Sheshappa and Others vs K.S. Nagaraj and Others

B. Sreenivas Gowda, J.

These two appeals are by the claimants seeking enhancement of compensation awarded by the Tribunal.

As these two appeals are arising out of a common road traffic accident and a common judgment of the Tribunal, they are heard together and disposed of finally by this common judgment with the consent of the learned counsel for the parties.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 2.10.2008 due to rash and negligent driving of the Maxi Cab bearing registration No. KA-16/A-4504 by its driver and liability of the insurer of the offending vehicle, the only point that arises for consideration in these appeals is:

"Whether the quantum of compensation awarded in each case is just and reasonable or does it call for enhancement?"

After hearing the learned counsel appearing for parties and perusing the Judgment and Award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.

M.F.A. No. 3744/2011 (MVC. No. 4557/2009)

The injured claimant in this case is one Omkarappa. As per the wound certificate Ex. P6 and discharge summary Ex. P8, he has sustained the following injuries:-

i) fracture of right articular process of C5 vertebra,

ii) right C4 C5 unifacetal dislocation with mild forward listhesis of C4 over C5 vertebra,

iii) mild odema non hemorrhagic contusion involving the card,

iv) posterior extrusion of C4 C5 disc indenting the C6 nerve roots and effecting the ventral surface of the cord, and

v) pain and tenderness present all over the thoracic and lumber region.

Immediately after the accident, he was shifted to Government Hospital, Kadur. From there, he was shifted to Bapuji Hospital and subsequently, to NIMHANS at Bangalore. PW. 3-Doctor, who examined the claimant has produced the recent examination report and x-ray of the claimant at Exs. 26 and 27 respectively. He has stated in his evidence that claimant had come to Sri Krishna Nursing Home on 27.5.2010 complaining of pain in cervical region, stiffness in neck, weakness in all the limb, not able to attend to his normal work and sought disability due to injuries sustained. He has stated that on perusal of the wound certificate of Government Hospital, Kadur, MRI report of City High Tech Imaging Service, Davanagere and discharge summary of NIMHANS the claimant has sustained subluxation of C4, C5 with C5 fracture of right articular process and has suffered disability of 50% to the whole body. He has also stated that claimant was operated at NIMHANS on 29.10.2008 and discharged with an advice to continue physiotherapy regularly on all the limbs and to attend OPD.

5.1. Considering the nature of injuries sustained by the claimant, a sum of Rs. 60,000/- is awarded towards pain and suffering as against Rs. 40,000/- awarded by the Tribunal.

5.2. The claimant has produced medical bills for Rs. 51,829/- as per Ex. P12 and Ex. P13. Accordingly, a sum of Rs. 52,000/- is awarded towards medical expenses.

5.3. He was treated at Government Hospital, Kadur, Bapuji Hospital, NIMHANS and Sri Krishna Nursing Home. Considering the duration of treatment as inpatient, a sum of Rs. 30,000/- is awarded towards incidental expenses, such as conveyance, nourishment and attendant charges.

5.4. Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs. 40,000/- is awarded as against Rs. 30,000/- by the Tribunal towards loss of amenities.

5.5. It is stated that claimant was earning Rs. 6,000/- pm., by doing agriculture and milk vending, but the same is not substantiated by producing documents. In the absence of proof of income, considering his age as 60 years as on the date of accident, year of the accident 2008 and avocation as daily wager, his income is assessed at Rs. 4,500/- pm. Considering the nature of injuries sustained the claimant must have been under rest and treatment for a period of five months. Therefore, a sum of Rs. 22,500/- (Rs. 4,500/- x 5) is awarded towards loss of income during laid-up period.

5.6. PW. 2-Doctor has stated that the claimant has suffered functional disability at 50% to the whole body. However, the Tribunal by holding that the disability stated by the Doctor is an exaggerated version has considered it as 25%. On perusal of the material on record even assuming that the version of PW. 2-doctor is an exaggerated one, considering the nature of injuries, the functional disability can be easily taken at 40% as against 25% taken by the Tribunal. The age of the claimant is taken at 60 by the Tribunal. Hence, the multiplier applicable to his age group is

5.7. Accordingly, the ''loss of future income'' is assessed at Rs. 1,94,400/- (4,500 x 40/100 x 12 x 9) and it is awarded as against Rs. 81,000/- awarded by the Tribunal.

