 at about 3.30 p.m., when he along with his brother, after completion of his work at Muddapura village was going on the left side of the road, in order to go to their village Muddapura Hosahatty, the driver of a bus bearing registration No. KA16/B 199 drove the same in a rash and negligent manner with high speed and dashed against the appellant. The front left side wheel of the said bus moved on the legs of the appellant. Due to the impact, the appellant sustained grievous injuries. He was shifted to Government Hospital, Chitradurga for first aid and on the advise of the doctor, he was referred to SSIMS Hospital, Davanagere, where he was treated as inpatient.

On account of the injuries sustained in the accident, the appellant has taken treatment for a period of two months as an inpatient on different dates and has also undergone 2 surgeries. As per Exs. P. 5 he sustained following injuries:

Crushed injuries on left leg

Lacerated wound on the right leg

Lacerated and tenderness on right hip.

He has also suffered comminuted fracture of base of the proximal phalanx of the right 2nd toe and also crush injury to left leg with vascular injury. Exs. P. 7 to P. 213 are medical certificates and bills. He has spent huge amount towards conveyance, nourishing food and attendant charges and medical expenses. He has examined the doctor - PW. 2, who has opined that the appellant has sustained crush injuries to his left leg and therefore, his left leg was amputed above the knee and has suffered permanent physical disability of 82% to the particular limb. The Doctor has opined that the appellant is unable to do his agricultural and milk vending business as he was doing earlier. The appellant further contended that due to amputation of his leg, he is finding difficulty in walking, sitting, traveling, climbing and to do all his daily activities. PW. 2 has not assessed the whole body disability of the appellant. On account of the injuries sustained, the appellant was constrained to file a claim petition under Section 166 of the M.V. Act before the Tribunal seeking compensation in a sum of Rs. 21,00,000/- against the respondents. The Tribunal after assessing the oral and documentary evidence and other relevant material available on file allowed the claim petition in part, fixing the liability jointly and severally on respondent Nos. 1 and 2, awarding compensation of Rs. 4,10,500/- with interest at 6% p.a. from the date of claim petition till the date of deposit. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented the instant appeal seeking enhancement contending that the compensation awarded by the Tribunal and the rate of interest is inadequate.

We have heard the learned Counsel appearing for the appellant and learned Counsel appearing for the first respondent-Insurance Company.

Sri Spoorthy Hegde N., learned Counsel for the appellant submits that the Tribunal has erred in assessing the income at only Rs. 3,000/- p.m. The appellant was an agriculturist and milk vendor, earning Rs. 18,000/- p.m. The doctor has not assessed disability to the whole body and hence, the tribunal has assessed the disability to the whole body at only at 50% which is on the lower side. The claimant is living with amputated stump. He has suffered crush injuries to his left leg and due to said crush injury, his left leg is amputated above the knee. Therefore, disability to the whole body may be re-assessed atleast between 60% and 70%. The appellant is not in a position to perform his work as he was doing early. He has already spent huge amount towards conveyance, nourishing food and attendant charges and has taken up rest and follow up treatment for 6 months. The appellant has suffered pain and sufferings and has to suffer unhappiness and discomforts throughout his life. He further submitted that the rate of interest at 6% p.a. awarded by the Tribunal is also on the lower side. As per the catena of judgments of the Apex Court and this Court, the rate of interest may be modified and at east 9% to 10% p.a. interest may be awarded. Therefore, he prays that the claimant may be awarded just and reasonable compensation by modifying the impugned judgment and award passed by the tribunal.

Per contra, learned Counsel for the insurance company inter alia submitted that the impugned judgment and award passed by the tribunal is after appreciating oral and documentary evidence on record. However, he fairly submitted that as per the evidence of the doctor - PW. 2, wound certificate, nature of the injuries suffered by the appellant and the medical condition, disability assessed by the tribunal is just and proper. He further contended that the employer of the appellant was examined and there is evidence to substantiate that the appellant was earning Rs. 8,000/- p.m. and the same may be considered in the interest of justice and equity by modifying the impugned judgment and award in accordance with law.

