S.P. Sharma vs Yashwanth Tukaram Shivaloi and Others

N.K. Patil, J.—This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 05/01/2005, passed in MVC No. 1071/2001, by the II Additional Civil Judge (Sr.Dn) and Additional Motor Accident Claims Tribunal, Chitradurga, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 1,33,000/- 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. 4,36,000/-, 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 50 years at the time of the accident. He was hale and healthy prior to the accident, Hotelier by profession and earning Rs. 12,000/- per month. That on 14.1.2001 at about 12 noon, appellant was travelling in car bearing Reg. No. KA.01.N.8547 from Palvanahalli gate to Chitradurga and when the said car came near Kyadigere bridge, he stopped his car on the left side of the road and at that time, the driver of the lorry bearing Reg. No. MTQ.5685 came in a rash and negligent manner from Chitradurga side and dashed against his car. Due to which, appellant sustained fractures of right Trochanteric wim Bicondylan (femur) and right tibia and other injuries all over his body. Immediately, he was shifted to Hospital, where he took treatment for two months and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment." 3. 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 60% to right leg. 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. 1,33,000/- 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 gone through the grounds urged in the memorandum of appeal.

It is the case of the appellant that, he has sustained grievous injuries, viz., fracture of right trochanteric fracture with biocondyler and right tibia in the road traffic accident as per Ex. P49-wound certificate, on account of which, he has taken treatment in the hospital and the said injuries has resulted in permanent disability, due to which he has undergone lot of pain and agony apart from mental shock. It is also the case of the appellant that, he has spent considerable amount towards medical expenses, conveyance and other incidental charges and he is not in a position to do his business as he was doing earlier. It is also the case of the appellant that as per the evidence of the Doctor, PW5, he has suffered permanent disability at 60% to right leg and therefore, the Tribunal ought to have awarded reasonable compensation towards injury, pain and sufferings, conveyance, nourishing food and attendant charges and loss of income during the treatment period and ought to have awarded compensation towards loss of amenities, discomforts and unhappiness due to disability. Therefore, the appellant prayed that, the impugned judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation on account of the injuries sustained by him in the accident.

Per contra, it is the case of the Insurer that, the accident had occurred in the year 2001 and therefore, the Tribunal has justified in awarding compensation under different heads after considering the oral and documentary evidence available on file and also taking into consideration the nature of injuries sustained by the appellant, the nature and duration of the treatment taken by him and after perusal of the evidence of the Doctor and therefore, it does not call for interference.

After careful consideration of the grounds urged by the appellant in the memorandum of appeal and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant injuries sustained by the appellant as per Ex. P48-wound certificate are not in dispute. The Tribunal has assessed his income at Rs. 100/- per day and at Rs. 3,000/- per month which is on the lower side. It is the case of the appellant that he was aged about 50 years, Hotelier by profession and earning Rs. 12,000/- per month. But he has not produced any documents to prove the same. Having regard to the age, occupation and the year of accident, we re-assess his income at Rs. 10,000/- per month to meet the ends of justice. Further it can be seen from the evidence of PW5-Dr. Venkatashiva Reddy that, the appellant has sustained 60% disability to his right leg and has issued Ex. P49-Disability certificate. Having regard to the nature of injuries sustained by the appellant, we re-assess the permanent disability to the whole body at 20% 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 and it has to be compensated reasonably.

Further, it emerges that, during the course of treatment, appellant might have undergone pain and agony during the period of treatment, he might have sustained financial loss, as he could not have attended his work regularly and the disability is permanent in nature Taking all these aspects into consideration, we award a sum of Rs. 60,000/- towards injury, pain and suffering instead of Rs. 40,000/-, Rs. 30,000/- towards loss of income during the period of treatment for three months at the rate of Rs. 10,000/- per month instead of Rs. 9,000/-; Rs. 20,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 9,000/-, and Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness.

However, the Tribunal has justified in awarding a sum of Rs. 25,000/- towards medical expenses, Rs. 30,000/- towards general damages and Rs. 20,000/- towards Car repair charges after due appreciation of the oral and documentary evidence produced by the appellant and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 2,85,000/- instead of Rs. 1,33,000/- 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 05/01/2005, passed in MVC No. 1071/2001, by the II Additional Civil Judge (Sr.Dn) and Additional Motor Accident Claims Tribunal, Chitradurga, stands modified, awarding the compensation of Rs. 2,85,000/- instead of Rs. 1,33,000/- awarded by the Tribunal. There would be an enhancement of Rs. 1,52,000/- with interest at 6% p.a., from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,52,000/- with interest at 6% 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. 1,52,000/-, 50% with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameena Bank in the name of the appellant for a period of 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining 50% with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.