S.M. Mahesha vs Cholamangalam General Insurance Co. Ltd. and Others

N.K. Patil, J.—This appeal is filed by the claimants against the impugned judgment and award dated 09.10.2012 passed in MVC No. 2567/2011 on the file of the Court of Small Causes, Bangalore City (SCCH-12), (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 3,68,400/- with interest at 6% p.a. from the date of petition till the date of realisation, on account of the injuries suffered in a road traffic accident.

The brief facts of the case are:

"The appellant was aged about 30 years, working as a driver of luxury bus and hale and healthy prior to the accident. He met with an accident on 10.02.2011 when he was driving the tourist bus bearing registration No. KA-01-D-9615 when a lorry bearing registration No. AP-01-X-7645 came with a high speed in a rash and negligent manner and dashed against the Bus. Due to the impact, he sustained grievous injuries and was immediately shifted to Government Hospital, Goodluru where he took first aid treatment and then shifted to JSS hospital, Mysore. He was admitted as an in-patient for 15 days and undergone three surgeries. On account of injuries sustained in the accident, he has spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges, follow up treatment etc. He was not in a position to continue his job as a driver and he was surrendered his driving licence to the jurisdictional R.T.O. He suffered mental pain and agony and discomfort and unhappiness persists through out his life. Taking all these factors into consideration, the appellant was constrained to file a claim petition under Section 166 of the M.V. Act before the Tribunal seeking compensation against the respondents. The Tribunal after assessing the oral and documentary evidence and other relevant material available on the file, allowed the claim petition in part awarding compensation of Rs. 3,68,400/- with interest at 6% p.a. from the date of claim petition till the date of realisation. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented the instant appeal seeking enhancement of compensation as well as higher rate of interest."

We have heard Sri K.R. Murali Krishna, learned Counsel appearing for the appellant and Shri O. Mahesh, learned Counsel appearing for respondent No. 1 - Insurance Company, for considerable length of time.

Learned Counsel for the appellant submits that the Tribunal has erred in not awarding reasonable compensation towards injury pain and sufferings, loss of amenities, loss of income during laid up period, etc. He submitted that the appellant was aged about 30 years and a driver by profession. He was getting a salary of Rs. 15,000/- per month and batta of Rs. 200/- per day. The appellant was admitted as an in-patient in the hospital, where he undergone three surgeries. After clinical and radiological examination, the doctor who treated the appellant opined that the appellant has suffered 80% permanent functional disability. The claimant has suffered mental pain and agony and there is loss of amenities, discomfort and unhappiness persists throughout his life. The doctor has advised him bed rest for more than six months. On account of permanent disability, he has discontinued his profession as a driver and also surrendered his driving licence to the jurisdictional R.T.O. during the pendency of this appeal. These aspects of the matter have not been considered by the Tribunal. It is further submitted that the Tribunal committed grave error in assessing the income of the appellant at Rs. 5,000/- per month which is contrary to the evidence of P.W. 1-claimant, where he has stated that he was earning more than Rs. 15,000/- per month and getting batta of Rs. 200/- per day. Therefore, income of the appellant may be reassessed.

He further submitted that the rate of interest awarded at 6% p.a. by the Tribunal is also on the lower side. As per the catena of judgments of the Apex Court and this Court, the rate of interest may be modified and interest at the rate of 9% or 10% p.a. may be awarded. Therefore, he prays to modify the judgment and award, by awarding just and reasonable compensation.

Per contra, learned Counsel for the Insurance Company inter alia submitted that the appellant has neither produced any credible document nor examined his employer to show that he was getting an income of Rs. 15,000/- per month. He has surrendered his driving licence to the jurisdictional R.T.O. and produced only xerox copy of the same. Therefore, the compensation awarded by the Tribunal is just and reasonable and interference by this Court is uncalled for.

