Vidhya Shree vs S. Umesh Nayak and Others

N.K. Patil, J.—This appeal by the claimant is against the impugned judgment and award dated 19th January 2012 passed in MVC No. 607/2011 on the file of the Fast Track Court at Udupi, (hereinafter referred to as ''Tribunal'' for short) seeking enhancement of compensation.

The Tribunal by its judgment and award, has awarded a sum of Rs. 5,83,885/- 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 grievous injuries sustained by the appellant in the road traffic accident. The claimant has presented this appeal on the ground that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement.

It is the case of the appellant/claimant as per the claim petition that she was aged about 9 years prosecuting her studies in 4th Standard, hale and healthy prior to the accident. Be that as it may, that on 18.12.2010 at about 1.00 p.m. the claimant along with her grandfather Parvatha Gowda Patila was walking on the mud road towards Udupi side from Bannanje. At that time, a Tempo bearing Registration No. KA-20/A-6938 driven by its driver came from Karavali By-pass towards Udupi side in a rash and negligent manner and dashed against the appellant. Due to the impact, she sustained lacerated wound over chin about 3.1 cms., multiple deep abrasions over left leg, delving injury to right leg extending from right knee to ankle with crushing of all the muscles, blood vessels and nerves, comminuted fracture both tibia and fibula right leg. There is amputation of right leg below the knee. On account of which, she has undergone treatment as inpatient in the Hospital. It is the case of the appellant that her parents have spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges and she has examined the Doctor - PW-2 - Dr. Umesh Prabhu, who in turn after due clinical and medical examination assessed the disability to the extent of 75%. The Tribunal has taken the permanent disability to whole body as 70% and further it is the case of the appellant that she has suffered mental agony during the treatment period and also undergone surgery and the Doctor has advised her to take bed rest and follow-up treatment. She had lost one academic year and due to this she frustrated and has to endure through out her life. She requires some money towards her future medical expenses, viz. towards purchase of artificial limb. Due to the permanent disability, she has lost her marriage prospects and she must be compensated by awarding reasonable compensation towards disability, discomfort, etc. Taking all these aspects into consideration, she has filed a claim petition under Section 166 of M.V. Act before the Tribunal claiming compensation against the respondents - owner and insurer. The said claim petition had come up for consideration before the Tribunal. The Tribunal after hearing both sides and after due appreciation of the oral and documentary evidence available on record, has allowed the said claim petition in part and awarded a sum Rs. 5,83,885/- with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the impugned judgment and award passed by the Tribunal, the appellant felt necessitated to file this appeal, seeking enhancement of compensation.

The submission of learned counsel appearing for the appellant, Sri. N. Shanth Kumar appearing for Sri. R. Shivcharan at the outset is that, the Tribunal has erred in not taking the reasonable income of the appellant and assessing the same at Rs. 15,000/- p.a. as notional income is on the lower side. He further submitted, in the light of the judgment of the Apex Court, the appellant''s notional income may be taken at Rs. 30,000/- p.a. instead of Rs. 15,000/- p.a. and further it is submitted that the Tribunal is also not justified in not awarding reasonable compensation under the head pain and suffering, loss of marriage prospects, future medical expenses, loss of future income on account of permanent disability sustained by her in the road traffic accident. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing reasonable compensation.

As against this, the learned counsel appearing for the 2nd respondent - Insurer Sri. K. Suresh, inter alia, contended and substantiated that, the impugned judgment and award passed by the Tribunal is after due consideration of oral and documentary evidence and other materials available in the file, it does not call for interference by this Court. However, after going through the evidence on record, specifically the Doctor''s evidence and the age of the appellant/claimant, he fairly submitted that some enhancement may be made towards injury, pain and suffering, loss of marriage prospects, future medical expenses, loss of future income in accordance with law and in the light of the judgment of Apex Court and this Court.

After carefully considering the submissions made by the learned counsel appearing for both the parties and on perusal of the impugned judgment and award passed by the Tribunal, the only point that arises 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 there is amputation of right leg, below knee and she was aged about 9 years at the time of accident and prosecuting her studies in 4th standard. She examined the Doctor. The Doctor has assessed the permanent disability at 75% but the Tribunal has assessed only 70% towards whole body disability. She has lost one academic year. The Tribunal has rightly awarded Rs. 71,385/- towards medical expenses as per medical bills, Rs. 30,000/- towards conveyance, nourishing food and attendant charges, Rs. 20,000/- towards loss of education for one academic year, Rs. 1,00,000/- towards loss of amenities, discomfort, unhappiness. Therefore, it does not call for interference by this Court.

However, the Tribunal erred in not awarding reasonable compensation towards injury, pain and suffering, loss of marriage prospects, future medical expenses and loss of future income. After appreciation of the oral and documentary evidence available in file, what emerges is that the Tribunal has erred in not taking the reasonable income of the appellant and in the light of the judgment of Apex Court in catena of judgments, we can safely re-assess the income of the appellant @ Rs. 30,000/- p.a. instead of Rs. 15,000/- p.a. as assessed by the Tribunal. The appellant had suffered mental pain and agony during the treatment period and she also underwent a surgery for amputation of right leg below knee and her marriage prospects are affected as she is just aged about 9 years and she has to be compensated on account of grievous injuries and disability sustained by her in the road traffic accident.

Taking all these relevant facts referred above, we deem fit to award a sum of Rs. 1,50,000/- towards injury, pain and agony as against Rs. 1,25,000/-, Rs. 1,50,000/- towards loss of marriage prospects as against Rs. 50,000/-, Rs. 50,000/- towards future medical expenses including the tentative cost of artificial limb as against Rs. 30,000/-, Rs. 3,15,000/- (Rs. 30,000/- x 70 x 15/100) towards loss of future income on account of disability suffered in the road traffic accident as against Rs. 1,57,500/-. The breakup is as follows:

In all, the appellant/claimant is entitled for total compensation of Rs. 8,86,385/- as against Rs. 5,83,885/-. There is enhancement of Rs. 3,02,500/-. As rightly contended by the learned Counsel appearing for the appellant that the rate of interest awarded by the Tribunal at 6% p.a. is on the lower side. In the light of the judgments of Apex Court and also this Court in catena of judgments, we deem fit to award the interest at 8% p.a. on the enhanced compensation amount from the date of petition till the date of realization.

Having regard to the facts and circumstances of the case referred above, the instant appeal filed by the appellant is allowed in part. The impugned judgment and award dated 19th January 2012 passed in M.V.C. No. 607/2011 on the file of the Fast Track Court at Udupi is hereby modified awarding a sum of Rs. 3,02,500/- with interest at 8% p.a. from the date of petition till the date of realization, in addition to the compensation awarded by the Tribunal.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,02,500/- with interest at 8% p.a. from the date of petition till the date of realization, within a period of three weeks from the date of receipt of a copy of the judgment and award.

Out of the enhanced compensation of Rs. 3,02,500/-, Rs. 2,27,500/- with proportionate interest shall be invested in Fixed Deposit in the name of the appellant - Kum. Vidhya Shree in any Nationalized or Scheduled Bank or Grameena Bank, till she attains the age of 30 years and the natural guardian of the appellant, i.e. mother is entitled to withdraw the periodical interest accrued on it for the welfare of the appellant till she attains the age of 21 years. From 22 years to 30 years, the appellant/claimant is entitled to withdraw the interest periodically.

The remaining Rs. 75,000/- with proportionate interest shall be released in favour of the natural guardian Smt. Sumangala @ Annapurna immediately, on deposit by the 2nd respondent - Insurer.

Draw the award, accordingly.