Uma P. Shenoy vs Kulyadi Marthu Pai and Others

N.K. Patil, J.—This appeal by the claimant is arising out of the impugned judgment and award dated 31st December 2009 passed in MVC No. 15/2002 on the file of the MACT-VIII and III Additional, Civil Judge, (SR. DN), Mangalore, D.K. (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 29,67,000/- with interest at 6% p.a., from the date of petition till its realization as against the claim of Rs. 15,00,000/- made by the appellant, on account of the injuries sustained by her in the road traffic accident.

It is case of the appellant that, she was aged about 26 years as on the date of accident, hale and healthy and a home maker and also working as a professional computer data entry operator and earning Rs. 5,000/- p.m. and also she was an income tax assessee. On 7.2.99 at about 11.20. p.m., the appellant was traveling in a Mercedes Benz Car, bearing Reg. No. KA-21-2277 belonging to her brother-in-law, Gandhmagar at Mangalore along with her husband Premnath N. Shenoy and wife of 1st respondent on the National Highway. At about 11.30 p.m. the said car was driven by the 1st respondent in high speed, when it reached a spot near Tarethota and the cow was crossing the road, the same was not noticed by the 1st respondent. To try to save the cow, the 1st respondent tried to overtake the same and came to the extreme right side of the road, where he lost control over the car, as a result of the same the vehicle fell into a valley by the side of the National Highway. Due to the impact, the appellant has sustained grievous injuries and fell unconscious. The appellant was shifted to S.C.S. Hospital, Bendoor, Mangaflore for treatment. She has suffered injuries to the spine back (L) shoulder and leg with fractured dislocation of spinal cord at T12 vertebrae with displacement, fractured right fibula, fractured lateral end of the left cervical and serious injuries to the other parts of the body. The appellant was under treatment at S.C.S. Hospital for about 10 days and she under gone surgeries and for better treatment she was airlifted to Manipal Hospital, Bangalore. She was totally bed ridden and she was unable to get up and move her body. She was treated for five months at Manipal Hospital, Bangalore. Inspite of all these continuous medication and treatment there is no improvement and she could not get control over urinary bladder, bowels and she completely lost the sensation and motion power below the prom. Inspite of the repeated attempts of better medication, operation, the appellant could not recover from the grievous fatal injuries in the road traffic accident. On account of which she has under gone treatment for several months. As per the evidence of the doctor, there is 70% disability to the whole body. The functional disability is 100%. She has suffered pain and mental agony and spent huge amount towards medical expenses and attendant charges and she has to suffer through out her life and she lost her future marital life. She has spent towards loss of future income and taking the age of the appellant the appropriate multiplier applicable is 17. She has spent considerable amount towards medical expenses during the pendency of this appeal. Due to the injuries sustained in the said accident, the appellant is totally disabled and is not in a position to sit also and she has suffered total loss of earning capacity. For the rest of her life, she has to depend upon the assistance of an attendant. On account of the grievous injuries caused in the accident, which resulted in the permanent disablement, the appellant cannot work in future thereby suffered loss of income. Further case of the appellant is that, she has spent huge amount for treatment, conveyance, nourishing food and attendant charges. Taking all these factors, she has filed a claim petition under Section 166 of MV Act before the Tribunal claiming compensation against the respondents. The said claim petition had come up for consideration before the Tribunal. To substantiate her case, she examined herself as PW1, Sri. Nagesh Shenoy as PW2, Sri. Suresh as PW3, Sri. Raghvendra Kamath as PW4, Dr. Ganashyam Kamath as PW5 and Sri. Premnath as PW6 and marked documents as Exs. P1 to P. 109. Respondents have got examined Sri. Jecmtha Fernandes as RW1 and got marked Ex. R1. The Tribunal after hearing both sides and after appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum of Rs. 29,67,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the quantum of compensation awarded by the Tribunal, so far as it relates to pain and sufferings, loss of amenities, conveyance, Medical expenses, loss of income, Nutritious food and attendant charges, appellant has presented this appeal, seeking enhancement of compensation.

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

Sri B.V. Krishna, learned counsel appearing for the appellant submits that, in view of allowing of I.A. No. 1/15 for production of additional documents, viz., medical bills, prescriptions and other incidental expenses admitting to about Rs. 15,00,000/-, reasonable enhancement may be made by awarding compensation towards medical expenses and incidental charges. Tribunal has failed to assess the just and reasonable income of the appellant and the income of Rs. 3,000/- per month by the Tribunal is on the lower side. The Tribunal has not considered the income of the deceased properly as she was home maker and also working as professional computer data entry on free lance basis and was earning a monthly income of Rs. 5,000/- p.m. and she had a bright future in the said field.

