Sudeep vs Nithish Sanjeeva Shetty 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 13/12/2012 passed in MVC No. 184/2012, by the Presiding Officer, Fast Track Court, Udupi, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 4,74,700/- awarded by the Tribunal with interest at 7% p.a., from the date of petition till payment, as against the claim of Rs. 36,00,000/-, 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 10 years at the time of the accident. He was hale and healthy prior to the accident. That on 29.5.2011 at about 4.00 p.m. the minor appellant was standing on the western edge of NH 66 i.e. in front of Babbuswami Temple, near Guddeanagadi cross, Udayavara village, Udupi, to cross the road towards eastern side, at that time, the driver of the Tata Indica car bearing Reg. No. GJ.1KG.2624 came from Padubidri side towards Udupi in a rash and negligent manner, lost control over the car and hit the minor appellant, proceeded further and dashed against lady. Due to which, appellant sustained grievous head injury. Later he was shifted to Adarsh Hospital, Udupi, where he took treatment as inpatient for 45 days 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, parents of the appellant has 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 lost memory power and completely disoriented and suffered 100% permanent disability. Therefore, appellant has filed a claim petition before the Tribunal through his natural guardian, mother, 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. 4,74,700/- as compensation under different heads with interest at 7% p.a., from the date of petition till payment.

Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal through his natural guardian, mother, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the appellant was aged about 10 years, prosecuting his studies and hale and healthy prior to the accident. In the accident that occurred on 29.5.2011, he has sustained very severe head injury (Diffuse Axonal injury) with brain oedema and other injuries as per Ex. P5-Wound certificate. For that, he has taken treatment as inpatient for 45 days, out of which, for more than 30 days he was in ICU in coma. He examined the Doctor, who after clinical examination has assessed 100% disability which is permanent in nature. He further submits that the parents of the appellant have spent considerable amount towards medical expenses, conveyance, nourishing food and attendant charges and appellant has lost his education and discomforts and unhappiness persists though out his life and he is not in a position to do any work on account of 100% disability and the same has to be compensated reasonably. He further submits that, the Tribunal has erred in taking the notional income of the appellant at Rs. 15,000/- per annum and the same is liable to be enhanced to Rs. 30,000/- per annum, in view of the judgment of the Apex Court in the case of Kishan Gopal and Another Vs. Lala and Others, and reasonable amount may be awarded towards loss of future income. He further submits that the Tribunal has erred in not awarding any compensation towards future medical expenses, including attendant charges as the appellant is entirely depending on the others to do his day to day work and this disability would affect his marriage prospects and that the rate of interest awarded at 7% p.a. is on the lower side and is liable to be enhanced atleast to 9 to 10% since the accident is on the year 2011. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for 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. However, after going through the evidence of the Doctor and after perusal of the judgment and award, he submitted that the learned counsel appearing for the appellant has made out a case for enhancement of compensation towards injury, pain and sufferings, conveyance, nourishing food and attendant charges, loss of education, discomforts and unhappiness and loss of future income and towards future medical expenses including attendant charges and therefore, the same may be considered in accordance with law, having regard to the nature of injuries sustained by the appellant in the road traffic accident.

After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials 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 as per Ex. P5-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 10 years, studying in 4th standard and he sustained severe head injury (diffuse axonal injury) with brain oedema and Doctor has assessed 100% permanent disability to the whole body. On account of the injuries sustained by the appellant in the accident, he has taken treatment as inpatient for 45 days, out of which, he was in ICU in coma for more than 30 days and during the said period, he might have suffered lots of mental pain and agony, his parents might have spent considerable amount towards conveyance nourishing food and attendant charges and he has discontinued his education and lost education. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity and he is not in a position to do his day today activities and he requires one attendant through out his life to do his day today work and that has to be compensated by awarding reasonable compensation towards loss of future income and towards future medical expenses, including attendant charges. Taking all these factors into consideration, we award a sum of Rs. 1,50,000/- towards injury, pain and sufferings instead of Rs. 40,000/-, Rs. 50,000/- towards conveyance, nourishing food and attendant charges instead of Rs. 20,000/-, Rs. 25,000/- towards loss of education, Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness instead of Rs. 25,000/-, Rs. 4,50,000/- ( Rs. 30,000 x 15) towards loss of future earnings taking the notional income of the minor appellant at Rs. 30,000/- per annum and applying ''15'' multiplier in view of the law laid down by the Apex Court in Kishan Gopal''s case (supra) instead of Rs. 2,70,000/- and Rs. 1,00,000/- towards future medical expenses including attendant charges.

However, a sum of Rs. 1,19,700/- awarded by the Tribunal towards medical expenses is just and reasonable and after due appreciation of the medical bills produced by the appellant and therefore, it does not call for interference.

Regarding rate of interest is concerned, as rightly pointed out by the learned counsel appearing for the appellants, 7% interest per annum awarded by the Tribunal is on the lower side, since the accident is of the year 2011. In the light of the judgment of Apex Court and this Court, we award the rate of interest at 9% per annum on the enhanced compensation instead of 7% awarded by the Tribunal.

In all, the appellant is entitled to the total compensation of Rs. 9,94,700/- instead of Rs. 4,74,700/- 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 13/12/2012 passed in MVC No. 184/2012, by the Presiding Officer, Fast Track Court, Udupi, stands modified, awarding the compensation of Rs. 9,94,700/- instead of Rs. 4,74,700/-. There would be an enhancement of Rs. 5,20,000/- with interest at 9% p.a., from the date of petition till its realization.

The Insurer is directed to deposit the enhanced compensation of Rs. 5,20,000/- with interest at 9% 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. 5,20,000/-, a sum of Rs. 4,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant till he attains 30 years, with liberty reserved to the natural guardian, mother of the appellant to withdraw the interest accrued on it, periodically, for the welfare of the appellant.

The remaining sum of Rs. 1,20,000/- with proportionate interest shall be released in favour of the appellant, through his natural guardian, mother, immediately.

Draw the award, accordingly.