Shivaraju vs Muddamada Shetty

N.K. Patil, J.—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 10th July 2013, passed in MVC No. 78/2011, by the Senior Civil Judge and JMFC., and Motor Accident Claims Tribunal, Nanjangud, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 1,56,000/- awarded by the Tribunal with interest at 6% p.a., from the date of petition till the date of deposit, as against the claim of Rs. 29,60,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

The appellant claims to be aged about 28 years at the time of the accident. He was hale and healthy prior to the accident, Mason by profession and also doing agricultural work. That on 29.8.2011 the appellant was proceeding from Taradale village towards Kudalapura on motor cycle bearing Reg. No. KA.09.EJ.4916 along with one Veerupaksha at about 4.00 p.m. and when they came near Kudalapura tank, the driver of the auto rickshaw bearing Reg. No. KA.09.B.1079 came from opposite direction in a rash and negligent manner, overtook another auto which was proceeding in front of it and thereafter, dashed to his motor cycle. Due to which, appellant fell down and sustained injuries. Immediately, he was taken to Government Hospital, Nanjangud for treatment and then referred to K.R. Hospital for treatment, where he took treatment as inpatient for 53 days, underwent surgery, implants were inserted. Thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment.

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has assessed the physical disability at 48% to the particular limb. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 1,56,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till the date of deposit.

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for third respondent-Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in assessing the permanent disability at 8% to the whole body contrary to the evidence of the Doctor and in assessing the income of the appellant at Rs. 5,000/- per month as he was a mason and agriculturist by profession. He further submits that on account of the injuries sustained by the appellant, he has taken treatment as inpatient for 53 days, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, he has taken bed rest and follow up treatment for three months, discomforts and unhappiness persists through out his life and it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier and he requires some amount towards future medical expenses for removal of implants inserted. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Therefore, he submitted that the Tribunal has erred in not awarding reasonable compensation towards loss of future earnings, towards loss of amenities and in not awarding any compensation towards loss of income during treatment period and towards loss of future medical expenses. Further, he submitted that the rate of interest awarded by the Tribunal at 6% p.a., is on the lower side and is liable to be enhanced at least to 9 to 10% since the accident is of the year 2011. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel appearing for insurer, inter-alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

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

The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex. P9-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 28 years, working as mason and also doing agricultural work. It emerges that, the compensation awarded by the Tribunal towards loss of amenities and towards loss of future earnings is on the lower side and it has erred in not awarding any compensation towards loss of income during the treatment period and towards future medical expenses. Further, it emerges that the Tribunal has erred in assessing the income of the deceased at Rs. 5,000/- per month which is on lower side. Having regard to the age, occupation and the year of accident, we reassess the income of the appellant at Rs. 6,000/- per month to meet the ends of justice. In the accident, appellant has sustained fracture of supracondylar and intracondylar of right femur and other injuries as per Ex. P9-wound certificate. On account of which, he has under gone operation, implants were inserted and as per the evidence of the Doctor, appellant suffers from permanent physical disability at 48%. Having regard to the nature of injuries sustained by the appellant, we re-assess the permanent disability to the whole body at 16% instead of 8% assessed by the Tribunal to meet the ends of justice. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity.

Further, it emerges that, on account of the injuries sustained by the appellant, appellant has taken treatment as inpatient for 53 days, during that period, he might have spent reasonable amount towards medical expenses, conveyance and other incident charges and sustained financial loss, as he could not have attended his work regularly. Appellant has to undergo one more operation for removal of implants inserted and for that, he may require some amount. The proper multiplier applicable would be ''17'' instead of 15'' adopted by the Tribunal since the appellant was aged about 28 years as on the date of the accident. Taking all these aspects into consideration, we award a sum of Rs. 40,000/- towards medical expenses, including conveyance and other incidental expenses instead of Rs. 30,000/-, Rs. 18,000/- towards loss of income during the period of treatment for three months at the rate of Rs. 6,000/- per month, Rs. 20,000/- towards loss of amenities, discomforts and unhappiness instead of Rs. 10,000/-, Rs. 1,95,840/- ( Rs. 6,000/- x 12 x 17 x 16%) towards loss of future earnings instead of Rs. 76,000/-and Rs. 5,000/- towards future medical expenses.

However, a sum of Rs. 40,000/- awarded by the Tribunal towards injury pain and sufferings is just and reasonable and therefore, interference by this Court is uncalled for.

In all, the appellant is entitled to the total compensation of Rs. 3,18,840/- instead of Rs. 1,56,000/- and the break-up is as follows:

Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 10th July 2013, passed in MVC No. 78/2011, by the Senior Civil Judge and JMFC., and Motor Accident Claims Tribunal, Nanjangud, stands modified, awarding the compensation of Rs. 3,18,840/- instead of Rs. 1,56,000/-. There would be an enhancement of Rs. 1,62,840/- with interest at 9% p.a., since the accident is of the year 2011 from the date of petition till its realization.

The third respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,62,840/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 1,62,840/-, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 62,840/- with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.