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Judgment
K. Bhakthavatsala, J.—The appellant/claimant in MVC No. 4969/2003 on the file of the Small Causes & Additional MACT, Bangalore, is before this Court u/s 173(1) of the Motor Vehicles Act, 1988, for enhancement of compensation by modifying the impugned Judgment & award dated 26-07-2005 passed in the above said case.
The brief facts of the case leading to the filing of this appeal may be stated as under:
It is the case of the appellant/claimant that due to rash and negligent driving of the Toyota Quallis bearing Registration No. KA-02AB5554 he came and dashed against the motor cycle bearing Registration No. KA-02EB1753 and the claimant who was riding it along with a pillion rider (viz., the claimant in MVC No. 4968/2003) sustained grievous injuries. It is the case of the claimant that as on the date of the accident, he was 21 years, working as a co proprietor of Uttam Silk and earning Rs. 10.000/- per month and he has spent Rs. 2,00,000/- towards medical expenses, conveyance, nourishment expenses till the dale of filing of the Claim Petition. The claimant, filed a Claim Petition against the owner and insurer of Toyota Quallis claiming compensation of Rs. 15,00,000/- towards injuries sustained in the accident. The Claim Petition in MVC No. 4968/03 and MVC No. 4969/03 were clubbed. The parties went to trial. In so far as the claimant, in this case, is concerned, he got himself examined as PW-1, besides examining, the Medical Officer as PW-5 and got marked documents. The Tribunal has held that the accident occurred due to rash and negligent driving of the Quallis Car driven by its driver and awarded compensation in favour of the claimant as under:
Pain and sufferings Rs. 60,000-00 2. Medical expenses Rs. 1,10.000-00 3. Conveyance expanses Rs. 5,000-00 4. Future medical expenses Rs. 5,000-00 5. Loss of earning during the Rs. 16.000-00 period of treatment & rest 4,000 x 4 6. Loss of future income Rs. 81,600-00 400 x 12 x 17 7. Loss, of amenities Rs. 35,000-00 __________________ Total Rs. 3,12,600,00 __________________
It is pleaded in the Memorandum of Appeal that the Tribunal erred in not awarding the compensation as prayed for and the Presiding Officer erred in not awarding the medical expenses including physiotherapy and future medical expenses as prayed for. It is also contended ''hat the compensation awarded towards the other relevant head is inadequate.
Sri. A.N. Krishnaswamy, learned Counsel appearing for the respondent No. 2/lnsuranee Company submits that the compensation awarded by the Tribunal is adequate and there is no good ground for enhancement.
We have perused the records. The Tribunal has discussed about the quantum of compensation awarded in favour of the claimant in Para No. 23 to 29 of the impugned judgment. The claimant has sustained the following injuries:
Injury over the right wrist joint;
Displaced compound fracture of light lower 1/3rd of femur of ''Y'' shaped lacerations on the occipital region;
Comminuted fracture of lower shaft of femur;
Fracture of right knee;
It is in the evidence of the Claimant, that he was treated in Mallya Hospital, Bangalore from 17.07.2003 to 22.08.2003 and from 11.09.2003 to 14.09.2003. PW-5 the Medical Officer has deposed that the claimant was undergone the following surgeries:
i. Open reduction and lateral fixation of right femur fracture with DSC & Side plate and percutaneous K wire fixation of Right Radius under General anesthesia on 18.07.2003;
ii. Wound wash and resuturing was done on 28.07.2003 under general anesthesia;
iii. K-wire removal from lower end of right Radius was done on 21.08.2003.
