S.P. Malikarjuna vs The Deputy Commissioner KSRTC

K.L. Manjunath, J.—This is claimant''s appeal for enhancement. The claim petition was lodged by the Appellant in MVC No. 1806/2009 before the Motor Accident Claims Tribunal, Bangalore (Court of Small Causes), Bangalore claiming compensation on account of injuries sustained by him in a road traffic accident on 1.11.2008 at 3.00 p.m.

On that day, one Mallikarjuna was riding Hero Honda Motor Cycle bearing No. KA-40-J-2595 near Chimmakalahalli Village, within the limits of Gowribidanur Taluk. The Appellant was a pillion rider. When the motor cycle was near Anjaneya Temple, the KSRTC bus bearing No. KA-07-F-1019 came from opposite direction in a rash and negligent manner and dashed against the motor cycle. Indeed the appellant was a pillion rider. As a result, he sustained multiple injuries.

The rider of the motor cycle also sustained injuries. The rider also filed MVC No. 1806/2009 and the appellant fled MVC No. 1807/2009. Both petitions were clubbed together. The Tribunal has awarded a compensation of Rs. 6,60,400/-under various heads and awarded a sum of Rs. 3,80,358/- to the rider. Aggrieved by the same, the appellant filed MFA No. 454/2011. The same has been disposed of fixing liability on the KSRTC.

In the instant case, the appellant sustained following injuries:

"1. Fracture of shaft of right humerus in mid 3rd with radial nerve injury.

Fracture of right 5th to 7th ribs with hemopneumothorax.

Type II intertrochanteric fracture of right hip.

Fracture of shaft of right femur at the junctions of mid 3rd and lower 3rd junction.

Type C3 fracture of right femoral condyle.

Type II open Shatzker''s type VI tibial plateau Fracture of right side."

Immediately after the accident, he was admitted to General Hospital at Gudibande and then he was shifted to M.S. Ramaiah Memorial Hospital, Bangalore and he was treated there for more than one year and he was admitted on several occasions and he continuously underwent 6 to 7 operations and still the appellant has to undergo one more operation.

The Appellant has examined PW3-Doctor who treated him at M.S. Ramaiah Hospital, Bangalore. Accordingly to PW3, the appellant is suffering disability of 90% to his right lower limb and 60% to his right upper limb and 50% to the whole body. PW3 examined the appellant on 18.3.2010 for the purpose of assessment of physical disability and admits the following disabilities in the petitioner.

"a) He is still under going treatment with ilizarov external fixator on his right lower limb extending from the hip joint upto the ankle joint with 3 AO rods and 6 ilizarov rings and multiple shanz pins and ilizarov wires.

b) He has no movements in his right knee and has stiff hip and ankle.

c) He has abnormal mobility in his right knee and has stiff hip and ankle.

d) He walks with support of walker with inability to sit.

e) He is unable to use Indian toilet, unable to play sports.

f) His latest Z rays show hypertrophic non-union of right hunderus shaft fracture which requires another surgery in the form of home grafting.

g) Right hip X ray shows fracture union of the trochaneric fracture. LLizarov fixator is in situ with union of fracture shaft of femur, distal femur and proximal tibia. There is procurvatum of deformity of the femur fracture. There is valgus deformity at the tibial fracture site.

h) His knee joint shows severe grade post traumatic osteoarthritis in all 3 compartments."

The appellant was a Mason-cum-Agriculturist. He was earning a sum of Rs. 7000/- p.m. as a Mason and earning Rs. 5000/- as agricultural income. The Tribunal considering the disabilities came to the conclusion that the appellant is suffering from 30% disability which is contrary to the evidence of the Doctor.

The Appellant has produced medical bills worth about Rs. 3,70,000/-. He was hospitalized for nearly one year and he has spent huge amount towards food, nourishment, conveyance and attendant. Accordingly to PW3, further he has to go one more operation and attend to constant check up and he also requires money towards future expenses. Accordingly to PW3, the appellant is unable to do any work and he is unable sit or stand.

