Sridevi vs Khaleem and Others

N.K. Patil, J—Though this appeal is posted for further orders, the same is taken up for final disposal, with the consent of the learned counsel for the parties.

This appeal by the claimant is directed against the impugned common judgment and award dated 9th July 2013, passed in MVC No. 187/2012, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hiriyur, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 2,53,440/-, awarded in her favour as against her claim for Rs. 30,00,000/-, is inadequate.

The appellant claims to be aged about 25 years and a home maker. She was hale and healthy prior to the date of accident. That at about 9:00 P.M., on 19-11-2011, when the appellant along with others boarded Bus bearing Registration No. KA-02/C-6212 from Hiriyur to reach Dwaranakunte village, Sira Taluk and proceeding near Javanagondanahalli ''U'' turn, on NH-4 Road, at that time, the driver of Lorry bearing Registration No. KA-06/B-5915 drove the same, at a high speed, in a rash and negligent manner and dashed against the Bus in which the appellant was traveling. Due to the impact, the appellant sustained simple and grievous injuries and she was immediately shifted to Government Hospital, Hiriyur, where first aid was given and thereafter, on the advise of Doctor, she was shifted to Tumkur Government Hospital, and thereafter to NIMHANs Hospital, where she took treatment as in-patient. She also took treatment at Basaveshwara Hospital, Chitradurga, as in-patient from 22-11-2011 to 06-01-2012 and thereafter at Manipal Hospital as inpatient from 14-02-2012 to 07-04-2012 and incurred huge medical expenses and other incidental expenses.

It is the case of the appellant that she has spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, she has to be compensated adequately.

On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 30.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 9& July, 2013 along with other claim petitions filed by other passengers who were injured in the same accident. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition filed by appellant, in part, awarding a sum of Rs. 2,53,440/- with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.

We have heard learned counsel for appellant and learned counsel for second respondent/Insurance Company, for considerable length of time.

The submission of learned counsel appearing for appellant is that the Tribunal has erred in not assessing the reasonable income of the appellant, for the reason that she was aged about only 22 years at the time of accident and working as agricultural labour and hale and healthy. Unfortunately, she met with an accident and sustained grievous injuries and took treatment at different Hospitals on different occasions and was, in all hospitalized for about 95 days, during which period, she has spent huge sums towards conveyance, nourishing food and attendant charges apart from medical expenses and because of the grievous injuries sustained, the Doctor has assessed 42% permanent disability towards limb and opined that she is not in a position to do her work as effectively as she was doing earlier and she has to pull on the life with the said disability for the rest of her life. Therefore, he vehemently submitted that the impugned judgment and award passed by Tribunal is liable to be modified, by awarding just and reasonable compensation.

As against this, learned counsel appearing for Insurer sought to substantiate the impugned judgment and award passed by Tribunal, stating that the same is passed after due appreciation of the oral and documentary evidence available on file and also taking into consideration the age, avocation, nature of injuries sustained, disability assessed by Doctor, nature and duration of treatment under gone, etc. Hence, interference in the same is uncalled for.

However, after going through the compensation awarded by Tribunal and other relevant material available on file, he fairly submitted that reasonable compensation be awarded towards loss of income during treatment period and loss of amenities, discomfort and unhappiness on account of disability, in accordance with law.

After hearing learned counsel for the appellant, learned counsel appearing for Insurer and after perusal of the judgment and award passed by Tribunal, the only point that arise for our consideration in this appeal is,

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

After perusal of the entire material available on file, it emerges that, occurrence of accident and the resultant injuries sustained by appellant are not in dispute. It is also not in dispute that she was aged about 22 years and an agricultural labour. The Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs. 31,000/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for.

However, so far as the compensation awarded under injury, pain and sufferings, loss of future earnings, and conveyance, nourishing food and attendant charges is concerned, the same is on the lower side and needs to be re-determined. Further, the Tribunal has failed to award any compensation towards loss of income during treatment period and loss of amenities, discomfort and unhappiness on account of disability. Admittedly, in view of the road traffic accident, as per Wound Certificate at Ex. P67, the appellant has sustained CLW 2 x 1 cm. on chin, swelling right thigh and swelling left thigh and the said injuries are grievous in nature, i.e. L3 Spinous process fracture, L3 and L4 transverse process fracture, right ala of sacrum fracture and left acetabulum fracture. Further, the appellant has produced Disability Certificate at Ex. P75 and also examined the Doctor, PW15, who assessed the permanent disability at 42% and deposed that the appellant came with the complaint of pain in left hip and limping on walking and opined that he found shortening of left lower limb by 1 cm. (right 93 cms. And left 92 cms.) and there was decrease in range of motion, strength of left hip and she found difficulty in sitting cross-legged, squatting, kneeling and difficulty in climbing stairs, using her left lower limb. He has further deposed that the X-ray indicated that there is mal unit of fracture of left acetabulum with medial migration of head of femur. But, the Tribunal, relying upon the oral evidence of the appellant and also his avocation, has assessed the whole body permanent disability at 21%. The same, in our opinion is on the higher side. Having regard to the age, avocation, nature of injuries, disability assessed by Doctor, we re-assess the whole body disability at 15%, to meet the ends of justice. The appellant being aged about 22 years, has to endure this disability for the rest of her life. Because of the injuries sustained, she must have been away from work for a period of not less than six months. Further, having regard to the age, avocation and the year accident, we re-assess the monthly income of the appellant at Rs. 6,000/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as in-patient at different Hospitals, for quite a long period, i.e. nearly 95 days on account of the grievous injuries sustained. During this period, she must have undergone lot of unsaid pain and agony and must have also spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Since the appellant was aged about 22 years at the time of accident, the proper multiplier applicable is ''18'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . Therefore, having regard to the age, avocation, nature of injuries, disability, and the facts and circumstances of the case on hand, we award a sum of Rs. 75,000/- towards injury, pain and suffering as against Rs. 30,000/-; Rs. 25,000/- towards conveyance, nourishing food and attendant charges as against Rs. 11,000/-; Rs. 36,000/- towards loss of income during treatment period, at the rate of Rs. 6,000/- per month for a period of six months as the Tribunal has not awarded any compensation under this head; Rs. 50,000/- towards loss of amenities, discomfort and unhappiness as the Tribunal has not awarded any compensation under this head; and Rs. 1,94,400/- (i.e. Rs. 6,000/- x 12 x ''18'' x 15/100) towards loss of future income as against Rs. 1,81,440/- awarded by Tribunal. Thus, the total compensation would workout to Rs. 4,11,410/- as against Rs. 2,53,440/-. The enhanced compensation would be Rs. 1,57,960/- with 6% interest per annum.

Further, as rightly pointed out by learned counsel appearing for appellant, the rate of interest at 6% per annum awarded by Tribunal is on the lower side, as the accident has occurred on 19-11-2011. Therefore, as per the ratio of law laid down by the Hon''ble Apex Court and this Court in catena of decisions and also considering the facts and circumstances of the case, we deem it fit and proper to award rate of interest at 9% per annum on the enhanced compensation.

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 common judgment and award dated 9th July 2013, passed in MVC No. 187/2012, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Hiriyur, is hereby modified, awarding a sum of Rs. 4,11,400/- as against Rs. 2,53,440/- awarded by Tribunal, with interest at 9% per annum on the enhanced sum, from the date of petition till the date of realization. The break-up is as follows:

The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs. 1,57,960/-, with interest thereon at 9% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, a sum of Rs. 1,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by another five years, with liberty reserved to her to withdraw the periodical interest.

Remaining sum of Rs. 57,960/- with proportionate interest shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.