Srinivasa C.P. vs Shashi Kumar 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 01/06/2015, passed in MVC No. 15/2014, by the Senior Civil Judge, Channarayapatna, (hereinafter referred to as ''Tribunal'' for short).

The Tribunal, by its judgment and award has awarded a sum of Rs. 2,15,000/- under different heads with interest at 6% p.a., on Rs. 1,90,000/- (excluding future medical expenses of Rs. 25,000/-) from the date of petition till the date of deposit as against the claim of Rs. 20,00,000/-, on account of the injuries sustained by him in the road traffic accident.

In brief, the facts of the case are:

"The appellant claims to be aged about 30 years at the time of the accident. He was hale and healthy prior to the accident, Labour Contractor by profession. That on 10.09.2013 at about 8.30 a.m. appellant was proceeding on motor cycle bearing Reg. No. KA.13.W.1372 at Nagasamudra road, at that time, driver of Ape Auto bearing Reg. No. KA.13.A3842 came with high speed in a rash and negligent manner and dashed against the motor cycle of the appellant and caused the accident. Due to which, appellant sustained grievous injuries. Immediately he was shifted to Government Hospital and subsequently shifted to Janapriya Orthopedic and Accident Care Center, Hassan, where he took treatment as inpatient, undergone two surgeries and implants were inserted and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment."

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. 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 of Rs. 2,15,000/-under different heads with interest at 6% p.a., on Rs. 1,90,000/- (excluding future medical expenses of Rs. 25,000/-) from the date of petition till the date of deposit

Being dis-satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented this appeal.

The submission of the learned counsel Sri. Raju S. appearing for appellant, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, towards medical expenses, including conveyance and other incidental expenses, towards loss of amenities, discomforts and unhappiness and towards future medical expenses and what is awarded is inadequate and it requires to be enhanced reasonably. To substantiate the said submission, he has taken us through the evidence of the Doctor and submitted that, Doctor has assessed permanent disability at 35% to right lower limb and 18% to right upper limb. Further, he submits that, on account of grievous injuries sustained by the appellant, he has taken treatment as inpatient for 12 days, undergone two surgeries, implants were inserted. Due to which, he has underwent lot of pain and agony, spent reasonable amount towards medical expenses, conveyance and other incidental expenses, taken bed rest and follow up treatment atleast for three months, discomforts and unhappiness persists through out his life, it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier and he requires some amount towards future medical and other incidental expenses on the ground that, as per the evidence of the Doctor, he has to undergo one more surgery for removal of implants. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. He further submits that the rate of interest awarded by the Tribunal is on the lower side and is liable to be enhanced in the light of the judgments of the Apex Court and this Court as the accident has occurred in the year 2013. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for R2-insurer, inter- alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After careful consideration of the submission made by learned counsel appearing for the appellant, learned counsel appearing for respondent No. 2 and after perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

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

The occurrence of the accident and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that, appellant was aged about 30 years, Labour Contractor by profession. The Tribunal has justified in assessing the income of the appellant at Rs. 10,000/- per month and we accept the same. In the accident, appellant has sustained fracture of patella right, fracture of clavicle right, fracture of 5th meta tarsal right, and other injuries, for that, he has taken treatment as inpatient for 12 days, underwent two surgeries and implants were inserted. During the said period, he might have undergone lot of pain and agony, he might have spent considerable amount towards medical expenses, conveyance and other incidental expenses, and as per the advise of the Doctor he might have taken bed rest and follow-up treatment atleast for three months, during the said period, he might have incurred financial loss as he could not have attended his work regularly. Further, it is the case of the appellant that, on account of grievous injuries sustained by him in the accident, he has suffered permanent disability. To prove the same, he examined the Doctor as PW2, who after clinical examination has assessed the permanent disability at 35% to right lower limbs and 18% to right upper limb. The whole body disability comes to 17.67% and it is rounded off to 18%. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity. As per the evidence of the Doctor, appellant has to undergo one more surgery and for that, he requires Rs. 35,000/- towards future medical expenses, including incidental expenses and we accept the same. Therefore, the appellant has to be compensated reasonably. Taking all these aspects into consideration, we award a sum of Rs. 50,000/- towards injury, pain and suffering as against Rs. 25,000/-, Rs. 90,000/- towards medical expenses, including incidental expenses as against Rs. 80,000/-, Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 10,000/- and Rs. 50,000/- respectively awarded towards loss of amenities and disability and Rs. 35,000/- towards future medical expenses as against Rs. 25,000/-.

The Tribunal after due appreciation of the oral and documentary evidence available on file has justified in awarding a sum of Rs. 25,000/- towards loss of income during treatment period and therefore, it does not call for interference.

In all, the appellant is entitled to the total compensation of Rs. 3,00,000/- instead of Rs. 2,15,000/-and the break- up is as follows:

Regarding rate of interest, as rightly pointed out by the learned counsel appearing for the appellant, 6% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2013. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the entire compensation instead of 6% awarded by the Tribunal.

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 01/06/2015, passed in MVC No. 15/2014, by the Senior Civil Judge, Channarayapatna, stands modified, awarding the compensation of Rs. 3,00,000/- instead of Rs. 2,15,000/- as awarded by the Tribunal. There would be an enhancement of Rs. 85,000/- with interest at 9% p.a., on the entire compensation from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 85,000/- with interest at 9% p.a. on the entire compensation 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, the entire enhanced compensation with interest shall be released in favour of the appellant.

Draw the award, accordingly.