Thus, the claimant is entitled for the following compensation:-

M.F.A. No. 3745/2011 (MVC. No. 4558/2009)

The injured claimant in this case is one Sheshappa. As per the wound certificate Ex. P18 and discharge summary Ex. P19, he has sustained the following injuries:-

i) abrasion present over the right leg measuring 3 x 2 cm.,

ii) tenderness present over the right hip joint,

iii) fracture of neck of right femur,

iv) pain in the right hip and unable to lift his right lower limb, and

v) trochanter right over ant joint line.

Immediately after the accident he was shifted to Government Hospital, Kadur. From there, he was shifted to Bapuji Hospital and treated there as inpatient. PW. 3-Doctor, who examined the claimant has produced the recent examination report and x-ray pertaining to the claimant at Exs. 28 and 29 respectively. He has stated in his evidence that claimant had come to Sri Krishna Nursing Home on 27.5.2010 complaining of pain in right hip, stiffness in right hip, difficulty to walk and difficulty in attending to his normal work and he has assessed the disability at 30% to the whole body.

6.1. Considering the nature of injuries sustained by the claimant, a sum of Rs. 50,000/- is awarded towards pain and suffering as against Rs. 30,000/- awarded by the Tribunal.

6.2. The claimant has produced medical bills for Rs. 62,937/- as per Ex. 22. Therefore, a sum of Rs. 63,000/- is awarded towards medical expenses.

6.3. He was treated as inpatient for more than two weeks at Bapuji Hospital. Considering the same, a sum of Rs. 10,000/- is awarded towards incidental expenses, such as conveyance, nourishment and attendant charges.

6.4. It is stated that claimant was aged about 65 years and claims to have been earning Rs. 6,000/- pm., by running a Beedi shop, but the same is not substantiated by producing documents. In the absence of proof of income, considering his age as 65 years, year of the accident 2008 and avocation as daily wager, his income is assessed at Rs. 4,000/- pm. The nature of injuries suggests that the claimant must have been under rest and treatment for a period of four months. Therefore, a sum of Rs. 16,000/- (Rs. 4,000/- x 4) is awarded towards loss of income during laid-up period.

6.5. Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs. 30,000/- is awarded towards loss of amenities as against Rs. 20,000/- awarded by the Tribunal.

6.6. PW. 2-Doctor has stated that the claimant has suffered functional disability at 30% to whole body, which appears to be an exaggeration. Therefore, functional disability is taken at 20% as against 18% taken by the Tribunal. The multiplier applicable to the age group of claimant is 7. Accordingly, the ''loss of future income'' is assessed at Rs. 67,200/- (4,000 x 20/100 x 12 x 7) and it is awarded as against Rs. 45,360/- awarded by the Tribunal.

6.7. A sum of Rs. 25,000/- awarded by the Tribunal towards future medical expenses is just and proper, which does not call for interference in this appeal.

Thus, the claimant is entitled for the following compensation:-

Accordingly, the appeals are allowed-in-part. The Judgment and Awards passed by the Tribunal are modified to the extent stated herein above. The claimants are entitled for additional compensation mentioned against their cases with interest at 6% p.a. from the date of claim petition till the date of realisation.

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this Judgment. From out of the additional compensation, 75% with proportionate interest is ordered to be invested in fixed deposit in the name of respective claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 5 years with a right of option to withdraw interest periodically. Remaining 25% with proportionate interest is ordered to be released in favour of the respective claimant. The Tribunal while releasing 25% with proportionate interest is also directed to issue F.D., slip in favour of the claimant, so that he can withdraw F.D., amount on its maturity. The bank or post office in which amount will be kept in F.D., is directed to release the F.D., amount on its maturity without insisting for an order from the Tribunal.

No order as to costs.