The Tribunal considering the evidence of the claimant and PW3 awarded lessor amount of Rs. 60,000/- under pain and suffering and Rs. 30,000/- towards loss of income during laid up period. Considering the income of the appellant at 100/- per day and Rs. 3000 p.m. awarded a sum of Rs. 1.40,900/- towards future loss of income and Rs. 5000/-towards future loss of amenities in life and Rs. 4,00,000/-towards medical and incidental expenses and Rs. 35,000/-towards future medical expenses. Thus in all granted a sum of Rs. 6,60,400/-,

Being not satisfied with the award passed by the Tribunal, the present appeal is filed.

We have heard the learned counsel for both the parties. Accordingly to the learned counsel for the appellant, the Tribunal has committed an error in awarding just and proper compensation based on the materials placed on behalf of the appellant. According to the appellant, when he was hospitalized for near one year and when he underwent 6 to 7 operations, awarding compensation towards pain and suffering at Rs. 60,000/- is inadequate and thereafter he was unable to do any work, so the Tribunal has committed an error in assessing the disability at 30% and the Tribunal was required to consider the functional disability at 100%, Based on the same, the Tribunal should have awarded future loss of income treating that there is loss of 100% income. The award of Rs. 5000/- towards future loss of amenities is also inadequate. According to him, the appellant was aged 47 years at the time of accident. He has to spent rest of the life till death with 100% disability and he cannot enjoy the life. Therefore, awarding of Rs. 5000/- towards future loss of amenities is inadequate and awarding of Rs. 25,000/- towards future medical expenses is also inadequate. The medical and incidental expenses has been awarded Rs. 4,00,000/- is adequate as the appellant has produced medical bills for Rs. 3,80,000/-. Therefore, this Court requires to re assess the evidence and allow this appeal by enhancing the compensation.

The learned counsel for KSRTC submitted that the compensation awarded by the Tribunal is just and proper. According to him, when the Doctor hold that there is disability at 50% to the whole body, the Tribunal is justified in taking loss of income at 30%. He prays for dismissal of this appeal.

Having heard the learned counsel for both the parties and upon perusal of the evidence and documents produced by the appellant, we are of the view that the trial judge did not appreciate the case of the appellant properly and therefore, we would like to re-assess the evidence and award the compensation as hereunder:

Since the appellant has sustained multiple fractures, he underwent to 6 to 7 operations and he was in the hospital for nearly one year, we would like to award a sum of Rs. 1,50,000/- for pain and suffering. The Appellant has produced medical bills worth Rs. 3,80,000/-. The Tribunal has awarded Rs. 3,75,000/- towards medical expenses which we would confirm the same. When the appellant was hospitalized for more than one year, some one has to look after him as attender and he was advised to the Doctor to have special nourishment, food and conveyance, we would like to award Rs. 1,50,000/-.

The Tribunal has not considered that the appellant has unable to lead his life in future. When the appellant was aged 47 years and when he confined to home and even he has to use crutches for his day today activities, awarding Rs. 5000/- towards loss of amenities is inadequate. Therefore, we would award a sum of Rs. 1,00,000/- towards the same.

The Doctor has deposed that the appellant has to undergo one more operation and in addition he needs further treatment towards future medical expenses, therefore, we would like to award a sum of Rs. 75,000/- towards future medical expenses.

So far as the loss of income during laid up period and future loss of income is concerned, the appellant has sustained 90% disability to his right lower limb and 60% disability to his right upper limb and whole body disability at 100% as he is unable to do any work. Therefore, taking functional disability at 100% we would not consider the loss of income during laid up period since the compensation.

The appellant has not placed any material to show the actual income as on the date of accident. In the absence, we would like to assess the income of the appellant at Rs. 4000/- p.m. since the accident is of the year 2008. and we hold that there is 100% loss of income. Taking the income as Rs. 48,000/- p.a., considering the age of the appellant at 47 and taking the multiplier at 13, we would award a sum of Rs. 6,24,000/- towards future loss of income. Hence we award a total sum of Rs. 14,74,000/- as against Rs. 6,60,400/-. The appellant is entitled for Rs. 14,74,000/-. The enhanced amount carries interest at 6% p.a. from the date of petition till the date of payment. Out of enhanced compensation, a sum of Rs. 5,00,000/- should be kept in FD in the name of the appellant for a period of five years, he is entitled to withdraw the periodical interest. Rest of the amount shall be released to him. The appeal is allowed in part.