AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Patil
This appeal by the claimant is directed against the judgment and award dated 9th July 2009, passed in M.V.C. No. 478/2005, by the I Additional Civil Judge(Sr.Dn) and Additional MACT, Shimoga (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 2,97,000/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs. 5,00,000/-, is inadequate.
The appellant claims to be aged about 43 years and was hale and healthy prior to the date of accident. That the occurrence of accident at about 2:30 P.M., on 22-04-2005, when the appellant was proceeding towards Somapura village from Gundenahalli on his motor bike bearing Registration No.KA-15/H-7521, due to rash and negligent driving by the driver of Tractor trailer bearing No.KA-14/T-5454, is not in dispute. It is also not in dispute that the appellant has sustained Type III B open fracture of distal third of right femur (grievous injury), fracture of right patella (grievous injury), fracture of right tibia condyles (grievous injury) and the appellant was also operated and the bones were fixed with the help of screw plate etc. and thereafter the nail was removed and external fixator application done under spinal anaesthesia andand thereafter the fixator removed and discharged with thigh corset applied. Further, when the appellant was examined on 09-09-2008, it was found that there was non -union of fracture of right femur and walking with support, 0-30% of movements in his right knee joint, right hip joint movements rested by 30%, grade IV power in his right quadriceps, hamstring and right hip abductor muscles. On account of these injuries sustained in the road traffic accident, he was admitted to Mc.Gann. Hospital, Shimoga for treatment and on advise of the Doctor, shifted to K.M.C. Hospital, Manipal for better treatment, ad thereafter readmitted to the said Hospital several times.
It is his further case that, on account of the accident, he sustained injuries as stated above. The Doctor has assessed 34% permanent functional disability in respect of right lower limb and opined that the appellant would be unable to climb stairs, squat, sit cross legged, run, carry weight and walk etc. assessing all these infirmities. The X-rays showed that he sustained fracture of right femur tibia and fibula. Therefore, it is the ease of the appellant that for the said treatment, he has spent considerable 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. 5,00,000/-against the respondents. The said claim petition had come up for consideration before the Tribunal on 9th July, 2009. 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. 2,97,000/- 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 and the Insurer.
After hearing the learned counsel appearing for the appellant and the Insurer and after going through the impugned judgment and award passed by Tribunal, I am of the view that, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of Rs. 1,00,000/- towards medical expenses and Rs. 30,000/- towards pain and sufferings. Therefore, interference in the same is uncalled for.
However, so far as the compensation awarded towards loss of future income and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be enhanced. Further, the Tribunal has also not awarded any compensation towards loss of income during treatment period and also loss of amenities, discomfort and unhappiness. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in different Hospitals for a period of twenty-eight days. During this period, he would have spent some reasonable amount towards conveyance, nourishing food and attendant charges. A sum of Rs. 5,000/- awarded under the said head is on the lower side and has to be enhanced. The appellant has sustained injuries as stated above and during the period of treatment, he would have undergone lot of unsaid pain and agony. The Doctor has opined that the appellant has sustained 34% permanent functional disability towards right lower limb, but has not assessed the whole body disability. The Tribunal has assessed the whole body disability at 30%, which, in my opinion, is on the lower side, having regard to the nature of injuries. Therefore, having regard to the facts and circumstances of the case and also the nature of injuries including multiple fractures sustained, I assess the whole body disability at 34% for awarding compensation towards loss of future income. Further, having regard to the age, avocation and the year of accident, being 2005. I accept the monthly income of the appellant at Rs. 3,000/-, as assessed by Tribunal. Since the appellant was aged about 43 years, at the time of accident, the proper multiplier is ''14'', as per the decision of the Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, ). Further, due to the injuries sustained, on the advise of Doctor, the appellant might have taken bed rest and follow-up treatment at least for a period of four months. Further, the Tribunal has failed to award any compensation towards loss of amenities, discomfort and unhappiness on account of disability. When the Tribunal has assessed the disability at 30%, it ought to have awarded compensation towards loss of amenities, discomfort and unhappiness. Therefore, having regard to the nature of injuries sustained including multiple fracture of right femur, tibia and fibula, etc., and also having regard to the age, avocation and the nature and duration of treatment, I award a sum of Rs. 15,000/-towards conveyance, nourishing food and attendant charges as against Rs. 5,000/-; Rs. 12,000/- towards loss of income during treatment period, at the rate of Rs. 3,000/-per month for a period of four months; Rs. 20,000/-towards loss of amenities, discomfort and unhappiness and Rs. 1,71,360/- (i.e. Rs. 3,000/- x 12 x ''14'' x 34/100), towards loss of future income as against Rs. 1,62,000/-awarded by Tribunal.
Further, at this stage, learned counsel appealing for appellant submits that she has filed a Misc.Cvl.application, producing the additional documents, which are 21 original medical bills and submitted that the appellant has undergone further treatment for the injuries sustained in the road traffic accident, amounting to Rs. 32,684/- and therefore, the said amount may be awarded.
In the light of the statements made in the affidavit filed along with the Misc.Cvl. and for the reasons stated therein. Misc.Cvl. 10447/2011 filed for producing additional documents is allowed and a sum of Rs. 32,684/- is awarded towards additional medical expenses on the basis of 21 additional medical bills. Thus, the appellant in all, would be entitled to a total compensation of Rs. 3,81,044/- with interest at 6% per annum, as against; Rs. 2,97,000/- awarded by Tribunal, and the break up is as follows:
Towards Pain and sufferings
Rs. 30,000/-
Towards loss of income during treatment
Rs. 12,000/-
Towards Medical Expenses
Rs. 1,00,000/-
Towards conveyance, nourishing food and attendant Charges
Rs. 15,000/-
Towards loss of amenities, discomfort and unhappiness
Rs. 20,000/-
Towards loss of future income
Rs. 1,71,360/-
Towards additional medical expenses
Rs. 32,684/-
Total
Rs. 3,81,044/-
In the light of the facts and circumstances of the case, as stated above, the appeal tiled by appellant is allowed in part. The impugned judgment and award dated 9th July 2009, passed in M.V.C. No. 478/2005, by the I Additional Civil Judge(Sr.Dn) and Additional MACT, Shimoga is hereby modified, awarding compensation of a sum of Rs. 3,81,044/-, with interest at 6% per annum, as against Rs. 2,97,000/-, awarded by Tribunal. There would be an enhancement of compensation of Rs. 84,044/- with 6% interest per annum.
The third 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 and award.
On such deposit by the Insurer, the same shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.