After critical evaluation of the oral and documentary evidence available on record and considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the only point that arises for our consideration is:

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

After careful perusal of the impugned judgment and award passed by the Tribunal, what emerges is, the occurrence of the accident and the injuries sustained by the appellant are not in dispute. It is also not in dispute that the appellant was aged 30 years and a driver by profession. It is the case of the appellant that he met with an accident and sustained grievous injuries in the accident. He examined the doctor-P.W. 2, who after clinical and radiological examination on 30.1.2012, found the following disabilities:

"Disfigurement of his arm, elbow and forearm, wounds have healed well with a small dog-ear near outer aspect of his elbow, skin graft has taken up well,

Wrist and hand-

He can make full fist, grip strength is weak and has paraesthesia in his outer 3 fingers, wrist ROM, dorsiflexion-30 degree, palmar flexion-80 degree, muscle strength around wrist-4/5,

Forearm-

Paraesthesia over dorsum of forearm, anaesthesia over medical and volar aspect of forearm, forearm is fixed in mid prone position without any rotations, forearm is fixed in mid prone position without any rotations,

Elbow-

Fixed flexion of 40 degree in elbow, no movements in the elbow, doe-ear near outer aspect of his elbow

Arm-

Wasting of muscles with scar of skin grafting

Painless abnormal mobility of humerus at junction of middle 1/3rd with lower 1/3rd is present.

Shoulder-

Flexion 30 degree, extension 20 degree, external rotation 5 degree, internal rotation 40 degree, power of muscles around shoulder is 4/5, Front elevation can be done with left hand support upto 80 degree."

The doctor has assessed the disability at 80%. Out of which, if 1/3rd is taken, it comes to Rs. 26.66% and when it is rounded off, it comes to 27% permanent disability to the whole body. The disability is permanent in nature and it persists through out his life. He might have spent reasonable amount towards medical expenses and might have taken bed rest at least for six months. On account of grievous injuries suffered, he was not able to continue his profession as a driver and he surrendered his driving licence to the jurisdictional Tribunal and produced xerox copy. Having regard to the above factors and considering the age, avocation and year of the accident, we can safely take the income at Rs. 7,500/- per month, to meet the ends of justice. After reappreciation of oral and documentary evidence on record, we award a sum of Rs. 75,000/- towards pain and suffering as against Rs. 40,000/- Rs. 25,000/- towards attendant charges, conveyance, nourishing food as against Rs. 5,000/-, Rs. 60,000/- towards loss of amenities as against Rs. 20,000/-, Rs. 4,13,100/- towards loss of future income as against Rs. 2,04,000/- and Rs. 45,000/- towards loss of income during laid up period as against Rs. 25,000/-. The Tribunal has rightly awarded Rs. 74,400/- towards medical expenses and the same does not call for interference. The break-up is as follows:

Having regard to the facts and circumstances of the case as stated above, the appeal filed by the claimant is allowed in part. The impugned judgment and award dated 09.10.2012 passed in MVC No. 2567/2011 on the file of Court of Small Causes, Bangalore City (SCCH-12) is hereby modified. The total compensation payable comes to Rs. 6,92,500/- as against Rs. 3,68,400/- awarded by the Tribunal. The enhanced compensation comes to Rs. 3,24,100/- with interest at 9% p.a. from the date of petition till its realization as the accident is of the year 2011.

The first respondent-insurer is directed to deposit enhanced compensation with interest at 9% p.a. within three weeks from the date of receipt of a copy of this judgment.

Out of enhanced compensation of Rs. 3,24,100/-, a sum of Rs. 2,00,000/- with proportionate interest shall be invested in the name of appellant, in F.D. in any nationalised or scheduled or Grameena bank for a period of 10 years and renewable for 10 years, with liberty to withdraw the interest periodically.

The remaining amount of Rs. 1,24,100/- with proportionate interest shall be released in favour of the appellant, immediately after deposit by the first respondent-Insurer.

Office to draw the award accordingly.