The claimant has deposed that he has spent a sum of Rs. 2.00,000/- towards medical expenses including physiotherapy and has produced 23 medical bills for Rs. 1,27.952-46. Bat the Tribunal has awarded a sum of Rs. 1,15,000/- towards medical expenses. The Tribunal has not accepted the four physiotherapy bills, in all amounting to Rs. 16,000/-, on the ground that it was exorbitant and not proved. The Tribunal has observed that the Claimant has not produced the prescriptions and medical bills. The Tribunal has awarded compensation of Rs. 1,15,000/- towards medical expenses and a sum of Rs. 5,000/- towards conveyance, nourishment and other incidental expenses. It is claimed that the claimant was working as a co-proprietor with his father and getting income of Rs. 10,000/- per month. He has produced Pan Card and Income Tax Returns for the assessment years 2001-02 to 2004-05. According to that maximum income shown from the business is Rs. 5,000/- per month. But the tribunal has fixed the income of the claimant at Rs. 4,000/- per month and awarded a sum of Rs. 16,000/- towards loss of earning during the period of treatment and rest for a period of four months. PW-5 has deposed that the claimant has got permanent disablement 60% of right lower limb and 109/6 of right upper limb and 23% for whole body. Keeping in view that the claimant had sustained three fractures and evidence of PW-5, the tribunal has fixed the permanent disablement at. 10% of the whole body and since the claimant was 23 years old applied multiplier 17 and awarded Rs. 81,600/- towards loss of future earning and a sum of Rs. 35,000/- towards loss of amenities. The receipts produced at Ex.P13 series discloses that the claimant has taken physiotherapy treatment as per Dr. Surendra Shetty''s advise from 01.09.2003 to 13.12.2003 (i.e., for a period of four months). Keeping in view the nature of injuries sustained and the evidence of the Medical Officer-PW-5 there was no good ground to reject these bills. The medical reports produced by the claimant establish the amount of pain and suffering undergone by the claimant. In spite of treatment, it has resulted in permanent disablement. Earnings of the claimant fixed at Rs. 4,000/- per month is reasonable. The claimant is entitled for reasonable compensation towards medical expenses, future medical expenses, loss of amenities, attendant charges, special diet charges, conveyance charges. PW-5 has deposed that the claimant has got permanent, disablement to the extent of 23% of the whole body with reference to the right lower limb and a right hand. It is useful to refer the evidence of PW-5. He has deposed that he examined the claimant on 24.05.2005 and noticed limp over right lower limb, difficulty to climbing stairs, difficulty to walk for long distance, not able to run, squat and to carry heavy objects with right upper limb. He has noticed wasting of right thigh muscles, wasting of right calf muscle and the right lover limb was kept in 40 degree flexion at hip and 45 degree flexion at right knee; further flexion possible up to 95 degree at right knee, crepitus present on movement of right knee, last 10 degree of right hip flexion is restricted. He has further observed wasting of right forearm muscles last 10 degree of right wrist dossiblexion is restricted and last 15 degree of palmar flexion of right wrist is restricted. X-ray of right knee showed implants in-situ. X-ray of right to rearm showed bony fragment on dorsah aspect of the wrist and advised exercise and removal of implants, which may, costs between Rs. 13,000/- to Rs. 15,000/-. In view of the disablement noticed by the Medical Officer, permanent disablement of the claimant can be safely fixed at 15% of the whole body as against 10% fixed by the Tribunal. Since the claimant is aged about 23 years and according to ratio laid down in Sarla Verma and Ors. v. Delhi Transport Corporation And Anr. reported in 2009 (6) SCc 12.1, the multiplier for the age group of 21 in 25 is 18. The claimant is entitled for compensation as under:
Pain and sufferings Rs. 75,000-00 2. Medical expenses Rs. 1,30,000-00 3. Attendant, conveyance Rs. 10.000-00 and special diet expenses 4. Future medical expenses Rs. 15,000-00 5. Loss of earning during the Rs. 16,000-00 period of treatment & rest Rs. 4,000 x 4 months 6. Loss of future income Rs. 1.29.600-00 Rs. 800 x 12 x 18 7. Loss of amenities Rs. 50.000-00 _______________________ Total Rs. 4,25,600-00 _______________________ Less: compensation Rs. 3,12.600-00 awarded by the Tribunal _______________________ Balance Rs. 1,13.000-00
Thus the claimant is entitled ro additional compensation of Rs. 1,13,000/.
In the result, the appeal is partly allowed holding that the appellant/claimant, is entitled to additional compensation of Rs. 1,13,000/- along with costs arid interest at 6% p.a. from the date of the Petition, till realisation. Accordingly, the impugned Judgment and award are modified. Respondent No. 2 is directed to deposit the additional compensation amount along with costs and interest with the Tribunal within two months from today.