Shivalinge Gowda vs Manager, M/s. Oriental Insurance Co. Ltd. and Mr. Murugeshan

N.K. Patil, J.—This appeal by the claimant is directed against the common judgment and award dated 19th December 2008, passed in MVC No. 3121/2007, by the XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,49,400/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs. 3,50,000/-, is inadequate. The appellant claims to be aged about 42 years and working as a Security Guard, earning a sum of Rs. 4,000/- per month and was hale and healthy prior to the date of accident. That the occurrence of accident at about 7:30 P.M., on 15-04-2007, when the appellant along with others was traveling in an Auto Rickshaw bearing Registration No. KA-01/8543 near Vajramuneshwara temple gate on Bangalore-Kanakapura Road, on account of rash and negligent driving by the driver of the said Autorickshaw is not in dispute. It is also not in dispute that the appellant has sustained grievous injuries and immediately he was shifted to Parimala Hospital, where he took treatment as in-patient and thereafter he took follow-up treatment.

It-is his further case that, on account of the accident, he sustained injuries stated above and for the treatment of the said injuries, he has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated reasonably.

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. 3,50,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 19th December, 2008. 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. 1,49,400/- under different heads, with interest at 6% per annum, from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant. The first respondent-Insurer is served and un-represented.

Learned counsel appearing for appellant, at the outset submitted that the Tribunal grossly erred in not awarding reasonable compensation towards injury, pain and sufferings, loss of amenities, discomfort and unhappiness, conveyance, nourishing food and attendant charges, loss of earnings during treatment period, loss of future earnings and also towards future medical expenses. Further, he submitted that the monthly income of Rs. 3,000/- assessed by Tribunal is on the lower side and contrary to the evidence on record. He also submitted that PW 4, Orthopaedic Surgeon has deposed that the: appellant has sustained 54% functional disability in respect of limb and 27% in respect of whole body. But, the Tribunal has erroneously re-assessed the whole body disability at 10%, which is contrary to the evidence of the Doctor. The appellant has to endure the said disability for the rest of his life and he cannot do his work as effectively as he was doing earlier. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to be modified by awarding reasonable compensation under all the heads.

After hearing the learned counsel appearing for the appellant and after going through the impugned judgment and award passed by Tribunal, the only point that arise for my consideration in this appeal is:

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

After perusal of the entire material available on file, it is seen that the Tribunal, after assessing the oral and documentary evidence available on file and having regard to the nature of injuries sustained, and the evidence of the Doctor, has rightly awarded compensation of Rs. 30,000/- towards injury pain and sufferings and Rs. 5,000/- towards future medical expenses. Hence it does not call for interference. However, so far as other heads are concerned, the Tribunal erred in not awarding reasonable compensation and therefore, it requires enhancement.

After perusal of the impugned judgment and award passed by Tribunal, it can be seen that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that on account of the injuries sustained in the road traffic accident, the appellant took treatment in the Hospital and the Doctor has assessed the functional disability at 54% and whole body disability at 27%. The same appears to be on the higher side and the whole body disability of 10% re-assessed by Tribunal appears to be on the lower side. Therefore, having regard to the age avocation coupled with the nature of injuries sustained and also the evidence of the Doctor, I re-assess the whole body disability at 18% to meet the ends of justice. It is stated that when the Doctor examined the appellant on 03-10-2008, he noticed that he was with the help of cane support and limping on right side and could not bear weight on right limb, shortening of right lower limb by 2 cms, operated scar over thigh and limitation of movements of right knee and right hip and also reduction of mussel power around right hip and right knee. Recent check X-ray showed old fracture of trochanteric fracture of right femur with dynamic hip, screw plate and he needs one more surgery for removal of implants. The appellant, being aged about only 42 years, has to endure this disability for the rest of his life. Further, the monthly income of Rs. 3,000/- assessed by Tribunal is on the lower side and liable to be re-assessed. The appellant was working as a Security Guard and the accident is of the year 2007. Therefore, having regard to the age, avocation and the year of accident, I re-assess the monthly income of the appellant at Rs. 4,000/-, to meet the ends of justice. For the age of the appellant, the proper multiplier applicable is ''14'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , which the Tribunal has rightly adopted. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for nearly 15 days. During the period of treatment, the appellant must have undergone lot of unsaid pain and agony. Having regard to the nature of injuries sustained, I presume that he should have taken bed rest and follow-up treatment at least for a period of three months. Further, during the period of treatment, he would have spent reasonable sum towards conveyance, nourishing food and attendant charges apartment from incidental and medical expenses. Therefore, having regard to the nature of injuries sustained, disability, age, avocation and the nature and duration of treatment, I award a sum of Rs. 25,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 15,000/-; Rs. 12,000/- towards loss of income during treatment period, at the rate of Rs. 4,000/- per month for a period of three months as against Rs. 9,000/-; Rs. 1,20,960/- towards loss of future income (i.e. Rs. 4,000/- x 12 x ''14'' x 18/100) as against Rs. 50,400/- and Rs. 70,000/- towards medical expenses, including conveyance, nourishing food and attendant charges as against Rs. 40,000/- awarded by Tribunal. Thus, the appellant in all, would be entitled to a total compensation of Rs. 2,62,960/-, with interest at 6% per annum as against Rs. 1,49,400/- awarded by Tribunal, and the break up is as follows:

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 common judgment and award dated 19th December 2008, passed in MVC No. 3121/2007, by the XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), is hereby modified, awarding compensation of a sum of Rs. 2,62,960/-, with interest at 6% per annum, as against Rs. 1,49,400/-, awarded by Tribunal. There would be an enhancement of compensation of Rs. 1,13,560/- with 6% interest per annum.

The first respondent-Insurer is directed to deposit the enhanced compensation, with interest thereon at 6% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurer, 50% shall be deposited in the name of the appellant in Fixed Deposit, in any nationalized or scheduled Bank, for a period of ten years, renewable for another ten years, with liberty reserved to the appellant to withdraw the periodical interest.

Remaining 50% shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.