Universal Sompo GIC Ltd. vs Govinda Nayak and Others

N.K. Patil, J—This appeal by the Insurer is directed against the judgment and award dated 13th November 2013, passed in MVC No. 294/2013, by the III Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Bengaluru (SCCH-18), (for short, ''Tribunal'') for reduction of compensation on the ground that, the compensation of Rs. 21,89,010/-, awarded in favour of the injured claimant as against his claim for Rs. 25,00,000/-, is highly exorbitant and excessive.

The facts in brief are that, at about 11:00 A.M., on 11-12-2012, when the injured claimant was riding the Motor Cycle bearing Registration No. KA-42/K-1482, from Kanakapura side towards Harohalli, near Kuigowdana Doddi, Kanakapura-Bangalore road, the driver of Tata Indicab bearing Registration No. KA-04/C-7709 came at a high speed, in a rash and negligent manner and dashed against the motorcycle. Due to the impact, he fell down and sustained simple as well as grievous injuries and suffered pain and agony and financial loss. Immediately, he was shifted to the Hospital.

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 him and that he was working as loader and un-loader and also working as a granite cutter at Riddi Granites, Gabbadi Kaval, Kanakapura-Bangalore main Harohalli, Bangalore, earning Rs. 10,000/- per month. It is the further case of the claimant that, on account of the road traffic accident, he suffered grievous injuries and permanent disability as there is complete motor sensory defect in the right upper limb and he cannot continue his job.

On account of the injuries sustained, the claimant filed the claim petition before the Tribunal, seeking compensation of a sum of Rs. 25,00,000/- against the Insurer and another. The said claim petition had come up for consideration before the Tribunal on 13th November, 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. 21,89,010/- under different heads, with 8% interest per annum from the date of petition till the date of deposit. Being highly aggrieved by the quantum of compensation awarded by the Tribunal, the Insurer is in appeal before this Court, seeking substantial reduction of compensation.

We have heard the learned counsel appearing for Insurer 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 Insurer, Shri. H.N. Keshava Prashant, vehemently submits that the Tribunal committed a grave error, resulting in miscarriage of justice, in assessing the monthly income of the injured claimant at Rs. 10,000/-, wherein the accident has occurred on 11-12-2012 and the claimant was aged about 35 years and working as a loader and un-loader. Therefore, he submitted that the monthly income assessed by Tribunal at Rs. 10,000/- may be reduced substantially and reasonable monthly income may be re-assessed between Rs. 6,500/- and Rs. 7,500/-.

He further submitted that the Tribunal further erred in assessing the permanent whole body disability of the injured claimant at 100%, contrary to the evidence on record. Considering the nature of injuries sustained, the permanent whole body disability may be re-assessed at 70%, as against 100% assessed by Tribunal. All these aspects of the matter are not properly considered or appreciated by the Tribunal, while awarding compensation. Therefore, he submitted that the impugned judgment and award passed by Tribunal is liable to modified by reducing the compensation substantially.

As against this, Shri. Prakash M.H., 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 and considering the age, avocation, nature of injuries sustained, nature and duration of treatment undergone, functional and whole body disability, etc., has rightly awarded compensation under all the heads. In fact, considering the nature and gravity of the injuries sustained and the avocation of loader and un-loader, the compensation awarded by Tribunal towards injury, pain and sufferings and loss of amenities is on the lower side. Further, the Tribunal has not awarded any compensation towards future medical and incidental expenses. All these aspects of the matter may be reconsidering taking judicial note and reasonable compensation be determined in accordance with law.

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 at about 11:00 AM. on 11-12-2012 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 and gravity of injuries sustained, surgeries undergone by claimant, etc, has rightly awarded compensation of a sum of Rs. 99,010/- towards medical expenses as per the medical bills and Rs. 90,000/- towards conveyance, nourishing food and attendant charges, considering the number of days of treatment, etc. Hence, interference in the same is not called for.

However, so far as compensation awarded towards injury, pain and sufferings, loss of income during treatment period, loss of amenities, discomfort and unhappiness on account of disability is concerned, the same is on the lower side and liable to be enhanced.

Further, so far as compensation awarded towards loss of future income is concerned, the same is on the higher side and liable to be re-determined. Admittedly, on account of the road traffic accident, the injured claimant has sustained fracture of both bones of right fore arm and brachial plexus injury. The Doctor has deposed that the claimant has got complete motor sensory defect in right upper limb after the accident and there is no improvement in neurological status at the time of discharge. Further, PW3 has deposed that since the claimant has suffered PAN RIGHT PLEXOPATHY, there is no treatment for the correction of brachial injury and it cannot be reversible. Considering the nature and gravity of the injuries sustained by the claimant, the Tribunal has assessed the whole body disability at 100%. The same in our view is on the higher side and liable to be re-assessed. Considering the nature and gravity of the injuries and also the age and avocation, we re-assess the whole body permanent disability at 75%, to meet the ends of justice. Further, the income assessed by Tribunal at Rs. 10,000/- per month is also on the higher side. Therefore, having regard to the age, avocation, and also year of accident, we re-assess the monthly income of the injured claimant at Rs. 8,500/-, to meet the ends of justice. Further, since the claimant was aged about 35 years, the proper multiplier applicable is ''16'' 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.

Accordingly, having regard to the facts and circumstances of the case, including age, avocation, nature and gravity of injuries sustained, nature and duration of treatment, pain and sufferings of the injured claimant, etc. we award a sum of Rs. 1,50,000/- towards injury, pain and sufferings as against Rs. 50,000/-; Rs. 25,500/- towards loss of income during treatment period, at the rate of Rs. 8,500/- per month for a period of three months; Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 30,000/-; and Rs. 12,24,000/- ( Rs. 8,500/- x 12 x 16 x 75/100) as against Rs. 19,20,000/- awarded by Tribunal.

Further, it is seen that the Tribunal has not awarded any compensation towards future medical expenses. Considering the nature of injuries sustained, oral evidence of the Doctor, surgery undergone, nature and duration of treatment undergone etc, we award a sum of Rs. 1,00,000/- towards future medical expenses including incidental expenses.

Thus, the total compensation would come to Rs. 17,88,510/- as against Rs. 21,89,010/- awarded by Tribunal, with interest at 8% per annum, from the date of petition till the date of realization. There would be reduction of compensation by Rs. 4,00,500/-.

In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurer is allowed in part.

The impugned judgment and award dated 13th November 2013, passed in MVC No. 294/2013, by the III Additional Senior Civil Judge and Member, Motor Accident Claims Tribunal, Bengaluru (SCCH-18), is hereby modified, reducing the total compensation from Rs. 21,89,010/- awarded by Tribunal, to Rs. 17,88,510/- (reduction being Rs. 4,00,500/- ), with interest at 8% per annum, from the date of petition till the date of realization.

The Insurer is directed to deposit the remaining compensation, with interest thereon at 8% 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 Insurer is directed to be transmitted to the jurisdictional Tribunal, forthwith.

Office to draw award, accordingly.