After critical evaluation of the oral and documentary evidence available on record and considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the only point that arises for our consideration is:

Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

The occurrence of the accident and the injuries sustained by the appellant are not in dispute. He has undergone treatment for a period of 2 months, underwent two surgeries and also requires some compensation towards future medical treatment. The doctor has assessed the permanent partial disability at 82% to the particular lower limb but has not assessed the whole body disability. The tribunal has assessed the disability at 50% to the whole body. It is the case of the appellant that he has spent huge sum towards medical expenses, conveyance, nourishing food and attendant charges. He was an agriculturist and a milk vendor, earning Rs. 10,000/- to 15,000/- p.m. Having regard to the year of the accident, 2011, we can safely assess the income at Rs. 6,000/- p.m. as against Rs. 3,000/- assessed by the tribunal and assess the permanent disability at 60% to the whole body as against 50% assessed by the Tribunal, to meet the ends of justice. He has taken treatment, bed rest and follow up treatment for a period of 6 months and undergone two surgeries. Taking all these factors into consideration, we deem it fit to award Rs. 36,000/- (Rs. 6,000/- x 6 months) towards loss of income towards during laid up period to meet the ends of justice.

The tribunal has rightly adopted the suitable multiplier T4'' as per the age of the appellant. Having regard to the facts and circumstances discussed above, a sum of Rs. 6,04,800/- i.e., (Rs. 6,000/- x 12 x 14 x 60/100) is awarded towards loss of future income as against Rs. 2,52,000/- awarded by the tribunal.

The tribunal has awarded just and reasonable compensation of Rs. 58,500/- towards medical expenses and Rs. 15,000/- towards Conveyance, nourishing food and attendant charges, which does not call for interference.

The Tribunal has erred in not awarding reasonable compensation towards pain and sufferings and loss of amenities, discomforts and unhappmess in life. The appellant was aged about 42 years and has taken treatment, bed rest and also has undergone two surgeries. He might have suffered pain and agony during treatment period, he has to undergo discomforts and unhappmess throughout his life. It is not possible for the appellant to continue his work as he was working earlier as he has undergone amputation of left leg above knee. Therefore, having regard to the facts and circumstances of the case, we award Rs. 1,50,000/- towards pain and sufferings and Rs. 1,00,000/- towards loss of amenities, discomforts and unhappmess to meet the ends of justice.

Further, the tribunal has also erred in awarding only Rs. 25,000/- towards future medical expenses. As per the evidence of the doctor/Dr. M.S. Rajesh PW. 2, after clinical and radiological examination, the appellant has to undergo future surgery and requires artificial limb in future. Therefore, we deem it fit to award Rs. 1,00,000/- towards future medical expenses.

As rightly pointed out by the learned Counsel for the appellants, the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side and hence, we deem it fit to award 9% p.a. on the enhanced compensation.

In the light of the facts and circumstances of the case, as stated above, the instant appeal filed by the appellant is allowed in part. The judgment and award dated 04.04.2013 passed in MVC No. 209/2011 on the file of the II Additional Senior Civil Judge & Additional MACT - VI, Chitradurga, is hereby modified.

The appellant is entitled for an additional compensation of Rs. 6,53,800/- with interest at 9% p.a. from the date of petition till the date of realization.

The Respondent No. 1 - Insurance Company is directed to deposit the enhanced compensation of Rs. 6,53,800/- together with interest at 9% p.a., within a period of three weeks from the date of receipt of copy of the judgment.

Out of the enhanced compensation of Rs. 6,53,800/-, a sum of Rs. 5,00,000/- with proportionate interest shall be invested in F.D. in the name of appellant, in any nationalised or scheduled bank for a period of 10 years and renewable for 5 years, with liberty to withdraw the interest periodically.

Remaining Rs. 1,53,800/- with proportionate interest shall be released in favour of the appellant immediately on deposit by R1-Insurance Company.

Office to draw the award, accordingly.