Further he submitted that in the light of nature of injuries sustained inspite of several medication, there is no improvement but there is some improvement due to the treatment by way of physiotherapy and there is 100% disability to the whole body. She had also engaged the services of nurse by paying an amount of Rs. 2,000/- p.m. and her physical condition is that she must employ a permanent nurse thought her life for her care and assistance. She has suffered permanent disability and the part of the body below the waist has become completely paralyzed. She cannot sit in the same position for more than 1 to 1 1/2 hour per day she has to spend money towards future medical expenses and physio Therapy. The Tribunal has not considered all these aspects nor awarded reasonable compensation towards these heads. Therefore, impugned judgment and award passed by the Tribunal is liable to be modified, awarding just and reasonable compensation and also the reasonable rate of interest.

Per contra, the learned counsel Sri. A.N. Krishna Swamy, appearing for the respondent No. 2-Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. It is passed after considering the oral and documentary evidence and interference by this Court is not called for. Further he submitted that having regard to the facts and circumstances of the case the compensation awarded by the Tribunal may be modified in accordance with law. Further he submitted in view of allowing LA No. 1/2015 towards medical bills produced along with prescriptions are found to be genuine in nature and is signed by the hospital authority and bills issued by the medical shop. The same may be accepted and reasonable amount may be awarded in accordance with law. Further he submitted in the event of this Court accepting additional documents produced in LA 1/2015 and award compensation towards medical expenses and incidental charges then the appellant is not entitled for any interest for the said amount.

After considering the submissions made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the only point that arise for consideration is:

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

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further it is not in dispute that the appellant was aged about 26 years as on the date of accident and hale and healthy prior to the accident and she is a home maker and was working as professional computer data entry on free lance basis and was earning a monthly income of Rs. 5,000/- p.m. But the Tribunal took only Rs. 3,000/- p.m. as his income, which is on the lower side. But the appellant has not produced any documents to show her income. Further, as rightly pointed out by the learned counsel appearing for the appellant, the income of the appellant assessed by the Tribunal is on lower side and having regard to the age, avocation and year of accident, we can safely reassess the income at Rs. 4,000/- per month, to meet the ends of justice.

On account of the aforesaid injuries sustained in the accident, she was under follow up treatment. The nature of disability is permanent in nature and there is 100% disability to the whole body but the Tribunal has erred in not assessing the disability properly. After perusing the evidence of doctor it is seen that the nature of injuries sustained is permanent in nature and we can safely reassess 100% disability to whole body, to meet the ends of justice. She has suffered mental agony during treatment period and she has spent huge amount towards medical expenses and attendant charges and she lost her future marital life on account of grievous injuries sustained in the road traffic accident and disability is permanent in nature. She was aged about 26 years and appropriate multiplier applicable is 17. Since we permitted the learned counsel appearing for the appellant to produce additional documents by allowing I.A. No. 1/2015 towards future medical expenses and incidental charges, we award a sum of Rs. 16,00,000/- towards medical expenses to meet the ends of justice. Taking into consideration all these aspects, we deem fit to award Rs. 1,50,000/- towards pain and sufferings as against Rs. 50,000/-. Rs. 1,00,000/- towards attendant charges as against Rs. 25,000/-, Rs. 2,00,000/- towards loss of amenities, discomfort and unhappiness in life as against Rs. 1,00,000/-. Rs. 8,16,000/- (Rs. 4,000/- x 12 x 17) towards loss of future income as against Rs. 4,53,600/- and Rs. 16,00,000/- towards Future Medical expenses as against Rs. 50,000/-. However, the Tribunal has rightly awarded a sum of Rs. 22,38,400/- towards Medical Expenses. Therefore, interference by this Court is not called for.

Having regard to the facts and circumstances of the case, as stated above, appeal is allowed in part. The impugned judgment and award dated 31.12.2009 passed by the Tribunal in MVC No. 15/2002 is hereby modified. The total compensation payable comes to Rs. 51,04,400/- with 6% interest per annum as against Rs. 29,67,000/- and the break-up is as follows:

Enhanced compensation comes to Rs. 21,37,400/- The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 21,37,400/- with interest at 6% p.a., from the date of petition till the date of realisation, excluding interest on Rs. 16,00,000/- towards present medical expenses, within three weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation of Rs. 21,37,400/- 50% shall be invested in the Fixed Deposit in any Nationalized/Scheduled/Grameena Bank, in the name of the appellant for a period often years and renewable for another ten years, with liberty to her to withdraw the periodical interest accrued on it.

The remaining 50% shall be released in favour of the appellant immediately, on deposit by the Insurer.

Draw the award, accordingly.