The General Manager, KSRTC vs M.T. Dhamodharan

N.K. Patil, J.—This appeal by the Corporation is directed against the judgment and award dated 14th October 2010, passed in MVC No. 10/2005, by the Senior Civil Judge and Motor Accident Claims Tribunal, Madikeri, (for short, ''Tribunal'') for reduction of compensation on the ground that, the compensation of Rs. 19,19,328/-, awarded in favour of the injured claimant as against his claim for Rs. 28,00,000/-, is highly exorbitant and excessive.

The facts in brief are that, at about 9:30 A.M., on 25-11-2003, when the injured claimant along with others was moving by Maruthi Van from his native place to Madapura, Somwarpet, near Hosathota, the driver of KSRTC Bus bearing Registration No. KA-01/F-7363 came from opposite direction, from Madiken towards Somwarpet in a rash and negligent manner and dashed against the Maruthi Van, due to which, the injured claimant and other inmates sustained grievous injuries and therefore, he was immediately shifted to Mangalore Nursing Home, where he took treatment as in-patient

It is the case of the injured claimant that, he was hale and healthy prior to the date of accident, which resulted in grievous injures to the claimant and that he was working a planter and also doing social work, earning a sum of more than Rs. 60,000/- per month. It is the further case of the claimant that, on account of the injuries sustained, he has spent considerable amount towards conveyance, nourishing food and attendant charges apart from other incidental expenses and has sustained permanent physical disability therefore, he has to be compensated reasonably.

On account of the injuries sustained, the claimant filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 28,00,000/- against the Corporation and others. The said claim petition had come up for consideration before the Tribunal on 14th October, 2010. 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. 19,19,328/- under different heads, with 6% interest per annum on Rs. 17,19,328/-, from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Corporation is in appeal before this Court, seeking substantial reduction of compensation.

We have heard the learned counsel appearing for Corporation and learned counsel appearing for injured claimant, gone through the grounds urged in the memorandum of appeal carefully and perused the impugned judgment and award passed by Tribunal.

Learned counsel appearing for Corporation, Smt. Sumangala A. Swamy, vehemently submits that the Tribunal erred in awarding exorbitant compensation towards loss of income during treatment period, loss of future income, future medical expenses and hence the same requires substantial reduction. To substantiate her submission, she pointed out that as per evidence of Doctor, the total functional disability sustained by injured claimant is 75% and 1/3rd of the same comes to 25% and even if another 5% is added towards shortening of leg by 4 cm., at best, the whole body disability could be assessed at 30% and not more than that. When such being the case, the Tribunal is highly not justified in assessing the whole body disability at 50%, which is contrary to the documentary evidence available on file. Therefore, she vehemently submitted that the whole body disability could at best be assessed at 30%, to meet the ends of justice.

She further pointed out that the Tribunal grossly erred in awarding a sum of Rs. 2,88,000/- towards loss of income during treatment period, which is on the higher side and the same is liable to be substantially reduced.

She also submitted that the Tribunal further slipped into an error in awarding a sum of Rs. 4,68,000/- towards loss of future income, taking the whole body disability at 50%, which cannot be sustained, at any stretch of imagination and therefore, the same is required to be reduced, by re-assessing the whole body disability at 30%.

She further submitted that the compensation awarded towards future medical expenses is also on the higher side and contrary to the evidence of the Doctor. Therefore, she submitted that the impugned judgment and award passed by Tribunal is liable to be modified by reducing the compensation substantially.

As against this, learned counsel appearing for injured claimant, inter alia substantiated the impugned judgment and award passed by Tribunal stating that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation under all the heads. To substantiate his submission, he submits that as per the evidence of the Doctor, the injured claimant has sustained grievous injuries, lacerated wound on right leg with fracture of both bones, i.e. tibia and fibula middle one third of right leg and swelling of right hip joint with fracture of acetabulum, dislocation of femoral head and fracture of hip bone and took treatment as in-patient for 290 days in different Hospitals and the disability assessed by Doctor has to be endured by the injured claimant throughout his life.

Further, he submitted that, in fact, the monthly income assessed by Tribunal at Rs. 6,000/- per month is on the lower side and liable to be re-assessed. Further, he submitted that the Doctor has clearly deposed that the injured claimant has to undergo future medical treatment including knee transplant, for which he has to incur future medical expenses. Therefore, considering all these aspects, the Tribunal is highly justified in awarding compensation under all the heads and therefore, interference in the impugned judgment and award passed by Tribunal is uncalled for.

After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the only point that arise for our consideration in this appeal is:

"Whether the quantum of compensation awarded by Tribunal is excessive and liable to be reduced?"

