S.B. Ramesh vs A.G. Suresh, Mallaiah and M/s. New India Insurance Co. Ltd.

N.K. Patil, J.—This appeal by the claimant is directed against the impugned judgment and award dated 25th February 2009, passed in M.V.C. No. 84/2006, by the II Additional Civil Judge (Sr. Dn.) & Additional Motor Accident Claims Tribunal, Shimoga, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 9,20,000/-, awarded in his favour as against his claim for Rs. 38,50,000/-, is inadequate.

The appellant claims to be aged about 32 years and working as Cable Operator and also agriculturist by profession, earning a sum of Rs. 20,000/- per month. He was hale and healthy prior to the date of accident. That at about 6:30 A.M., on 09-08-2005, when the appellant was travelling from Mysore to his native place along with one Swamy Mallikarjuna and Mallaiah in the Fiat Car bearing Registration No. KA-14/Z-8338, when it was proceeding towards Ulenahalli on Arasikere-Mysore Road, the said Car dashed against the Lorry bearing Registration No. KA-01/9239. Due to the impact, the appellant sustained grievous injuries to his forehead, right hand, shoulder, clavicle and vertebra. Immediately after the accident, he was taken to Government Hospital, Bangalore, where he took treatment as in-patient for a period of five months and still under treatment.

It is the case of the appellant that he has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated adequately.

On account of the injuries sustained in the accident, the appellant filed the claim petition u/s 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 38.50 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 25th February, 2009. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 9,20,000/- with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

We have heard learned counsel for appellant and learned counsel for third respondent/Insurance Company for considerable length of time.

It is the case of the appellant that on account of the road traffic accident, he sustained C-6 burst fracture and due to that injury, his lower limb is completely paralyzed and sustained 60% disability and was in-patient for a period of five months and therefore, he has to be awarded reasonable compensation.

The submission of the learned counsel appearing for appellant at the outset is that, the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of future earnings, future medical expenses conveyance, nourishing food and attendant charges and further erred in not awarding any compensation towards loss of amenities, discomfort and unhappiness on account of disability. Further, he specifically submitted that the Tribunal also erred in not assessing the reasonable income of the deceased. To substantiate the said submission, he submitted that the appellant was aged about 32 years and working as a cable operator and also agriculturist and sustained grievous injuries on account of which he sustained 60% permanent disability towards whole body and is in vegetable condition and cannot walk permanently and has to dependent upon the assistant of a person throughout his life. He also submitted that on account of the grievous injuries sustained, he was hospitalized for a period of five months and underwent a surgery and the permanent disability assessed by Doctor has to be endured by him for the rest of his life. Therefore, he submitted that reasonable monthly income of the appellant may be re-assessed and reasonable compensation be awarded towards all the heads by modifying the impugned judgment and award passed by Tribunal.

As against this, learned counsel appearing for third respondent/Insurer vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, considering the age, avocation, year of accident and the nature and duration of treatment undergone, nature of injuries sustained, disability assessed by Doctor, has awarded just and reasonable compensation for the grievous injuries sustained by appellant. Hence, interference in the same is uncalled for. However, after going through the gravity and seriousness of the injuries sustained and considering his age and avocation and also the fact that on account of the grievous injuries sustained, he is in vegetable status, he submitted that reasonable enhancement may be made, in accordance with law.

After hearing learned counsel for the appellant and after perusal of the judgment and award passed by Tribunal including the original records placed before us, it can be seen that, the occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 32 years and working as a cable operator and also as an agriculturist. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 4,00,000/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under injury, pain and sufferings, loss of future earnings, future medical expenses including attendant charges and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness on account of disability and the compensation awarded towards loss of income during treatment period is on the higher side. Admittedly, in view of the road traffic accident, the appellant has sustained grievous injuries, viz. C-6 burst fracture and on account of the said injury, his left lower limb is completely paralyzed and is unable to sit, stand and walk. P.W. 2, Neuro-Surgeon in the Manipal Hospital, Bangalore has deposed that he is unable to walk due to fracture of C-6 vertebral body and he has undergone surgery and the hip bone was grafted to neck bone by fixing plate and screw and further deposed that there is no improvement in the lower limbs and that he cannot walk in future and has to depend upon others for his routine work. Accordingly, the Doctor has assessed 60% disability towards whole body. But, the compensation awarded towards loss of future earnings is on the lower side and no compensation is awarded by Tribunal towards loss of amenities, discomfort and unhappiness on account of disability. Further, it can be seen that the Doctor, P.W. 2 has specifically stated that the appellant has sustained C-6 burst fracture and has sustained injuries to his spinal card also. Further, it is stated that he has to depend on the assistance of a person for his routine work for the rest of his life and on account of the grievous injuries and disability sustained in the road traffic accident, he cannot walk in future and lost the future amenities and enjoyment in life. Further, because of the disability, his marital life is also going to be affected. Therefore, having regard to the age, avocation, nature and gravity of injuries, we accept the whole body disability at 60%, as assessed by Doctor, to meet the ends of justice. The appellant being aged about only 32 years, has to endure this disability for the rest of his life. Because of the injuries sustained, he must have been away from work for a period of not less than twelve months. Further, the monthly income assessed by Tribunal is also on the lower side and liable to be re-assessed. It is stated that the appellant was earning a sum of Rs. 20,000/- per month. But, to substantiate the same, they have not produced any documentary evidence. In the absence of any documentary evidence, we have to assess his reasonable monthly income. Accordingly, having regard to the age, avocation and the year accident, we reassess the monthly income of the appellant at Rs. 5,000/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient for quite a long period on account of the grievous injuries sustained in the road traffic accident. During the period of treatment and also follow-up treatment, he must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 32 years at the time of accident, the proper multiplier applicable is ''16'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Therefore, having regard to the age, avocation, nature of injuries, disability, surgery undergone, nature and duration of treatment undergone and the facts and circumstances of the case on hand, we award a sum of Rs. 1,50,000/- towards injury, pain and suffering as against Rs. 1,00,000/-; Rs. 50,000/- towards conveyance, nourishing food and attendant charges as against Rs. 20,000/-; Rs. 60,000/- towards loss of income during treatment period, at the rate of Rs. 5,000/- per month for a period of twelve months as against Rs. 1,00,000/-; Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness as the Tribunal has not awarded any compensation under this head; Rs. 5,76,000/- (i.e. Rs. 5,000/- x 12 x ''16'' x 60/100) towards loss of future income as against Rs. 3,00,000/- and Rs. 2,50,000/- towards future medical expenses including future attendant charges as against Rs. 1,00,000/- awarded by Tribunal.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 25th February 2009, passed in M.V.C. No. 84/2006, by the II Additional Civil Judge (Sr. Dn.) & Additional Motor Accident Claims Tribunal, Shimoga, is hereby modified, awarding a sum of Rs. 15,86,000/- as against Rs. 9,20,000/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows:

The third respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 6,66,000/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, a sum of Rs. 5,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by five years, with liberty reserved to him to withdraw the periodical interest.

Remaining sum of Rs. 1,66,000/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.