Sri. Rudrappa Danappanavar vs Santhosh Devasur and Sri. Siddalingappa Jambagi

N.K. Patil

This appeal by the claimant is directed against: the judgment and award dated 9th September 2009-, passed in M.V.C.No.257/2006, by the Civil Judge (Sr.Dn) and Member, Motor Accident Claims Tribunal, Harihar, (for short, Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. .12,400/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs. . 2,00,000/-, is inadequate.

The appellant claims to be aged about 47 years and a mechanic by profession and was hale and healthy prior to the date of accident. That the occurrence of accident at about 3:00 P.M. on 21-06-2006, when the appellant was travelling in a motor cycle bearing Registration No.KA-27/L-2842 as a pillion rider, on P.B. Road towards Dundashi side near Gotagodi village, due to rash and negligent driving by the rider of the said vehicle, is not in dispute. It is also not in dispute that the appellant has sustained fracture to right leg as per Ex.P74 and has undergone surgical treatment. Due to the said injuries sustained in the accident, he was shifted to Government Hospital, Dundashi and thereafter to Sri.Laxmi Surgical & Trauma Centre, Ranebennur and then to Kasturba Hospital, Manipal for further treatment by spending huge sums of money.

It is his further case that, on account of the accident, he sustained fracture to the leg and has undergone severe pain and agony and for the treatment of the said injuries, he has spent reasonable amount; towards conveyance, nourishing food and attendant charges including medical expenses and ether incidental expenses and therefore, he has to be compensated reasonably.

The learned counsel for appellant contends that the Tribunal is not justified in not awarding reasonable compensation towards injury, pain and sufferings, loss of amenities, discomfort and unhappiness, loss of future income and also loss of income during treatment period, for the reason that the Doctor has assessed the functional disability in respect of right leg at 50% and not assessed the whole body disability. In the absence of the same, the Tribunal has assessed the whole body disability at 10%, which is on the lower side. Therefore, he submits that the impugned judgment and award is liable to be modified accordingly.

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. . 12,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 9th September, 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. . 12,400/- 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 also Insurer.

After careful perusal of the impugned judgment and award passed by Tribunal, it can be seen that, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of Rs. .23,000/- towards medical expenses, and Rs. .16,000/- towards conveyance, nourishing food and attendant charges. Therefore, interference in the same is uncalled for.

However, the Tribunal has erred in not awarding reasonable compensation towards loss of income during treatment period, loss of amenities, discomfort and unhappiness, pain and sufferings, and loss of future income. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital and thereafter shifted to two Hospitals for further treatment. During this'' treatment period, he would have undergone lot of unsaid pain and agony. Further, the Doctor has not assessed the permanent whole body, but has assessed the functioning disability at 50%. In the absence of the same, the Tribunal has assessed the whole body disability at 10%, which is on the lower side, for the reason that if l/3rd of 50% is taken, the whole body disability comes to 16.66%. The appellant being aged about: 56-60 years, as assessed by Tribunal, has to endure this disability for the rest of his life and it should be borne in mind that any injuries sustained at this age would not heal easily. Further, having regard to the nature of injuries, it can easily be presumed that he would have taken bed rest and follow-up treatment at least for a period of two months and he would have spent some amount during treatment and follow-up treatment period also. A sum of Rs. .10,000/-awarded towards loss of amenities, discomfort and unhappiness is on the lower side. Therefore, having regard to the nature of injuries sustained, percentage of permanent disability, as assessed above, age and avocation of the appellant and also the fact that he cannot to do his work as effectively as he was doing earlier, 3 deem it fit to award a total sum of Rs. 40,000/-towards pain and suffers, loss of income during treatment period, loss of amenities, discomfort and unhappiness and loss of future income with interest at 6% per annum, in addition to the compensation awarded by Tribunal.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant: is allowed in part. The impugned judgment and award dated 9th September 2009, passed in M.V.C.No.257/2006, by the Civil Judge (Sr.Dn) and Member, Motor Accident Claims Tribunal, Harihar, is hereby modified, awarding compensation of a sum of Rs. 40,000/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal.

The second respondent - Insurer is directed to deposit the enhanced compensation of Rs. .40,000/-, 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 entire sum shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.