After careful perusal of the impugned judgment and award passed by Tribunal, it emerges that occurrence of accident and the resultant injuries sustained by the injured claimant are not in dispute. It further emerges that, the Tribunal, after critical evaluation of the oral and documentary evidence available on file, and also taking into consideration the age, avocation, year of accident, nature and duration of treatment undergone, nature of injuries, surgeries undergone by claimant, etc. has rightly awarded compensation of a sum of Rs. 7,50,128/- towards medical expenses as per the medical bills and prescriptions and Rs. 2,00,000/- towards future medical expenses. Hence, interference in the same is not called for.

However, so far as compensation awarded towards injury, pain and sufferings, conveyance, nourishing food and attendant charges, loss of amenities, discomfort and unhappiness on account of disability is concerned, the same is on the lower side and needs to be re-determined. It is stated that the claimant was hospitalized for a period of total 290 days in different Hospitals. During this period, he would have spent reasonable sum towards conveyance, nourishing food and attendant charges apart from incidental expenses and also suffered unsaid pain and agony. However, in the absence of credible documentary evidence, the Tribunal has rightly assessed the income of the injured claimant at Rs. 6,000/- per month, at the rate of Rs. 200/- per day, and we accept the same. Accordingly, having regard to the facts and circumstances of the case, including age, avocation, nature of injuries sustained, nature and duration of treatment, pain and sufferings of the injured claimant, etc. we award a sum of Rs. 1,00,000/- towards injury, pain and sufferings as against Rs. 50,000/-; Rs. 50,000/- towards conveyance, nourishing food and attendant charges as against Rs. 34,200/- and Rs. 75,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 35,000/- awarded by Tribunal.

Further, so far as compensation awarded towards loss of income during treatment period and loss of future income is concerned, the same is on the higher side and cannot be sustained. Looking at the nature of injuries sustained, we presume that the claimant must have taken bed rest and follow-up treatment at least for a period of thirty-six months. Therefore, we award a sum of Rs. 2,16,000/- towards loss of income during treatment period at the rate of Rs. 6,000/- per month for a period of thirty-six months as against Rs. 2,88,000/- awarded by Tribunal.

Further, so far as compensation awarded towards loss of future income is concerned, we are of the opinion that the same is on the higher side and liable to be re-determined. C.W. 1, Doctor has deposed that on 12-07-2008, when he examined the injured claimant for physical disability, there was complaint of inability to walk without walking aids and even with the walking aids, he had pain in the right hip knee joint, ankle, foot and on clinical examination, he assessed functional disability at 30% of movement possible with pain and right hip joint and he cannot squat or sit on the low stool due to stiffness and pain and there was shortening of right lower limb by 4 cm. and right knee heel and stiffness with 10 to 50 degree of movement waiting of thigh and calf mussels and there was non union of middle right leg tibia, right ankle pain stiffness of ankle joint, foot toes and extensive scaring of thigh and leg and in view of that the Doctor assessed 75% disability involving right lower limb. 1/3rd of the said functional disability of 75% comes to 25%. But, the Tribunal has re-assessed the whole body disability at 50%. The same is on the higher side. Considering the nature of injuries sustained coupled with the oral evidence of the Doctor and also considering the fact that there is shortening of right lower limb by 4 cm., we re-assess the whole body permanent physical disability at 30%, to meet the ends of justice. The claimant has to endure this disability for the rest of his life. Further, we have already upheld the monthly income of Rs. 6,000/- assessed by Tribunal, as just and proper. Since the claimant was aged about 48 years, the proper multiplier applicable is ''13'' as per the decision of the Hon''ble Apex Court 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 as rightly adopted by Tribunal. Thus, the compensation towards loss of future income would work out to Rs. 2,80,800/- (i.e. Rs. 6,000/- x 12 x ''13'' x 30/100) as against Rs. 4,68,000/- awarded by Tribunal.

Thus, the total compensation would come to Rs. 16,71,928/- as against Rs. 19,19,328/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. There would be reduction of compensation by Rs. 2,47,400/-.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Corporation is allowed in part. The impugned judgment and award dated 14th October 2010, passed in MVC No. 10/2005, by the Senior Civil Judge and Motor Accident Claims Tribunal, Madikeri, is hereby modified, reducing the total compensation from Rs. 19,19,328/- awarded by Tribunal, to Rs. 16,71,928/- (reduction being Rs. 2,47,400/-), with interest at 6% per annum, from the date of petition till the date of realization.

The Corporation is directed to deposit the remaining compensation, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award.

The apportionment and the manner of disbursement of compensation ordered by Tribunal gets proportionately reduced to the extent of reduction of compensation made by this Court.

The statutory amount in deposit by the Corporation is directed to be transmitted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly.

In view of disposal of the matter on merits, I.A. No. 1/2012 for return of LCRs stands disposed of as having become infructuous.