Vanishri G. vs B.J. Ashoka and Others

N.K. Patil, J.—This appeal by the claimant is arising out of the impugned judgment and award dated 18.12.2012 passed in MVC No. 618/2012 on the file of the XI Addl. Judge & MACT, Court of Small Causes, Bangalore City (SCCH-12) (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 1,57,920/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by her in the road traffic accident.

It is the case of the appellant that, she was aged about 23 years as on the date of accident, hale and healthy and working as teacher, earning Rs. 8,000/- p.m. She has produced salary certificate at Ex. P22. On 11.4.2011 at about 5.00 p.m the appellant was traveling with others in a Mahendra van bearing No. KA-41-M-4764 from Bangalore to Haven to visit a temple, near Chitradurga opposite to Balarama Reddy Damber-Crusher, NH-4. At that time, a lorry bearing No. KA-16-A-9073 which was going in front of the car took a immediate right turn without signal, which was a no turn and dashed against the appellant''s car. Due to which the appellant sustained fracture roof of the acetabulum medical column, posterior column and iliac bone involving (left) sacroiliac joint etc. The Mahendra van was also badly damaged. Immediately she was shifted to Chitradurga hospital and then to KIMS hospital, Bangalore where she was admitted as inpatient from 12.4.2011 to 12.5.2011. As per PW5, Dr. Somashekar after medical examination has assessed the disability at about 30% to the left hip and 15% to the whole body. Further case of the appellant is that, she has spent huge amount for treatment, conveyance, nourishing food and attendant charges. Therefore, she 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 his case, she examined herself as PW3, Dr. Somashekar as PW5 and Dr. Somashekar as PW6 and got marked documents as Exs.P1 to P34. Respondents 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. 1,57,920/- 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, medical and traveling expenses, attendance charges, etc. loss of future earning capacity and also disability on account of the injuries sustained in the road traffic accident, 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 Lokesh Malavalli, learned counsel appearing for the appellant submits that, the Tribunal has erred in not assessing the reasonable income of the appellant, as she was getting income of Rs. 8,000/- but the Tribunal has erred in assessing the income of the appellant at only Rs. 4,000/- per month and it further erred in not assessing the reasonable functional and whole body disability as per the evidence of the doctors PWs. 5 & 6. Further, Tribunal has committed an error in awarding lesser compensation towards pain and sufferings, medical and traveling expenses, attendant charges, loss of future earning capacity. Therefore, impugned judgment and award passed by the Tribunal is liable to be modified awarding just and reasonable compensation.

Per contra, Sri. P.B Raju the learned counsel appearing for the 2nd respondent-Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper and is after considering the oral and documentary evidence and interference by this Court is not called for.

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 23 years as on the date of accident and hale and healthy. She was working as teacher, getting salary of Rs. 8,000/- p.m. Having regard to the age, avocation and year of accident, we deem it fit to reassess the income of the appellant at Rs. 6,000/- p.m to meet the ends of justice. As per wound certificate at Ex. P17 the appellant sustained following injuries:

"Both hip; fracture of right acetabular roof, CT scan of pelvis of both hip joint, Segmental fracture of roof of left acetabular with extension medially, segmental fracture of the port column of the right acetabulum with avulsed fracture fragment located laterally measuring 1.6 x 0.4 cms. There is chip fracture of the ant column of left acetabulum. Fracture of the intero supero medial part of the left iliac bone with fracture line extending muscle to involve the articular surface of the left scrap iliac joint. Left sacro-iliac joint dislocation with few tiny loose fracture fragments located."

The appellant took treatment at Chitradurga hospital for one day and thereafter she was shifted to KIMS hospital, Bangalore and she was an inpatient from 12.4.2011 to 12.5.2011 for 31 days. Further PW6-doctor has deposed in his evidence that the appellant has sustained fracture roof of the acetabulum medical column, posterior column and iliac bone involving left sacroiliac joint. On the day of admission lower femoral skeletal traction applied. She also took follow up treatment as out patient. Thus the appellant has made out a case for enhancement of reasonable compensation under different heads. Taking into consideration all these aspects, we deem fit to award Rs. 50,000/- towards pain and sufferings as against Rs. 40,000/-, Rs. 10,000/- towards conveyance, nourishing food and attendant charges as against Rs. 5,000/-, Rs. 18,000/- (Rs. 6,000/- x 3months) towards loss of income during treatment period as against Rs. 16,000/- and Rs. 2,00,000/- towards Loss of future earning as against Rs. 69,120/-.

However, the Tribunal has rightly awarded a sum of Rs. 17,800/- towards medical and traveling 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 18.12.2012 passed by the Tribunal in MVC No. 618/2012 is hereby modified. The total compensation payable comes to Rs. 2,95,800/- with 9% interest per annum on the enhanced sum as against Rs. 1,57,920/- and the break- up is as follows:

Enhanced compensation comes to Rs. 1,37,880/-. The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 1,37,880/- with interest at 9% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment and award.

Out of the enhanced compensation of Rs. 1,37,880/- 50% of sum with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled/Grameena Bank, in the name of the appellant for a period of five years and renewable for another five years, with liberty to her to withdraw the periodical interest accrued on it.

The remaining 50% of the enhanced compensation with proportionate interest shall be released in favour of the appellant immediately, on deposit by the Insurer.

Draw the award, accordingly.