Sujatha vs N. Byre Gowda and Others

N.K. Patil, J.—This appeal by the injured claimant is directed against the impugned judgment and award dated 1st January 2013, passed in MVC No. 38/2006, by the Senior Civil Judge & Motor Accident Claims Tribunal, Channarayapatna, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,68,400/-, awarded in her favour as against her claim for Rs. 33,47,900/-, is inadequate.

The appellant claims to be aged about 30 years and getting an income of Rs. 8,250/- per month from animal husbandry work, cottage industries and crafting work and was hale and healthy prior to the date of accident. That at about 5:30 P.M., on 18-08-2005, when the appellant was crossing the B.M. Road near the Pravasi Mandir, Channarayapatna town, at that time, the rider of Bike bearing Registration No. KA-13/L-6533 came from New Bus stand side in a rash and negligent manner and dashed against her and as a result, she sustained bodily injuries. Immediately, she was shifted to the Hospital, where she took treatment as in-patient for four days and thereafter took follow-up treatment.

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. 33,47,900/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 1st January 2013. 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. 1,68,400/- 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 gone through the grounds urged by the appellants in the memorandum of appeal and heard learned counsel appearing for second respondent/Insurance Company, for considerable length of time.

It is the case of the appellant that she has sustained fracture of right temporal bone and the compensation awarded by Tribunal towards injury, pain and sufferings, medical expenses and conveyance, nourishing food and attendant charges, loss of income during treatment period, loss of amenities, discomfort and unhappiness and loss of future income is on the lower side and liable to be re-determined, by modifying the impugned judgment and award passed by Tribunal. It is the further case of the appellant that the Doctor has assessed 70% disability towards whole body, but disbelieving the same, the Tribunal has re-assessed the whole body disability at 20% and assessed the monthly income of the appellant at Rs. 3,000/-, which is on the lower side. The appellant has taken treatment for a period of four days as in-patient at NIMHANS Hospital and taken follow-up treatment for nearly two months. But, the tribunal has failed to consider all these aspects and award compensation of only a sum of Rs. 1,68,400/- for the grievous injuries sustained in the road traffic accident. Therefore, it is the case of the appellant that the compensation awarded by Tribunal is liable to be enhanced.

As against this, learned counsel appearing for second respondent/Insurer, inter alia, 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 after due consideration of the oral and documentary evidence available on file, nature of injuries sustained, permanent physical disability, nature and duration of treatment undergone and hence, interference in the same is unwarranted.

After going through the grounds urged in the memorandum of appeal, after hearing learned counsel appearing for second respondent/Insurer and after perusal of the judgment and award passed by Tribunal including the original records placed before us, 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 can be seen that, occurrence of accident at about 5:30 P.M. on 18-08-2005 and the resultant injuries sustained by appellant are not in dispute. It is further not in dispute that on account of the road traffic accident, she has sustained fracture of right temporal bone, bleeding from the right ear, scalp contusion on the right forehead, loss of conscious, papillary asymmetry and left side weakness and right temporal parietal extradural haematoma and the said injuries are stated to be grievous in nature. The Doctor has assessed functional disability of 70% towards particular organ. In the absence of radiological report, the Tribunal has assessed the whole body disability at 20%. The same, in our opinion is on the lower side. Having regard to the facts and circumstances of the case and also the nature of injuries sustained, etc. we take 1/3rd of 70%, which comes to 23.33%, rounded off to 23%, to meet the ends of justice. The appellant being aged about 30 years, has to endure this disability for the rest of her life. It is also not in dispute that she was aged about 30 years. It is stated that she was earning a sum of Rs. 8,250/- per month from animal husbandry work, cottage industries and also crafting work. But, to substantiate the same, she has not produced any documentary evidence. Therefore, in the absence of credible documentary evidence, the tribunal has assessed the income of the appellant at Rs. 3,000/- per month. The same, in our opinion is just and proper, considering the age, avocation and also the year of accident. Hence, it does not call for interference and accepted. The Tribunal, after assessing the oral and documentary evidence available on file and having regard to the age, avocation, nature of injuries sustained, nature and duration of treatment undergone, medical expenses and also the disability sustained by appellant, has erred in not awarding reasonable compensation under all the heads.

Further, it is stated that the appellant took treatment as in-patient for nearly four days and also took follow-up treatment for nearly two months. 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. For the age of the appellant, the proper multiplier applicable is ''17'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Therefore, having regard to the age, avocation, nature of injuries, disability, nature and duration of treatment undergone and the facts and circumstances of the case on hand, we award a sum of Rs. 50,000/- towards injury, pain and sufferings, as against Rs. 15,000/-; Rs. 15,000/- towards medical expenses, including conveyance, nourishing food and attendant charges as against Rs. 10,000/-; Rs. 9,000/- towards loss of income during treatment period, at the rate of Rs. 3,000/- per month for a period of three months as against Rs. 6,000/-; Rs. 30,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 15,000/- and Rs. 1,40,760/- towards loss of future income (i.e. Rs. 3,000/- x 12 x ''17'' x 23%) as against Rs. 1,22,400/- awarded by Tribunal.

Thus, the total compensation works out to Rs. 2,44,760/- as against Rs. 1,68,400/- awarded by Tribunal and there would be enhancement of compensation by a sum of Rs. 76,360/- with 6% interest per annum, from the date of petition till the date of realization.

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 1st January 2013, passed in MVC No. 38/2006, by the Senior Civil Judge & Motor Accident Claims Tribunal, Channarayapatna, is hereby modified, awarding a sum of Rs. 2,44,760/- as against Rs. 1,68,400/- awarded by Tribunal, with interest at 6% 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. 76,360/-, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment.

On such deposit by the Insurance Company, the entire sum shall be released in favour of the appellant, immediately.

Office to draw award, accordingly.